It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before this District Commission. Briefly, the facts of the case as made out in the complaint and averred by the complainant u/s 35, 38(2) and 39(1) of the Consumer Protection Act, 2019 is that the Complainant Mr. Sudip Pal, Classic Cooperative Housing Society, DB-5, Flat no-3B, Street No.-286, New Town, Kolkata-700156 purchased a health insurance policy from M/s Star Health & Allied Insurance Co. Ltd. with registered office at 1 no. New Tank Street, Nugambakkam, Chennai-600034 (OP 1) and local office at 75C, Park Street, Kolkata-700016 (OP 2). The complainant has been a customer of the health insurance company since 2016 which was renewed from time to time vide insurance policy no. P/700002/01/2017/0006548 for a Sum Assured cover of Rs. 5 lac renewed annually from time to time with annual premium of Rs. 27,777 /- latest valid till 02.05.2022. The complainant became sick from Acute Respiratory Distress and consulted local doctor who diagnosed the patient as suffering from mild symptoms of Covid-19 and Pneumonia and got admitted to College of Medicine & Sagar Dutta Hospital with a stay from 01.05.2021 to 04.05.2021. As the O2 level of the complainant dropped, he was shifted at Apex Clinic Pvt. Ltd. of 844 (A & B), Raja Rammohan Roy Road, Haridevpur, Kolkata-700008 (OP 3) on 05.05.2021 for better treatment having ICU facility and for administration of high flow oxygen where the treatment continued till 11.05.2021. Discharge summary dated 11.05.2021 and hospital medical bill of Rs. 3,53465/- were raised by hospital of OP3 and paid upfront by the Complainant. Consequent upon discharge, insurance claim as per claim ID no.- CIR/2022/700001/2697713 was  submitted along with requisite documents by the Complainant with the insurance company. Some further documents were asked for by the Insurance company that was supplied by the complainant.

Thereafter the Insurance company repudiated the claim of the complainant for alleged discrepancies in the medical records as per their letter dated 22.09.2021 with following remarks : -

"It is observed from the claim records that the SpO2 recordings vary in the discharge summary, indoor case records and SpO2 chart. Moreover , the clinical picture and the pathological reports do not match. Thus there is a discrepancy in the records which amount to misrepresentation of fact

As per terms and conditions of the policy issued to you, if there is any misrepresentation 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."

On the basis of such repudiation the insurance company refused to entertain the insurance claim. The insurance company without any medical opinion from any medical expert or any doctor of the treating hospital, repudiated the claim arbitrarily. The complainant forwarded and submitted the case record of the OPs and denied the allegation of committing any suppression of material fact as alleged in the repudiation letter since the treatment was received by the patient from the competent doctors of the hospital as per medical guidelines and nowhere in the prescriptions or records of the treating doctors it was mentioned that the complainants have ever received any medication or treatment which were non-essential. It was contested by the complainant that the question of alleged misrepresentation of facts does not arise at all. The complainant incurred the hospital bill expenses for the treatment received from the hospital of the OP 3 on account of pathological tests, medicines, clinical tests and hospitalization charges. The complainant filed the complaint before this Ld. Commission with a prayer for a direction on the OPs to allow the insurance claim of Rs. 3.5 lac along with compensation of Rs. 5 lac for deficiency in services and unfair trade practices adopted by the OP 1 and 2 alongwith Rs. 1 lac as litigation cost.

The Complainant filed copies of following documents as exhibits in support of his complaint petition  :-

1. P1- Comprehensive insurance policy (running page no. 10 to 89)
2. P2- Discharge summary from hospital dated 11.05.2021(running page 120)
3. P3- Repudiation letter dated 22.09.2021(running page 121)

After admission of the case, notices were served upon the OPs. From the records it appears that the service returns could be completed by 30.03.2022. The OP1 and 2 appeared but preferred not to file W/V and accordingly the case has been running ex-parte against all OPs. Evidence was filed by the complainant on affidavit and the argument was heard when also the OPs refrained from making appearance. During the argument, the Ld. Advocate of the complainant filed a statement which is an excerpt of the HDFC bank accounts statement of the complainant (a/c no.xxxx xxxxx 0618) for the period 01.01.2022 to 07.01.2022 and drawn notice of the Ld. Commission about crediting the account of the complainant by a single remittance from the Insurance company on 01.01.2022 for Rs. 2,60,360/-

Heard arguments of Ld. counsel of complainant and the contents thereof and perused the records and documents. The case is running on ex parte basis and decided on merit. The OP 1 & 2 appeared but preferred to file W/V or participate during final argument. So the question of disputing the material facts of the case, including the Insurance policy and it’s terms and conditions, does not arise.

