Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the husband of the complainant namely Vijay Kumar Arora (now deceased) had availed the joint Health Insurance policy from the Opposite party for himself and complainant since 30.08.2019, which was duly renewed from time to time. On 30.08.2021 the said policy again renewed and a policy bearing no.P/211222/01/2022/004030 with sum insured of Rs.5 lakh alongwith bonus and recharge benefit which was valid from 30.08.2021 to 29.08.2022 was issued. Unfortunately, husband of the complainant suffered Liver Disfunctioning (Nasopharyngeal Carcinoma) on 30.06.2022 and he got admitted in DMCH Ludhiana for the period 30.06.2022 to 04.07.2022 where an amount of Rs.58,547/- was spent on the treatment of husband of complainant. Thereafter complainant and her husband submitted their claim for medical reimbursement alongwith original medical record and bills to Opposite party and thereafter on 09.07.2022 an email was received from the Opposite party, vide which they approved the claim of Rs.25,308/- out of Rs.58,547/-. On 26.09.2022 complainant received a letter from the Opposite party vide which Opposite party have informed that due to non submission of required documents of referral consultation papers prior to 04.09.2019, claim of husband of the complainant has been declined/repudiated by the Opposite party, which is unjustified. Thereafter complainant and her husband served a legal notice dated 04.10.2022 upon the Opposite party, but to no effect. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite party may be directed to pay an amount of Rs.58,547/- spent on the treatment of husband of the complainant alongwith interest @ 12% p.a. from the date of filing of present complaint till its realization.
b) To pay an amount of R.50,000/- as compensation on account of damages for physical as well as mental pain and agony suffered by the complainants.
c) To pay an amount of Rs.5500/- as cost of the complaint.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint pertains to insurance claim under Family Health Insurance Policy No. optima bearing P/211222/01/2022/004030 valid from 30.08.2021 to 29.08.20222 covering the Vijay Kumar Arora and his spouse Rita Rani i.e. complainant for a sum of Rs 5,00,000/-. However the aforesaid insurance policy was issued to the insured by the answering Opposite Party subject to the terms and conditions of the insurance policy. The said terms and conditions were handed over and supplied to the insured at the time of the contract. Moreover the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with policy schedule. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Therefore it is submitted that in case if any liability would arise against the answering Opposite Party, then it would be subject to the terms and conditions of the insurance policy. Further alleged that the insured requested for a cashless authorization for the treatment of Nasopharyngeal Carcinoma on 30.06.2022 and he got admitted in Dayanand Medical College and Hospital, Ludhiana. On scrutiny of the cashless claim documents as provided by the insured, it was found and observed by the answering insurance company that the insurance company was not able to ascertain the duration of the disease based on the documents/details received by it and it requires further evaluation and thus the Opposite party requested the insured to submit certain documents and information for the processing of the claim further. Hence cashless claim was rejected vide letter dated 02.07.2022. Subsequently, insured has submitted documents in reimbursement, on scrutiny of documents, it is observed that the insured had undergone the testing of (128 Slice Cect Thorax) suggested by Dr.Saurav Goyal on 04.09.2019 and has not submitted the referral consultation papers prior to 04.09.2019 which amount to non submission of required documents. In the absence of the above documents/details, the company is not able to further process the claim. As per Condition no.2 of the above policy, the insured person has to submit all the required documents and details called for by the insurer. Hence, the claim was repudiated vide letter dated 26.09.2022. Further the insured availed the policy on 30.08.2019 and as per the referral consultation papers stated above has undergone the testing on 04.09.2021, which states that insured has undergone the treatment of illness within 30 days from the first policy commencement date. Therefore, as per the Exclusions no.3 (30 days waiting period Code Excl 03) of the above policy the insured shall be excluded for the expenses related to the above treatment. Claimed that the instant complaint is neither maintainable in law nor on facts; no deficient services have been rendered by the answering Opposite party as alleged by the complainant; the complaint being pre-mature and false is not maintainable; the complainant has not come with clean hands. Averred that the complainant has also suppressed the material facts from this Commission as well as from answering Opposite party. On merits, all other allegation made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove her case, complainant tendered in evidence her affidavit Ex.C1 alongwith copies of documents Ex.C1 to Ex.C31.
