Haryana

Karnal

CC/409/2019

Raj Pal Lather - Complainant(s)

Versus

Star Health And Allied Insurance COmpany Limited - Opp.Party(s)

Mohd. Rafiq Chauhan

03 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 409 of 2019

                                                          Date of instt. 15.07.2019

                                                          Date of Decision 03.03.2020

 

Rajpal Lather son fo Shri Bhim Singh Lather, resident of village Manak Majra Gadian, Post Office Butan Kheri, Tehsil Indri District Karnal.

 

                                                                       …….Complainant

                                        Versus

 

1. Star Health and Allied Insurance Company Ltd. Regd. & Corporate office: 1, New Tank Street, Valluvarkottam High Road, Nugambakkam, Chennai 600034.

2. Star Health and Allied Insurance Company Ltd. Sector-13 Market, Urban Estate, Karnal.

                                                                        …..Opposite parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Mohd. Rafiq Chauhan Advocate for complainant.

                   Shri Naveen Khetarpal Advocate for opposite parties.

 

                   (Jaswant Singh President)

ORDER:                    

 

                The facts of the complaint is that present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant has taken a family health policy, vide policy no.P/211114/01/2019/002989, Product type: Family Health Optima Insurance for yearly total premium of Rs.19,417/-, vide receipt no.1237003465 dated 17.07.2018 for limited coverage Rs.5,00,000/- alongwith Recharge benefit of Rs.1,50,000/- valid from 17.07.2018 to Mid Night of 16.07.2019 for the insurance of the complainant Rajpal Lathar and his wife Smt. Chander Lathar. At the time of issuing the said policy, some blood and urine tests and other test of the complainant were conducted by OPs through some specialist/laboratory on the penal of OPs and after finding that the complainant s eligible for granted health policy, the aforesaid policy was issued by OPs.

2.             Unfortunately, the complainant was feeling some physical problem. So, he consulted some doctor and some tests of the complainant were also conducted from Naveen Computerized Laboratory and a Report dated 27.09.2018 was issued wherein by some minor increase of S. Creatinine was found as 1.6 mg/dl whereas the normal reference range is 0.5-1.5 mg/dl and Blood Urea was found 48.5 mg/dl whereas reference Range is 20.0-45 mg/dl. The other test like blood sugar, hemoglobin, total bilirubin were ‘ok’ and in normal reference range. As such the complainant started taking treatment and he got treated himself from Rama Super Specialist and Critical Care Hospital, hospital Chowk, Model Town, Karnal and he obtained treatment from this Hospital uptil 11.03.2019 but the physical condition of the complainant was not recover infact it was becoming lower down day by day as such the complainant was got admitted in Max Healthcare Hospital Delhi where the complainant got admitted from 11.03.2019 to 18.03.2019 and again admitted on 19.03.2019 and discharged in the evening on same day i.e.19.03.2019 and he has spent Rs.2,50,000/- (approximately) on his treatment. The aforesaid policy is a cashless policy.

3.             Complainant filed the claim vide claim no.CLMG/2019/211114/0723731 for the claim of expenses and treatment under the aforesaid policy. Complainant received a letter dated 18.03.2019 from the OPs for rejection of claim on “Non-disclosure of Pre-existing disease” and OPs have cancel the coverage for the complainant with effect from 27.04.2019 by alleging that the complainant has not declared the pre existing disease. The complainant was fit and fine at the time of taking the policy and he has not any pre-existing disease and OPs company who had also taken blood and urine sample for tests and after found that the complainant is eligible for the policy, then said policy was issued to the complainant. Thereafter, complainant sent a legal notice dated 02.05.2019 through his counsel to the OPs vide which he requested the OPs to make the payment of claim amount but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

