BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.497 of 2018

      Date of Instt. 04.12.2018

      Date of Decision:16.06.2022

1.       Parvesh Gupta, aged 41 years S/O Kewal Krishan Gupta, H. No,       Sodal Road, Jalandhar City-144003.

2.       Disha Gupta aged 15 years (Minor) D/O Parvesh Gupta, H. No.9,     Sodal Road, Jalandhar City-144004 through Parvesh Gupta     (Complainant No.1) Father and Next Friend

..........Complainants

Versus

1.       Star Health and Allied Insurance Company Limited, Branch Office, EH 198, Second Floor, Nirmal Complex, GT Road, Jalandhar-Through its Branch Manager.

2.       Star Health and Allied Insurance Co. Ltd. No.15, Sri Balaji Complex, 1^st Floor, Whites Lane, Roy Apettah, Chennai-600014 through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Smt. Harleen Kaur, Adv. Counsel for Complainants.

                   Sh. Nitish Arora, Adv. Counsel for OPs No.1 and 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant No.1 was allured and induced by tempting lucrative benefits of Family Health Optima Insurance Policy and was advised switching over under portability provisions from National Insurance Company Limited on the assurance that Health Insurance Policy of OPs is suitable, beneficial and advantageous to the need and requirements for risk coverage. On the inducement, the complainant No.1 was canvassed, persuaded and made to agree to switch over under portability provisions issued by IRDA. The complainant was taken in by sweet words and believing gentleman honest assurance bonafide agreed for switching over under the portability provisions from National Insurance Company Limited to OPs without losing and previous continuous renewal benefits flowing there from and occurring since inception of policy of National Insurance Company Ltd. The OPs covered the risk to reimburse/indemnify inpatient treatment expenses for period more than 24 hours, pre-hospitalization, hospitalization for illness/disease/ailment and surgical treatment, domiciliary treatment at any nursing home/hospital including cashless facility of the complainant and other co insured his wife as under:-

                   Basic Floater Sum Assured Rs.10,00,000/- and Policy No.P/212/501/2017/001035 was allotted for policy period from 03.10.2017 to 02.10.2018 (Midnight) by renewal without any gap or break by OPs. The authorized agent/advisor filled in prescribed printed Proposal Form dated 29.10.2015 for portability to switch over in accordance with provisions of Portability Scheme framed by IRDAI for health Mediclaim insurance policy was continuous since year 2014 onwards including inception of policy of previous insurer. In nutshell, the complainant has been regularly and punctually insured for over last 4 years without any gap/break by renewal from inception of proposal dated 29.09.2015 without any rancor and demur.

2.                Disha Gupta daughter Complainant No.2 of the complainant No.1 co-insured suffered illness with knock knee of both limbs deformity (left…. Right). This deformity was first observed around a year ago in year 2016 and has slowly progress over time. There is/was no history of proceeding trauma or infection in the knee. Finally, diagnoses after required relevant tests and clinical examination by Max Health Care, New Delhi was as under:-

                   “Bilateral genu valgum- Asymmetric deformity severe    deformity Left side. Mild deformity on right side Idiopathic-?   Vitamin D deficiency.”

                    That subsequent to discharge from said hospital, the complainant submitted claim on the Prescribed Claim Form alongwith Bills and Payment receipts for amount of Rs.2,05,174/- incurred by the complainant to OP No.1 which in turn forwarded the same to OP No.2 for reimbursement of mediclaim of health insurance policy to the complainant No.1. All the original documents pertaining to Health Insurance Policy are with OPs No.1 and 2. The complainant No.1 completed and complied with all formalities and requirements whichever were asked for settlement and payment of health insurance policy. To utter astonishment and shock the complainant No.1 received a letter dated 02.02.2018 captioned Repudiation of Claim inter-alia alleging as under:-

                        “It is observed from the consultation report dated        15.05.2017 of Dr. Arvind Taneja that the insured patient has       deformity from 2 years which confirms the patient has the above      disease prior to their policy. The present admission and           treatment of the insured patient is for the non-disclosed disease.    As per condition No.6 of the policy issued.”

