Haryana

Yamunanagar

CC/508/2014

Ravinder Kumar S/o Hari Ram - Complainant(s)

Versus

Star Health And Allied insurance Company Ltd. - Opp.Party(s)

Raj Pal Kait

28 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

 

                                                        Complaint Case No.508 of 2014.

                                                        Date of institution: 08.12.2014.

                                                        Date of decision: 28.11.2017.

Ravinder Kumar, aged 53 years, S/o Sh. Hari Ram R/o House No.95, Gali No.7, Azad Nagar, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                     …Complainant.

                          Versus

1. Star Health & Allied Insurance Company Ltd., Branch Office, Yamuna Nagar, Office No.3, Ganpati Building, Oppt. Madhu Hotel, Yamuna Nagar through its Branch Manager.
2. Star Health & Allied Insurance Company Ltd., Regd. And Corporate Office: 1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai-600034, through its Director.

 

       ….Respondents.

BEFORE  SH. SATPAL, PRESIDENT

                 SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:     Sh. Raj Pal Kait, Advocate, for complainant.   

                 Sh. Pankaj Sharma, Advocate for the OPs.

                

                 ORDER

         

(SATPAL, PRESIDENT)

                 The complainant-Ravinder Kumar has filed this complaint under section 12 of the Consumer Protection Act 1986, as amended up to date (hereinafter respondents will be referred as OPs). 

2.     Brief facts of the complaint, as alleged by the complainant, are that he purchased the health policy bearing No.P/211120/01/2014/000991 dt. 06.12.2013 and paid Rs.10,500/- as premium to the Ops and the said policy was valid upto 10.12.2014.  It is alleged that on 19.03.2014 the complainant met with an accident due to the fact that a stray dog came suddenly in front of the motor-cycle of the complainant and resultantly, the complainant fell down and suffered multiple grievous serious injuries on his left HIP and knee and got scratches on the other parts of body.  It is further alleged that the complainant went to the Goel Hospital (Orthopedic-Surgical Centre), Jagadhri and sought the opinion of Ortho Surgeon and the Ortho surgeon after seeing the X-ray, advised the complainant for operation of THR (Total HIP replacement) due to the damaged left HIP Joint.  It is further alleged that on 18.05.2014, the complainant went to the DMC Ludhiana for taking the advice about the injury and the doctors of DMC Ludhiana checked the complainant and gave the date i.e. 10.06.2014 for operation.  It is further alleged that the complainant remained admitted since 10.06.2014 to 16.06.2014 for 7 days and spent Rs.3,50,000/- as hospital charges and other charges.  It is further alleged that the complainant lodged the claim with the Ops and submitted all the necessary documents but the Ops repudiated the claim of complainant on 15.10.2014 on the false and frivolous ground.  So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint with the direction to Ops to pay a sum of Rs.4,00,000/- on account of hospital charges, harassment, mental agony and cost of proceedings.  Hence, this complaint.

3.            Upon notice, the OPs appeared and filed their written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the claim of the complainant was repudiated on valid grounds as the hospitalization of the complainant in DMC from 10.06.2014 to 16.06.2014 was for the management of an ailment which was related to a pre-existing condition, which is clear from the treating doctor certificate dt. 24.06.2014 wherein it is clearly mentioned that the complainant was diagnosed as a secondary degenerative left hip joint.  Apart from this, X-ray report of the complainant dt. 10.07.2014 indicates that the ailment of complainant was a longstanding and the same could not occur within short period, meaning thereby that the disease was pre-existing.  These facts were suppressed from the answering Ops by the complainant while purchasing the policy.  There is no deficiency in service on the part of Ops.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.           To prove his case, the complainant tendered in evidence affidavit as Annexure CW/A and documents Annexure C-1 to Annexure C-42 and closed the evidence. 

5.              On the other hand, ld. Counsel for the Ops tendered in evidence affidavit as Annexure-RW/A alongwith documents Annexure-R1 to Annexure-R3 and closed the evidence on behalf of Ops.    