It is observed that the complainant remained admitted in the Hospital of OP3, preceded by treatment at Sagar Dutta Medical College & Hospital. The medical claim of the complainant was repudiated by the OP1 as per the terms and conditions of the insurance policy. The said rejection was challenged by the complainant in the complaint filed by him. As far as the claim of reimbursement of insurance claim on  medical expenses incurred for the treatment of the complainant at hospital of OP3 is concerned, it is to be seen as to whether the rejection thereof is legally valid or not ?

From the sequel of documents it is apparent that the complainant is an existing health insurance policy holder of the insurance company (exhibit-P1; page 56-90) uninterruptedly for last 6 years from 02.05.2016 till 02.05.2022 with the latest policy bearing no. P/7000012022/005918. The exhibits as per page 10-15 depicts the items of Insurance coverage, special conditions and exclusion items (page 16-18) for such coverages. As per discharge summary dated 11.05.2021 (page 120) there was a history of Covid19 from 23.04.2021 when patient was released from Sagar Dutta Medical College (a. Govt. hospital). The patient was admitted at OP3 hospital with SpO2 as 88% (R/A) with a diagnosis of Covid19 (page 90-91), followed by SpO2 87% (R/A) on same day at 7 pm when the patient was put to NRBM (high flow O2) and SpO2 became 96%. On 06.05.2021 at 7 am the SpO2 was 98% on NRBM (page 92,93,95). On 07.05.2021 at 8 am, SpO2 was 99% on NRBM,(page 95),  On 07.05.2021 at 9 pm SpO2 was 88% (R/A) (page 96). On 08.05.2021 at 12.30 pm again Spo2 was 99% after putting patient on NRBM (Page 97). On 09.05.2021 at 9am, the Spo2 was 96% on NRBM (page 98), on 10.05.2021 at 4 pm 96% on NRBM (page 100) and on 11.05.2021 at 7 am was 96% (NRBM) (page 101). Hence from the daily trail of SpO2 at ‘hospital bed ticket’ (BHT) it is evident that :-

• The variation in SpO2 on R/A (room air) as well as after putting the patient on NRBM, the Spo2 of the insured was quite consistent.
• There is no mention of SpO2 in the discharge summary.
• There was no adverse note of any doctor in all such medical records about the pathological test reports versus the clinical co-relation of the indoor patient.

The opposite parties repudiated the insurance claims by letter dated 22.09.2021 stating that the complainant is guilty of misrepresentation of material fact. In the insurance claim submitted by the complainant during treatment of Covid 19 that the variations in SpO2 level as recorded in the (a) Discharge Summary, (b) Indoor case records and (c ) SpO2 chart cannot be viewed as anomalous with conclusion as ‘suppression of material fact’ on following grounds : -

1. Patient has neither any decision making role nor scope to traverse on his treatment regime or to choose the plan or the dosage or schedule the duration of treatment, once he is admitted in the hospital till discharge
2. During indoor treatment, patient has no access to the BHT (bed head ticket) which is an essential element of the alleged Indoor case records, as mentioned in repudiation letter
3. There is no correlation between the ground of discrepancy, as alleged vis a vis suppression of material fact

There is no merit in those contentions of the Insurance company. A Covid 19 patient has no role in the treatment plan and it can not be controlled by himself and it is not necessary that a person suffering from Covid 19 would require to suppress SpO2 level, which might be varying frequently on medical ground. In this case in hand also, such symptom during the Covid 19 had become quite common in the relevant period.