                        The OPs had wrongly and perversely cancelled the policy unilaterally, arbitrarily and malafide. The cancellation of the policy was erroneous and perverse when the claim of the complainant was not hit by any such exclusion clause or alleged non-disclosure. The cancellation letter was cryptic, non-speaking and unreasoned. Most importantly and significantly against the provisions of the Insurance Act. The cancellation of policy as such is not binding on the complainants in any way. The act of OP No.2 was unilateral and arbitrary. The cancellation of policy was not only illegal but bad in law absurd void abnitio, but also untenable in law. The OP No.2 had not informed the reason of alleged cancellation of health insurance policy nor refunded the premium, so the act and conduct of the OPs was callous and cancellation was nothing but an attempt to avoid reimbursement of bonafide legitimate claim amount and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay/reimburse expenses of Rs.2,05,174/- to complainant No.1 is entitled since the amount was paid by the complainant No.1 for treatment of complainant No.2 Minor daughter covered under the policy in question alongwith interest @ 12% per annum from the date of lodgment of claim upto the date of actual payment to the complainant. Further, OPs be directed to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation expenses.

3.                Notice of the complaint was given to the OPs, who filed written reply and contested the complaint by taking preliminary objections that the OPs further seeks the leave of Commission to refer and rely upon the proposal, policy documents with annexure, the correspondence exchanged between the complainant and the OPs alongwith all forms and declarations submitted by the complainant the time of inception of the policy and any other relevant documents. It is further averred that while applying for the aforesaid policy, the insured patient declared in the proposal form that they do not have any medical history. Accordingly, the complainant was insured with the OP Policy Nos:P/211215/01/2016/000157 for the period 03.10.2015 to 02.10.2016, P/211215/01/2017/001035 for the period 03.10.2016 to 02.10.2017, P/211215/01/2018/001274 for the period 03.10.2017 to 02.10.2018 covering Mr.Parvesh Gupta-Self Mrs.Rimpi Gupta-Spouse, Disha Gupta and Avni Gupta-Dependent Children. The insured patient, Disha Gupta was hospitalized in Saket City Hospital on 06.11.2017 and discharged on 10.11.2017. She was diagnosed with Bilateral Genu Valgum-asymmetric deformity severe deformity left side, mild deformity on right side Idiopathic-? Vitamin deficiency. The insured sought for approval of cashless treatment towards the above mentioned treatment. On scrutiny of the medical records by the medical experts of the OPs it was observed that:

b.                As per consultation slip dated 12.06.2017 written by Dr. Arvind Taneja of Max Healthcare Hospital, the insured has complaints of both the legs 2 years ago.

c.                 As per Dr. Nittin Mitta Consultation slip dated 06.06.2017, the insured patient had complaints of deformity since childhood.

d.                From the above findings, it is observed that the insured was symptomatic prior to the inception of the policy and the same was not disclosed in the proposal form. Thus, the pre authorization was denied and the same was informed to the insured vide letter dated 03.11.2017. The non-disclosure of these material facts at the time to taking of insurance policy from the answering OP amounts to misrepresentation by the complainant, therefore the claim of the complainant was rightly repudiated by the answering OP and was communicated to the insured vide repudiation letter dated 22.02.2018. it is further averred that no cause of action has arisen in favour of the complainant to file the present case. It is submitted that the OPs has acted strictly on the basis of the terms and conditions contained in the policy. The present case is premature as the complainant had not submitted the required documents for the purpose of the claim despite of repeated requests by the answering OPs. The complaint has been filed by the complainant with the malafide intention and further to grab the public money. Hence, the present complaint is liable to be dismissed. The present complaint is in violation of the terms and conditions contained in the policy. Therefore, the complaint is liable to be dismissed with exemplary costs. The present complaint is the misuse of the legal process. The complainant has no locus-standi and cause of action to file the present complaint. On merits, the factum with regard to issuance of insurance policy by the OP No.1 to the complainant, is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the complainant very minutely.

7.                The complainant purchased the insurance policy from the OPs since 2005 continuously with the national insurance and the policy was ported into the Start Health Insurance i.e. OP on 29.10.2015 and the policy was valid from 03.10.2017 to 02.10.2018. The complainant No.2 is the co-insured. She is daughter of the complainant No.1. She was diagnosed with the knock knee and this deformity was noticed first time in 2016 as alleged by the complainant. She was admitted in the hospital on 06.11.2017 and discharged on 10.11.2017. The insurance policy has been proved as Ex.C-4, Ex.C-5 & Ex.C-6. The discharge summary has been proved by the complainant as Ex.C-7, wherein she was diagnosed with knock knee deformity of both lower limbs. As per the discharge summary Ex.C-7, the deformity was first noticed around a year ago and has slowly progressed over time. The disease was diagnosed as Bilateral genu valgum-Asymmetric deformity.

