Haryana

Karnal

CC/656/2019

Vinod Kumar - Complainant(s)

Versus

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

Davinder Singh Choudhary

01 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 656 of 2019

                                                        Date of instt.25.09.2019

                                                        Date of Decision:01.06.2022

 

Vinod Kumar son of Shri Jai Narain, resident of shop no.23, old Anaj Mandi, Nissing, village Nissing, Sub Tehsil Nissing, District Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Star Health and Allied Insurance Company Ltd. SCO no.101, 102, & 103, 2^nd floor, Batra Building Sector 17-D, Chandigarh-160017 through its Managing Director.

2.     Star Health and Allied Insurance Company Ltd. IRDA registration no.129, 2^nd floor, SCF, Sector-13, Urban Estate, near ICICI Bank, Karnal through its Branch Manager.

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Davinder Singh, counsel for the complainant.

                    Shri Gaurav Gupta, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                 The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased a medi-claim policy namely “Family Health Optima Insurance” from the OP in the year 2015 w.e.f.30.09.2015 to 29.09.2016 by paying a premium of Rs.8778/- and the said policy was lateron renewed every year, vide different policy numbers, details of which are as under:-

Policy Number                           Validity                             Premium

P/211114/01/2016/002166        03.09.2015 to                 Rs.8778/-

                                                Midnight

                                                29.09.2016

 

P/211114/01/2017/003150        30.09.2016 to                  Rs.8855/-

                                                Midnight

                                                29.09.2017

 

P/211114/01/2018/004237        30.09.2017 to                  Rs.11889/-

                                                Midnight

                                                29.09.2018

 

P/211114/01/2019/005408        30.09.2018 to                  Rs.11889/-

                                                Midnight

                                                29.09.2019

 

It is further averred that an abscess developed in the perianal region of the complainant about 2 years back, however, the complainant came to know about the same when it started increasing and when the said abscess grown up largely having pus therein, the complainant approached AMCARE Hospital, VIP Road, Zirakpur, Mohali (Punjab) for the treatment of the same and he was admitted in the said hospital on 03.08.2018 and his disease was diagnosed as “Complex Anal Abscess with Fistula-Posterior & Horseshoe” and the complainant was operated by Dr. Pankaj Garg for the said disease on 03.08.2018 and was discharged from the hospital on 04.08.2018. At the time of admission, the complainant informed the OPs about the same so that the expenses of his treatment etc. could be paid by the OPs to the said hospital, however, OPs asked the complainant to get the treatment of the said disease and to pay the expenses of the hospital and they assured the complainant that lateron, OPs would pay the expenses for the treatment to the complainant. On the assurance of the OPs, the complainant got himself treated from the abovesaid hospital and paid the amount of Rs.2,05,833/-. Thereafter, complainant lodged his claim with the OPs to reimburse the abovesaid amount, but OPs did not pay the claim and repudiated the same, vide letter dated 16.04.2019 on the ground of pre-existing disease. The repudiation of the claim of the complainant is illegal as the complainant started suffering from the abovesaid disease about 2 years ago during the subsistence of the insurance policy, complainant never suffered from the abovesaid disease prior to the inception of the first medical insurance policy. The complainant submitted all the requisite documents with the OPs as per their demand including a certificate issued by Dr. Pankaj Garg to the effect that the patient developed complaint of pus discharge 2 years back which was perhaps due to anal fistula. However, inspite of submitting all the documents, the OPs repudiated the claim of the complainant on the false and frivolous ground. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the insured availed family Health Optima Insurance Plan covering Mr. Vinod Kumar (Diabetes Mellitus and its complications)-spouse Ms. Anjali, Master Pratham son for a floater sum insured Rs.3,00,000/-. It is further pleaded that 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 policy schedule. It is further pleaded that the insured patient Mr. Vinod Kumar in the 3^rd year of the policy was hospitalized in Sir Amcare Medical & Research Pvt. Ltd. Zirakpur on 03.08.2018 for the treatment of complex Anal Abscess with Fistula-posterior & horseshoe and discharge on 04.08.2018. The insured submitted the claim documents for reimbursement of the medical expenses of Rs.1,57,313/-. On scrutiny of the documents, it is observed that as per initial assessment and plan of care sheet of in Sir Amcare Medical and Research Pvt. Ltd.