Therefore it is crystal clear that the allegation of ‘variation in SpO2’ % in discharge summery Vs indoor case records Vs SpO2 chart’ is not substantiated at all.

Further, considering the other aspects of the case in hand, it can be seen that the in the repudiation letter of OP1 vide reference no. nil dated (exhibit-P3) 22.09.2021 and email dated 23.09.2021 (page 130), objection was raised that the patient adopted the process of ‘misrepresentation of facts’. Now the question for consideration is that the patient was suffering from the date of admission 05.05.2021 at OP3 hospital. Once admitted, the complainant being an indoor and ICU patient was neither in a position to control being remained admitted and being under treatment of the hospital of OP3. Then how it could have been the said allegation of misrepresentation about the treatment ? It is not also the case of the complainant, being an indoor patient that he was in a position for taking any step in any direction. Meaning thereby, it can be said that neither the complainant nor his party was aware about the said process of indoor medical treatment and hence question of misrepresentation does not arise at all .Not it can be said to be a case of misrepresentation by the complainant. It was for the OP1 and OP2 to prove that the complainant violated any insurance condition or concealed or misrepresented anything intentionally No any other restrictive condition was also put to the insured at the time of issuance of the policy or at any other point of time, as listed in the policy terms and conditions, which can debar the insured to prefer claim as per the Terms 7 conditions of the Insurance policy vide Sec (3) on ‘exclusions’ (running page 16-18) read with Cl (1) to (37) and vide Sec (4) on ‘conditions’. Even an iota of doubt was not there in the mind of the OP1 and 2 at the time of issuing the policy or during hospitalisation of complainant. Only on the basis of a wild presumption, the claim of the complainant has been rejected on a filmsy ground.

In the present case, the opposite parties have repudiated the genuine claim of the complainant on the basis of unfounded assumption. Following are the references of the Apex Courts in similar set of circumstances :-

(A)Hon'ble Supreme Court in case P. Vankat Naidu Vs. Life Insurance Corporation of India & Anr. IV (2011) CPJ 6 (SC) 6 held in Paras No.6 & 7 as follows:

"6. We have heard learned counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.

7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness."

(B) Further, in the case of "New India Assurance Company Limited Vs Smt. Usha Yadav & Ors.", 2008(3)RCR(Civil)-111(P&H), Hon'ble Punjab & Haryana High Court held as under:-

"6....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."

[C] In similar set of circumstances, the Hon'ble National Commission in First Appeal No.477 of 2020 (Bajaj Allianz General Insurance Co. Ltd. v. Avtar Singh Mann), decided vide order dated 17.08.2020, has upheld the decision of this Commission by dismissing the appeal filed by the Insurance Company in limine. In that case, the complainant had taken an Insurance Policy from the Insurance Company. During the validity period of that policy, the complainant suffered ailments and was hospitalized. The repudiation of the claim on the grounds of suppression of facts held by this Commission, to be wrong and illegal. The view taken by this Commission has been affirmed by the Hon'ble National Commission.

(D) In case New India Assurance Company Limited Versus Smt. Usha Yadav & others 2008(3) R.C.R. (Civil) 111, the Hon'ble Punjab & Haryana High Court expressed its anguish and observed as follows:-

"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."

It is also relevant to mention here that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that diseases, in question, were pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behaviour.

In view of the facts as mentioned above and on perusal of findings recorded, we are convinced with the arguments raised by learned counsel for the complainant that those findings are well reasoned and are based on proper appreciation of evidence available on record. The case of opposite party failed to bring it on record that the insured was instrumental in misrepresenting material fact about his hospitalisation treatment. The claim of the complainants was wrongly and illegally repudiated. Ground of Repudiation of insurance claim by the Insurance provider / opposite party is not justified. The stand taken by the Insurance company is far fetched and is therefore, liable to be rejected.  So the OP 1 and OP 2 have failed in providing proper services and mitigate the financial burden of the complainant who paid the treatment cost to the hospital upfront.

Let a free copy be given both sides as per CPR.

Dictated and corrected by

 [HON'BLE MR. Partha Kumar Basu]
MEMBER