4.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the insured availed Family Health Optima Insurance Plan, covering Mr. Raj Pal Lathar-self, Mrs. Chander Lather-spouse (PED-Diseases related to Female Genital System and their Complications Diseases of Gastrointestinal System and their Complications), vide policy no.P/211114/01/2019/002989 for the period from 17.07.2018 to 16.07.2019 for sum insured Rs.5,00,000/-. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant alongwith the policy schedule. It is further pleaded that the policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. It is further pleaded that the insured patient was hospitalized in Max Smart Super Specialty Hospital on 21.03.2019 and raised pre authorization request for the treatment of Hemodialysis, Catheter insertion and Dialysis. On scrutiny of the pre authorization documents, it is noted that

a. As per the pre auth form, the insured was provisionally diagnosed with Advance Uremia and Pneumonia was admitted for Hemodialysis and catheter insertion. The insured has a past history DM since 8 years & has Chronic Kidney disease.

b. As per the Progress Note dated 12.03.2019 and consultation slip of Max hospital dated 12.03.2019, the insured was chronic intermittent NSAID (Nonsteriodal anti-inflammatory drugs) use, DM since 8 years was on medication for the same and CKD detected 9 months ago (i.e.5/2018).

c. As per the Initial Assessment sheet dated 12.03.2019, the insured is a known case of CKD since May 2018.

        The above findings confirm that the insured patient has kidney disease since May 2018 i.e. 2 months prior to inception of the policy and the same was not disclosed in the proposal form. At the time of inception of the policy, the abovementioned medical history/heath details of the insured person were not disclosed in the proposal form which amounts to misrepresentation/non-disclosure of material facts, which is not payable as per condition no.6. The condition no.6 reads as under:-

“If there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim.”

As per the condition no.12 of the policy, the policy is liable to be cancelled on non-disclosure of material facts. Thus, the policy was cancelled and the same was informed to the insured with the prior notice dated 18.03.2019. Thus, the pre-authorization was rejected and the same was informed to the insured, vide letter dated 30.03.2019. Subsequently, the insured submitted a representation alongwith the treating doctor justification stating that the legedema of May 2018 was not followed up with immediate lab test and the first detection of an elevation level of creatinine was on October-2018. Whereas, it is observed that the insured was detected with CKD prior to policy, further the insured has DM since 8 years and was on medication for the same. All the material facts were not disclosed at the time of inception of policy. Hence the representation to reconsider the pre auth could not be considered by the OPs and the same was informed to the insured vide letter dated 30.03.2019. The insured has not submitted claim for reimbursement, thus the OPs are not aware of the expenses incurred to the insured. Hence, there is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C91 and closed the evidence on 06.01.2020.

6.             On the other hand, OPs tendered into evidence affidavit of Rajiv Jain Ex.RW1/A and documents Ex.R1 to Ex.R12 and closed the evidence on 12.02.2020.

7.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             The case of the complainant, in brief, is that he purchased a Family Health Optima Insurance Policy from the OPs. At the time of issuing the policy, some blood and urine tests and other test of the complainant were conducted by OPs through some specialist/laboratory on the penal of OPs and after finding that the complainant s eligible for granted health policy, then OPs issued the said policy. The complainant was feeling some physical problem. The complainant got treated himself from Rama Super Specialist and Critical Care Hospital, hospital Chowk, Model Town, Karnal and he obtained treatment from this Hospital uptil 11.03.2019 and thereafter complainant was got admitted in Max Healthcare Hospital Delhi where the complainant got admitted from 11.03.2019 to 19.03.2019 and he has spent Rs.2,50,000/- (approximately) on his treatment. Complainant filed the claim vide claim no.CLMG/2019/211114/0723731 for the claim of expenses and treatment under the aforesaid policy. Complainant received a letter dated 18.03.2019 from the OPs for rejection of claim on “Non-disclosure of Pre-existing disease.”

7.             On the other hand, the case of the OPs, in brief, is that the claim of the complainant has rightly been repudiated on the ground that the insured patient has kidney disease since May 2018 i.e. 2 months prior to inception of the policy and the same was not disclosed in the proposal form. At the time of inception of the policy, the abovementioned medical history/heath details of the insured person were not disclosed in the proposal form which amounts to misrepresentation/non-disclosure of material facts, which is not payable as per condition no.6.