dated 03.08.2018, the insured has complaint of pain in anal region with pus discharge since 5 years. From the above findings, it is confirmed that the insured patient has already treated for the abovesaid disease which is prior to the commencement of the policy. Hence, it is a pre-existing disease. As per waiting period clause no.3(iii) of the policy, “Pre existing disease as defined in the policy until 48 consecutive months of continuous coverage have elapsed, since inception of the first policy with any Indian General/Health insurer. Therefore, the claim is not liable under waiting period clause no.3(iii) of the policy. Hence the claim was repudiated and the same was communicated to the insured vide letter dated 16.04.2019. 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.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of repudiation letter Ex.C1, copy of discharge summary Ex.C2, copy of email by OP to complainant Ex.C3, copies of insurance policies for the year 2015-2016, 2016-2017, 2017-2018, 2018-2019 Ex.C4 to Ex.C7, copy of Amcare Hospital receipt Ex.C8, copy of certificate of Dr. Pankaj Garg Ex.C9, copy of OPD slip of Dr. Pankaj Garg Ex.C10, copy of receipt of Garg Fistula Research Institute Ex.C11, copy of Pratham Clinical Laboratory receipt Ex.C12, copy of receipt of Dr. Shjamsher Singh Memorial Radio Diagnostic Centre Ex.C13, copies of IPD slips and bill of Amcare Hospital Ex.C14 to Ex.C16, copies of SRL diagnostic slips Ex.C17 to Ex.C19, copy of Garg Fistula Institute receipt Ex.C20, copy of medicines bills of Ess Pee Medicare Ex.C21 to Ex.C27 and closed the evidence on 17.02.2021 by suffering separate statement.

5.             On the other hand, learned counsel for OPs has tendered into evidence affidavit of Rajiv Jain Chief Manager Ex.RW1/A, copies of insurance policies Ex.R1 to Ex.R3, terms and conditions of the insurance policy Ex.R4, copy of proposal form Ex.R5, copy of claim form part ‘A and B’ Ex.R6 and Ex.R7, copy of surgery/anesthesia record of Amcare Hospital Ex.R8, copy of discharge summary Ex.R9, copy of medical bill detail Ex.R10, copy of bill assessment sheet Ex.R11, copy of repudiation letters dated 08.01.2019 and 16.04.2019 Ex.R12 to Ex.R13 and closed the evidence on 04.04.2022 by suffering separate statement.

6.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 03.09.2015 complainant purchased a “Family Health Optima Insurance Policy”, from OPs, which continued year by year upto four years. He further argued that an abscess developed in the perianal region of the complainant. Complainant approached Amcare Hospital, Zirakpur, Mohali for treatment and was operated for the said disease and discharged on 03.08.2018. The complainant spent Rs.2,05,833/- on his treatment. Thereafter, complainant lodged his claim with the OPs for reimbursement of the abovesaid amount but OPs did not pay the claim and repudiated the same on the false and frivolous ground. Hence, prayed for allowing the complaint.

9.             Per contra, learned counsel for OPs, while reiterating the contents of the written version, has vehemently argued that insured in the 3^rd year of the policy was hospitalized in Sir Amcare Medical & Research Pvt. Ltd. Zirakpur on 03.08.2018 for the treatment of complex Anal Abscess with Fistula-posterior & horseshoe. The insured submitted the claim documents for reimbursement of the medical expenses of Rs.1,57,313/-. As per initial assessment and plan of care sheet of Sir Amcare Medical and Research Pvt. Ltd., the insured has complaint of pain in anal region with pus discharge since 5 years. The insured has already treated for the abovesaid disease, which is prior to the commencement of the policy. Hence, it is a pre-existing disease.  The claim is not liable under waiting period clause no.3(iii) of the policy. Thus, the claim was rightly repudiated vide letter dated 16.04.2019. Hence, prayed for dismissal of the complaint. Learned counsel for the OP has relied upon the judgments of Hon’ble Supreme Court titled as Aman Kapoor Vs. National Insurance Co. Ltd. and another  and Suraj Mal Ram Niwal Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. (2010) 10 SCC 567.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, insured has availed policy in question in the year 2016 from the OPs, which was in continuing form upto four years 2019. It is admitted that on 03.08.2018, complainant was admitted in Amcare Hospital, Zirakpur, Mohali during the subsistence of the insurance policy for his treatment.