8.                The contention of the Ld. Counsel for the OP is that this disease was old one, but the complainant has not disclosed about the deformity, therefore she is not entitled to any claim. He has referred the clause-6 of the conditions of the insurance policy. He has further referred the document Ex.OP-8, in which it has been mentioned that the disease was diagnosed about 2 years ago and this letter is of 12.10.2017, but this contention is not tenable as according to Ex.C-7, the deformity was first noticed around a year ago i.e. in the year 2016 prior to the admission of the complainant no.2 in the hospital on 06.11.2017. Ex.C-8 to Ex.C-11 are the documents attached with the discharge summary. The certificates of doctor regarding the surgery of the knee of complainant no.2 have been proved as Ex.C-12 and Ex.C-13. Ex.C-18 is the prescription of the doctor in which it has specifically been mentioned that the symptoms were first noticed in December 2016 and this prescription was given by the doctor on 20.07.2017. This also shows that the deformity of knock knee was noticed about a year ago and not two years as alleged. The same document has been relied upon by the OPs also and the same has been proved as Ex.OP-5. This clearly shows that at the time of porting of the policy, the deformity was not noticed.

9.                The claim was registered by the complainant with the OP alongwith the documents of the hospital which include receipt of payment, bills, doctor’s prescription and diagnoses and discharge summary as Ex.C-4 to Ex.C-23. After considering the claim, the OPs have repudiated the claim, vide Ex.C-1 and Ex.C-2 on the pretext of exclusion clause condition no.6 of policy document. The only ground for repudiating the claim even after re-examination was that Dr. Arvind Taneja has declared that the insured patient has deformity for the past two years which has the above disease prior to their policy. As per prescription doctor, Arvind Taneja is not an Orthopaedic expert or surgeon dealing with knock knee cases and was only a Paediatrician. He has not advised any X-ray nor any x-ray report has been proved on record by the OPs to show that Dr. Arvind Taneja had given his opinion after going through the X-ray. He has only conducted physical examination of the complainant and as per Ex.OP-8 he had referred for check up by the Dr.Manoj Padman. At the time of repudiating the claim, they have not considered the document relied upon by the OPs Ex.OP-5, vide which Dr. Manoj Padman has specifically mentioned that it was first noticed in December, 2016. Similarly, in the discharge summary, the history has been mentioned by the Doctors of Max Health Care showing that the deformity was first noticed a year ago. These two documents Ex.C-7 and Ex.OP-5 are the prior documents, but the OPs have relied upon only the diagnoses of the Dr. Arvind Taneja, who has not done the surgery nor is Orthopaedic expert, but they have ignored the opinion of other doctors, who had conducted the operation.

10.              Thus, the OPs have completely ignored the opinion and reports of concerned orthopaedic surgeon. The policy was ported in the year 2015 and the complainant was admitted in the hospital on 06.11.2017. This shows that this was not a fresh policy and it was only an extension of already existing policy, having all the benefits which the complainant was having since 2015. The deformity was noticed in the year 2016 i.e. after the policy was taken from the OPs, therefore there is no concealment of any disease nor the disease was pre-existing.

11.              The Ld. Counsel for the OPs has submitted that the complainant has given the exaggerated claim. As per terms and conditions of the policy, some of the expenditure are not admissible as per terms and conditions. The complainant has sought reimbursement of the amount of Rs.2,05,174/- as reimbursement of the expenses spent by the complainant for the treatment of his daughter i.e. complainant no.2. As per Ex.OP-20, the deductions have been shown, which are not covered as per terms and conditions of the policy as the same are re-useable. So, considering the terms and conditions of the policy, the OPs are directed to reimburse the amount of Rs.1,87,000/- and accordingly, the complaint of the complainant is partly allowed. Further, the OPs are directed to pay compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna                Dr.Harveen Bhardwaj     

16.06.2022         Member                          Member           President