6.              We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.                                            

7.         After hearing ld. Counsel for both the parties and on perusal of record, the foremost question which arises before us for consideration is that whether the complainant concealed the true facts regarding his health/pre-existing disease from the Op company at the time of taking the policy and further whether the claim of complainant was repudiated rightly by the Ops  or not?

             The version of the complainant is that he purchased the health policy bearing No.P/211120/01/2014/000991 dt. 06.12.2013 and paid Rs.10,500/- as premium to the Ops and the said policy was valid upto 10.12.2014.  On 19.03.2014 the complainant met with an accident due to the fact that a stray dog came all of a sudden in front of the motor-cycle of the complainant, resultantly, the complainant fell down and suffered multiple grievous serious injuries on his left HIP and knee and got scratches on the other parts of body.  The complainant went to the Goel Hospital (Orthopedic-Surgical Centre), Jagadhri and sought the opinion of Ortho Surgeon, who after seeing the X-ray, advised the complainant for operation THR (Total HIP replacement) due to the damaged left HIP Joint.  The complainant got operation from DMC Ludhiana and remained admitted there w.e.f. 10.06.2014 to 16.06.2014 for 7 days and spent Rs.3,50,000/- as hospital charges and other charges.  Ld. Counsel for the complainant submitted authority cited in 2016(4) CLT page 372 (State Commission, U.T., Chandigarh) titled as SBI General Insurance Company Ltd. Vs. Balwinder Singh Jolly & another, wherein it has been held that “Insurance claim (Medi-claim)-Hypertension-Pre-existing disease-Age of insured when mediclaim insurance policy was issued was more than 45 years-Held-In that event, as per instructions issued by Insurance Regulatory & Development Authority of India (IRDAI), it was duty of the Insurer to put insured to thorough 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 policy was obtained.”  Ld. Counsel for the complainant also submitted authority cited in 2015(1) CLT page 590 (Haryana State Commission) titled as Star Health and Allied Insurance Co. Ltd. Vs. Asha & others, wherein it has been held that “Insurance policy-Terms and conditions-Exclusion clause-Held-It is the duty of the insurance company to prove that these terms and conditions were explained to the insured when cover note was issued-No where mentioned therein that the insured was explained about this exclusion clause-With very small letters clauses, warranties, endorsement, etc. are mentioned-Insurance policy is issued by the company lateron-It is well settled that the company, who is taking specific plea about repudiation of any claim is to prove that the exclusion clause was explained to the consumers-When the Ops have failed to prove this fact they cannot derive any benefit from this exclusion clause.”  Ld. Counsel for the complainant also submitted authorities cited in 2000(1) CPJ page 1 (SC) titled as M/s. Modern Insulators Ltd. Vs. OIC and 2015(2) PLR page 75 (Punjab and Haryana High Court) titled as OIC Vs. Naresh Sharma and others and in the said authorities, the similar question of law have been discussed.        

                 On the other hand, the plea of the Ops is that the ailment of the complainant was a pre-existing disease which he concealed from the Ops at the time of purchasing the policy, which is also clear from the report of treating doctor dt. 24.06.2014, wherein it is clearly mentioned that the complainant was diagnosed as a Secondary degenerative left hip joint.  Apart from this, the report of X-ray dt. 10.07.2014 also indicates that the disease of complainant is a longstanding and the same cannot occur/develop within a short period, meaning thereby, the disease was pre-existing and as such, as per terms and conditions of the policy, the Ops company rightly repudiated the claim of complainant.  Ld. Counsel for the Ops submitted authority cited in 2009(1) CLT page 488 (NC) titled as Angoori Devi Vs. LIC of India & others, wherein it has been held that “Suppression of material fact-The Insurance Company could establish the pre-existing disease by means of cogent hospital record-Order of the District Forum allowing the complaint rightly upset by the State Commission.”.  Similarly, ld. Counsel for the Ops submitted authorities cited in 2009(3) CLT page 221 (Consumer Disputes Redressal Commission, Union Territory, Chandigarh) titled as OIC Vs. Balwanti Devi Dahiya; 2009(4) CPJ page 77 (NC) titled as Best Food International Vs. National Insurance Co. Ltd. & another and in the said authorities, the similar question of law have been discussed.               