12.           The claim of the complainant has been repudiated by the OPs, vide letter Ex.R13/C1 dated 16.04.2019 on the ground reproduced as under:-

“Our medical team has perused your representation and the medical certificate from the doctor and has noted the contents. The team which re-examined the claim records ha observed from the indoor case records of the aforesaid treatment that the insured patient has a history of similar complaints of the above disease 5 years back which confirms the patient has the above disease prior to inception of the first medical insurance policy. The present admission and treatment of the insured patient is for the pre-existing disease. The claim is not payable as per waiting period 3(iii) of the policy issued to you. The clarification now given by the hospital is not acceptable.

We are, therefore, unable to consider your representation favorably and we inform you that repudiation of your claim is in order.

13.           The claim of the complainant repudiated by the OPs on the ground of pre-existing disease. The onus to prove its version was lied upon the OPs, but OPs have miserably failed to prove its version by leading any cogent and convincing evidence. The case of the OPs is based upon the surgery/anesthesia record Ex.R8. The OPs have failed to examine the Doctor or any other person from the said hospital to prove its version. Thus, without examining the concerned witness the plea taken by the OPs goes unproved. Hence, the plea taken by the OPs is having no force.

14.           Rather complainant relied upon the certificate issued by Dr. Pankaj Garg Ex.C9 dated 27.02.2019 to the effect that the patient developed complaint of pus discharge 2 years back which was perhaps due to anal fistula. Hence, it is proved on record that complainant has not suffered from any disease, at the time of inception of the insurance policy.

15.           Furthermore, the case of the OPs is also based upon the presumption and assumption. However, it is settled proposition of law that merely on the basis of presumption without any cogent and convincing evidence, it cannot be hold that complainant was suffering from any disease prior to taking the insurance policy. In this regard, we are also fortified from the observations of the Hon’ble National Commission made in judgment dated 31.05.2019 rendered in Rivision Petition No.2097 of 2017 case titled as Reliance Life Insurance Company Ltd. & Anr. Vs. Tarun Kumar Sudhir Halder in which it is observed as under:-

“12. From the above entry, it seems that either the doctor filling up this form has not clearly given the date or somebody has made cutting after the word ‘since’. Thus, no conclusion can be drawn in respect of the period since when the DLA was suffering from diabetes. From the entries in the Medical Attendant Certificate it is clear that the DLA first complained about illness only on 22.06.2021. This entry clearly denies pre existing disease of Diabetic Ketoacidosis. The insurance company has not filed any evidence to show that the DLA was taking treatment for the disease prior to filling up of the proposal form. Even if there was disease inside the body, but the life insured did not know about the disease and was not taking any treatment for the same, the insurance claim cannot be denied on mere presumption that the life assured might be suffering from pre-existing disease. Thus, on merits, I am convinced on the basis of the entries in the Medical Attendant Certificate that the disease was complained for the first time by the DLA on 22.06.2021, which is much after the date of the proposal form. The onus to prove the pre-existing disease lies on the Insurance Company and no supporting documents have been filed by the Insurance Company in support of their assertion.”

•  

                “It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

16.           Keeping in view that the ratio of the law laid down in the aforesaid judgments, facts and circumstance of the case, the act of the OPs amounts to deficiency in service and unfair trade practice, while repudiating the claim of complainant, which is otherwise proved genuine one.

17.           It is evident from the medical bills, complainant has spent Rs.1,63,830/- on his treatment. The said fact has been proved from the details of the medical bills in Ex.11 and Ex.C27. The said bills have not been disputed by the OPs. Hence, the complainant is entitled for the amount of Rs.1,63,468/- alongwith interest, compensation on account of mental agony and harassment, and litigation expenses, etc. 

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.1,63,468/- to the complainant alongwith interest @ 9% from the date of repudiation of claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.55,00/- for the litigation expenses. This order shall be complied within 45 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: 01.06.2022                                                         

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

        (Vineet Kaushik)                (Dr. Rekha Chaudhary)

                  Member                           Member