8.             Admittedly, complainant purchased family health policy from the OPs which was valid from 17.07.2018 to 16.07.2019. Due to some health problem, complainant got admitted in Max Healthcare Hospital, Delhi from 11.03.2019 to 19.03.2019 and spent Rs.2,50,000/-approximately on his treatment. The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.R11, on the ground that the complainant was having a pre-existing disease as he was suffering from CKD.

9.             As per the proposal form Ex.R1, date of birth of the complainant is 24.05.1964 and his age was near about 54 years at the time of purchasing of policy. As per IRDAI instructions it is duty of the insurance company, in case of issue of mediclaim policy in the favour of a person more than 45 years of age, to put him thorough medical examination. Similarly, view was taken by Hon’ble State Commission, Punjab in the case of M/s Max Bupa Health Insurance Co. Ltd. Versus Rakesh Walia, appeal no.191 of 2016 decided on 18.08.2016 wherein it was held that if contrary to the instructions issued by IRDAI, an insured above the age of 45 years, was not put to through medical examination, claim raised after issuance of insurance of policy cannot be rejected on account of non-disclosure of the fact of pre-existing disease when the policy was obtained. The case law cited by the complainant is fully applicable to the present case. The claim of the complainant cannot be repudiated on account of non-disclosure of the fact of pre-existing disease when policy was obtained.

10.            Moreover, OPs have failed to prove the document Ex.R5, on the basis of which the claim of the complainant was repudiated by producing cogent evidence nor any witness with regard to the same was examined. On the other hand, as per the certificate Ex.C8, issued by Dr. Alka Bhasin (treated doctor), Mr. Rajpal Lather (complainant) has no creatinine level prior to October, 2018. The same was detected on October, 2018. The insured has taken the treatment after 8 months of purchasing the policy.

11.            In United India Insurance Co. Ltd. & Anr. Versus S.K. Gandhi, 2015 (2) CLT 71 (NC)  the insurance company had not placed on record either the discharge summery of the complainant or any medical document signed by the doctors who treated him in Bhatnagar Eye Centre, Karnal and Arpana Hospital, Madhuban to show that the complainant when he was admitted to the said hospital, had himself stated that he was suffering from hypertension from last 8 years. In that case it was held that it is quite possible that the complainant, despite suffering from diabetes was not actually aware of the same and he cannot be accused of mis-statement or concealment. Onus was upon the insurance company to prove that he had made a mis-representation while obtaining the insurance policy and since the insurance company failed, it was held that it was liable to pay to the complainant to the extent a sum insured by it. In Oriental Insurance Co. Ltd. Vs. Naresh Sharma & Ors 2015 (2) PLR 75 the Hon’ble Punjab and Haryana High Court held that the exclusion clause has to be read to the benefit of patient in genuine circumstances. Where respondent was admitted in hospital suffering from headache, giddiness and hypertension, his claim cannot be rejected on the basis of exclusion clause. In Life Insurance Corporation of India Versus Sudha Jain 2007 (2) CLT 423, has drawn conclusion in para 9 of the order and the relevant clause is 9(iii), which is reproduced as under:-

        “9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.” Taking into consideration the facts of the present case and law laid down by the Hon’ble Superior For a in the above referred cases, we are of the view that OPs were not justified in repudiating the claim of the complainant and are thus liable to pay the amount which the complainant had incurred on his treatment. Form the Tax Invoice dated 23.11.2017 of Jurong Health Services Pvt. LTd. Singapore, it is evident that the complainant had incurred 13720.03 Singapore Dollars on his treatment, therefore, the OPs are liable to pay the medical expenses of 13720.03 Singapore Dollars to the complainant. They are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

12.            Keeping in view the ratio of the judgments, facts and circumstances of the case, OPs have failed to produce cogent evidence to prove that prior to date of taking the policy, the complainant was suffering from an y disease and getting treatment and that fact was in the knowledge of the complainant and he concealed the same.

13.            The complainant placed on record medical bills Ex.C31 to Ex.C91 amounting to Rs.2,50,000/-. Thus, the complainant is entitled for the same alongwith compensation for harassment and litigation expenses.

14.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.2,50,000/- to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- towards the litigation expense. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:03.03.2020

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

               

        (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member                              Member