4. To rebut the evidence of the complainant, Opposite party tendered in evidence affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1, 2/A alongwith copies of documents Ex.OP1, 2/1 to Ex.OP1, 2/15.
5. We have heard the counsel for the parties and also gone through the documents placed on record.
6. The purchase of the policy by the complainant for the period 30.08.2021 to 29.08.2022 and during the policy coverage husband of the complainant suffered from Nasopharyngeal Carcinoma is not disputed. The main dispute arises between the parties, when the claim lodged by the complainant for the treatment taken by her husband has been repudiated by the Opposite Parties vide letter dated 26.09.2022. The plea taken by the Opposite Party in its defence and in particular in their repudiation letter is that since the complainant failed to submit all the required documents called for by the Opposite Parties so, they failed to settle the claim of the complainant. Also they claimed that the cashless request of the complainant was also rejected. The document Ex.C27 placed on record by the complainant belies the stand so taken by the Opposite Parties. From the perusal of the same, it is quite evident that the cashless request made for the treatment to be undergone by the insured was thoroughly been processed and thereafter the Opposite Party approved and sanctioned the amount of Rs.25,308/-. In our opinion once cashless claim request was approved for the treatment after thorough processing then no necessity is left with Opposite Party to ask for submission of further documents. In this way, the only formality is left lodging of the claim by the complainant for the expenses paid for the treatment at the time of getting discharge from the hospital. We are of the concerted view that the complainant rightly claimed the expenses incurred for the treatment of her husband and Opposite Party is liable to make the payment thereon.
7. Furthermore, in the policy document Ex.C4 the age of husband of the complainant/insured is mentioned as 61 years and date of inception of first policy was mentioned 30th August, 2019, meaning thereby that at the time of purchase of the first policy, the age of the husband of the complainant was more than 45 years, so it was the bounden duty of the Opposite Parties-Insurance Company to get the life assured medically examined before issuing the policy in his name who was above 45 years of age. For the observation above, we place reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-
“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”
In reference to the above, the Opposite Party has not placed on record any evidence revealing that before issuing the policy in question they ever got medically examined the insured. So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined the proposer/insured while issuing the policy and once the policy got issued the insurer cannot take the plea of pre-existing disease of the insured. It has also been held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta & Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that
“where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease which was not disclosed- apparently, burden to prove lies upon the insurer- If assured was suffering from pre-existing disease why insurer had not checked it at the time when proposal form was accepted by its staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled to claim alongwith interest”.
8. Under given circumstances, the deficiency in service as well as unfair trade practice on the part of the Opposite Party is proved and thus, the complainant is entitled for right full claim under the policy. Moreover, Opposite Party-Insurance company by not paying the genuine claim of the complainant not only added more sufferance to the complainant, but also forced her to indulge into this avoidable litigation who already suffered the immense pain due to death of her husband. In this way, deficiency in service of the part of the Opposite Party is writ large.
9. Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.58,547/- and this amount is fully proved on record by complainant by placing on record Ex.C5 to Ex.C25. Hence, we allow the same.
10. In view of the discussion above, we party allow the complaint of the complainant and direct the Opposite Parties to pay an amount of Rs.58,547/-(Rupees Fifty Eight Thousand Five Hundred Forty Seven only) to complainant. Opposite Party is further burdened with compensation of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant, not only for rendering deficient services but also for unfair trade practice resorted to by them and for thrusting the avoidable litigation, they are further burdened with costs of Rs.5000/-(Rupees Five Thousand only) as litigation expenses. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is burdened with additional amount of Rs.15,000/- (Rupees Fifteen Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
