Complaint No: 339 of 2019.
Date of Institution: 21.11.2019.
Date of order: 06.12.2023.
Onkar Singh aged 54 years Son of Sh. Mehanga Singh Son of S. Harnam Singh, resident of Village Kotli Shahia Post Office Bhullar, Tehsil Batala and District Gurdaspur.
….........Complainant.
VERSUS
1. Star Health and Allied Insurance Company Ltd., Regd. near Grand Way Hotel Shastri Nagar, opposite LIC office, G.T. Road, Batala, through its Branch Manager.
2. Star Health and Allied Insurance Company Ltd., SCO 25, First Floor, Ranjit Avenue, District Shopping Complex, Amritsar – 143001.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.Pardeep Kumar, Advocate.
For the Opposite Parties: Sh.Sandeep Ohri, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Onkar Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of The Consumer Protection Act (here-in-after referred to as 'Act') against Star Health & Allied Ins. Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant was insured with the opposite parties under Health Insurance Scheme for a valid period from 31.8.2018 to 30.8.2019 as per the amount mentioned in the insurance policy issued to the complainant by the opposite parties. It is pleaded that the complainant suffered pain in his hip on left side and got checked up by medical expert. It is pleaded that the doctor advised him for hip replacement the only solution to his ailment and the complainant immediately informed the opposite parties and went to Amandeep Hospital, Amritsar for admission. It is further pleaded that the hospital authorities told the complainant that total amount of Rs.2,50,000/- shall be charged by them for operation of the complainant. It is pleaded that the complainant informed the opposite parties in this regard and opposite parties did not give approval for this hospital and asked the complainant to get the operation done from other good hospital and opposite parties promised that they shall pay the amount. It is pleaded that the accordingly on the advice of the opposite parties, the complainant got admission at K.J. Hospital, G.T. Road, Dhariwal a Multi Speciality Hospital who will charge Rs.1,50,000/- from the complainant i.e. a package for Rs.1,50,000/-. It is further pleaded that the complainant was operated upon on 19.01.2019 and he immediately informed the opposite parties which asked the complainant to complete certain formalities. It is pleaded that the even K.J. Hospital filled the form as required by the opposite parties for the treatment to the complainant and sent the same to the opposite parties who assured the complainant that they will send the amount in his account very shortly. It is pleaded that thereafter the complainant approached the opposite parties so many times but they remained putting off the matter on pretext or the other and remained making false promises to the complainant and this remains upto 31.07.2019 when they informed the complainant on phone that they are releasing the amount as promised by them to the complainant whereas under the terms and conditions of the policy, they are legally bound to pay the amount to the complainant. It is further pleaded that the complainant remained under grave mental pain and agony and so is his family from 19.01.2019 onwards and still under pain and suffering. It is pleaded that the complainant is having small Atta Chakki business and large family to support and during this period the complainant was unable to do his business properly and suffered much physically, mentally and financially. It is pleaded that the complainant spent amount from his own pocket which was not returned by the opposite parties, resulting loss in his business also. It is pleaded that the complainant on one hand suffered because of operation and on the other hand suffered because of illegal act of the opposite parties. It is pleaded that the act and conduct of the opposite parties is against the principle of natural justice. It is pleaded that the opposite parties received installments from the complainant for insurance policy but failed to perform their part of insurance company just to harass and humiliate the complainant. It is pleaded that the due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is pleaded that the there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the amount to the complainant of Rs.15,000/- borne by the complainant on operation and Rs.1,00,000/- as loss in business and work and Rs.1,50,000/- for harassment, mental pain and agony, humiliation and family repercussion etc. suffered by the complainant and his family and Rs.50,000/- costs and litigation expenses. And any other relief / order which this Hon'ble Commission deems fit may be passed in favour of the complainant, in the interest of justice. Counsel for the complainant placed reliance on judgment of Hon'ble Supreme Court of India reported in 2018(1) Law Herald (SC) 832 wherein it was held by Hon'ble Supreme Court of India as under:-
"Insurance Life Insurance Premium accepted without conducting of medical examination Amounts to waiving off condition precedent in proposal form Insurer held liable to pay".
Further placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
Counsel for the complainant also placed reliance upon judgment of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2014(3) C.P.J. 13 : 2014(87) R.C.R.(Civil) 264 wherein it was held as under:-
"Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy - No affidavit of any doctor or person who recorded history of patient".
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint. It is pleaded that the insurance is a contract between the two parties and both the parties are bound with the terms and condition of the policy. It is pleaded that the claim of the complainant has been repudiated due to breach of the terms and conditions of the policy and there is no deficiency in services on the part of the opposite parties. It is further pleaded that insured availed Family Health Optima insurance policy for a period from 31.08.2018 to 30.08.2019 covering Onkar Singh, Karamjit Kaur for the floater sum insured of Rs.5 Lakh. It is further pleaded that the terms and conditions of the policy were explained to the complainant at the time of proposing policy and same was served to the complainant alongwith the policy schedule “The insurance under this policy is subject to conditions, clauses, warranties, exclusions etc.” It is further pleaded that the complainant has accepted the policy, agreeing and being fully aware of the terms and conditions and executed the proposal form. It is further pleaded that in the presence case the insured Onkar Singh was hospitalized in K.J Hospital, Dhariwal on 19.01.2019 (i.e. in the 5th month) for the treatment of OSTEORTHRITIS HIP JOIN LEFT and has submitted a claim for reimbursement for Rs.1,50,497/-. It is further pleaded that on scrutiny of the documents submitted, it is evident from as per the Discharge summary dated 19.01.2019, the insured was diagnosed with Osteoarthritis Hip Joint Left. It is further pleaded that the Osteoarthritis is а chronic disease that can takes months to years to appear. Hence, in order to verify the duration of the ailment, the claim was entrusted for verification and following were the findings:
- As per the Fortis Escorts Hospital Consultation slip dated 13.06.2017 (Prior to policy), the insured was diagnosed with Erosion Left hip with OA Joint Space and was advised with Left Total Hip replacement.