8.              It is an admitted fact that the complainant was insured with the Ops insurance company at the time of taking the treatment.  We have perused the DDR report dt. 19.03.2014 (Annexure C-5), which makes it clear that the complainant met with an accident when a dog all of a sudden came in front of the vehicle of the complainant and the complainant sustained injuries.  We have also perused the document Annexure C-4, which is a prescription slip dt. 19.03.2014 issued by the MLGH and Trauma Centre, Yamuna Nagar, which clearly establish the fact that the complainant visited the said hospital and the orthopedic doctor of the hospital advised X-ray of hip and thereafter, referred the patient to P.G.I., Chandigarh for further management.  We have also perused the document Annexure C-6, which is a prescription slip dt. 21.03.2014 issued by the Goel Hospital, Jagadhri, whereby it is clear that the complainant was advised for surgery “THR” (Total Hip Replacement).  In these circumstances, the plea of the Ops insurance company that the complainant was having/suffering from the aforesaid disease before taking the policy is not tenable as the complainant met with an accident and thereafter, he felt pain in hip at the time of walking.  The Ops insurance company relied upon the medical certificate given by the treating doctor, wherein the treating doctor diagnosed the disease of Secondary Degenerative Left Hip Joint and as per opinion of the Ops insurance company, this disease cannot occur within a short period.  We are of the considered view that many times the healthy person are unaware of such silent ailments of diabetes, hyper tension and heart problem or any other ailment/disease, which come to their knowledge first time during health check-up camps or in any emergent situation.  Thus, the Op cannot apply a hard and fast rule to presume that the life assured was suffering from pre-existing disease prior to obtaining the insurance policy.  In the present case, the age of complainant was more than 50 years when medi-claim insurance policy was issued.  In that event, as per instructions issued by Insurance Regulatory and Development Authority of India (IRDA), it was the duty of the insurance company to examine the insured medically when the complainant is more than 50 years old.  The Ops have also failed to produce any cogent evidence to prove that prior to the date of taking the policy, the complainant was suffering from any pre-existing disease and that he was getting any treatment and that fact was in the knowledge of complainant and he intentionally concealed the same.  The Ops have also not placed any opinion of expert doctor which could prove that the disease for which the treatment was taken by the complainant cannot occur within a short period, meaning thereby that the disease was pre-existing.  Apart from this, the Ops insurance company have not filed/or shown any medical literature before this Forum to prove that the disease for which the complainant was treated cannot occur/develop in a short span of time/period.  Besides this, in the instant case, the complainant met with an accident and due to this accident, the complainant sustained injuries on the hip.  There is no dispute with regard to the law laid down in the judgments referred by ld. Counsel for the Ops, but the same are not applicable to the facts of present case because in the present case, the Ops have failed to produce any cogent evidence to the effect that the complainant had knowledge of disease in hip and had intentionally concealed the disease or treatment and thus, the Ops are deficient in providing services to the complainant.

9.              Now the next question which arises before us for consideration is  as to what amount the complainant is entitled to be reimbursed for the treatment taken by him in CMC, Ludhiana.  In the prayer clause, the complainant has demanded Rs.4,00,000/- on account of hospital charges, cost of proceeding, harassment and mental agony, whereas the complainant has placed on file the bills Annexure C-11 and C-23 to C-36 total amounting to Rs.1,36,010/-.  On the other hand, the Ops insurance company have calculated the expenses of treatment taken by the complainant in Annexure R-1 to the tune of Rs.1,36,026/- as per the terms and conditions of the policy.  

10.            Thus, as a sequel of above discussion, we partly allow the complaint of the complainant and direct the Ops insurance company to pay Rs.1,36,026/- to the complainant.  The Ops are also directed to pay Rs.5,000/- as lump sum compensation for harassment, mental agony as-well-as litigation charges.  Let the order be complied with within 45 days from the date of communication of this order, failing which, the complainant shall be entitled interest @ 6% p.a. from the date of this order till its realization.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.     

Announced in open court:

Dated: 28.11.2017.

                                                   (SATPAL)

                                                   PRESIDENT.

 

 

          (VEENA RANI SHEOKAND)        

                                              MEMBER