- As per the OPD receipt dated 13.10.2018 (43rd day), the insured has consulted Orthopaedics Doctor.
- As per the self-declaration letter the insured has complaints of pain in hip joint from the year 2016.
It is further pleaded that from the above findings, it is noted that the insured patient has complaints of pain in hip joint from the year 2016 and was also consulted and advised to undergo THR prior to the inception of the policy. Hence, it is a PED. Pre Existing Disease means, any condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms and / or were diagnosed and / or were received medical advice / treatment within 48 months prior to the policy. It is further pleaded that the insured has pre-existing disease and same is not covered till continuous coverage of 48 months. The waiting period 3 (iii) reads as follows:
"The company is not liable to make any payment in respect of expenses for the treatment of the pre-existing disease/condition until 48 months of continuous coverage has elapsed prior to date of commencement of first year policy. So, there was no disclosure of pre-existing disease and as such the claim has been repudiated vide letter dated 09.07.2019 as per terms and conditions of the policy. It is further pleaded that there is no deficiency in service on the part of the opposite parties and the claim has rightly been repudiated.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Onkar Singh, (Complainant) as Ex.CW-1 alongwith other documents as Ex.C-1 to Ex.C-12.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Rajiv Jain, (Chief Manager, Star Health & Allied Ins. Co. Ltd., New Delhi) as Ex.OP-1,2/A alongwith other documents as Ex.OP-1,2/1 to Ex.OP-1,2/18.
6. Rejoinder filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had purchased health insurance policy from the opposite parties and took treatment i.e. hip replacement from K.J. Hospital, G.T. Road, Dhariwal by making payment of Rs.1,50,000/-. However, on claim having been lodged with the opposite parties the opposite parties repudiated the claim of the complainant on false and flimsy grounds.
9. On the other hand counsel for the opposite parties has argued that policy of insurance is admitted. However, as per discharge summary dated 19.01.2019 the insured was diagnosed with Osteoarthritis Hip Joint Left which is a chronic disease which can take months and years to appear and the claim on verification it was found that Fortis Escort Hospital dated 13.06.2017 the insured was diagnosed with Erosion Left Hip with OA joint and was advised with left total hip replacement. As per OPD receipt dated 13.10.2018 the insured consulted Orthopaedics doctor and complainant was having hip pain in hip joint from the year 2016 and it being a case of pre-existing disease and as per the policy documents pre-existing disease within 48 months prior to the policy is not covered and accordingly the claim repudiated by the opposite parties.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. Perusal of record shows that complainant had purchased health policy from the opposite parties on payment of premium. We are of the view that before issuance of the policy of insurance since the age of the inured was more than 50 years. The opposite parties should have compelled the complainant to undergo medical examination and having failed to compelled the complainant to undergo medical examination. Meaning thereby that opposite parties accepted that the complainant was not suffered from any disease at the time of inspection of the policy. Perusal of statement given by the complainant Ex.OP-1,2 /10 and prescription slip Ex.OP-1,2/11 shows that complainant had undergone medical checkup before the renewal of the policy but perusal of file shows that the proposal form Ex.OP-1,2/12 has been signed by the complainant on 30.08.2016 and thereafter the policy was continuously renewed and since the opposite parties kept on renewing the policy from time to time. Moreover, the failure to make insured undergo medical examination amounts to waiver. We placed reliance on judgment of Hon'ble Supreme Court of India reported in 2018(1) Law Herald (SC) 832 wherein it was held by Hon'ble Supreme Court of India as under:-
"Insurance Life Insurance Premium accepted without conducting of medical examination Amounts to waiving off condition precedent in proposal form Insurer held liable to pay".
More over the opposite parties have not examined any doctor who recorded the medical history as alleged by the opposite parties.
12. We also placed reliance upon judgment of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2014(3) C.P.J. 13 : 2014(87) R.C.R.(Civil) 264 wherein it was held as under:-
"Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy - No affidavit of any doctor or person who recorded history of patient".
Accordingly, repudiation of the claim by the opposite parties on the ground of pre-existing disease after having accepted renewal premium amounts to deficiency in service.
13. Accordingly, present complaint is partly allowed and opposite parties are directed to pay Rs.1,50,000/- to the complainant alongwith interest @ 9% PA. from the date of filing of the complaint till realization within 30 days from the date of receipt of copy of this order.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Dec. 06, 2023 Member
*YP*
