Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant has availed the health policy from the Opposite Parties in the year, 2019, which is continued till 29.11.2024. On 31.10.2023, the complainant went to Fortis Hospital, Ludhiana for check up of both knees as there was pain in both knees from the last two months and on the same day doctor conducted x-ray of both knees of complainant and advised the complainant to replace the both knees and on the same day Fortis Hospital, Ludhiana received Rs.1540/- from the complainant. On 01.11.2023 on the request of the complainant, the said hospital applied for cashless authorization to the Opposite Parties and on the same day the Opposite Parties approved Rs.1,00,000/- to Fortis Hospital, Ludhiana for the operation of both knees of complainant. Thereafter on 06.11.2023, the complainant got admitted in Fortis Hospital, Ludhiana for the operation of both knees and thereafter the said hospital obtained various laboratory reports, x-ray of chest and both knees of complainant on 11.11.2023, the complainant was discharged from the Fortis Hospital and on the same day Fortis Hospital, Ludhiana received Rs.2,63,540/- from the complainant because on 11.11.2023 Opposite Parties withdrawal the said cashless amount given to Fortis Hospital, Ludhiana. The complainant somehow arranged the amount of Rs.2,63,540/- and deposited the same with the said hospital. After discharge from the hospital, the complainant handed over the entire documents to the Opposite Parties, but despite that the Opposite Parties repudiated the claim of the complainant vide letter dated 30.11.2023. Alleged that the complainant never received any pain in both knees from the last five years, however she suffering from pain from the last two months only. Dr.Sanjeev Mahajan (Orthopaedics) of Fortis Hospital, Ludhiana also gave writing on the letter-head that the complainant is suffering from Knees problem from the last sixty days. Alleged that the complainant. Due to such act and conduct of the Opposite Parties, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay a sum of Rs.2,63,540/-.
b) To pay an amount of Rs.1,00,000/- as compensation on account of mental tension and harassment and for deficiency in service.
c) To pay an amount of Rs.50,000/- as litigation expenses.
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 Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is filed without any cause of action, as the claim of the complainant was denied by the answering Opposite Parties on the ground of pre-existing disease & Non-Disclosure of material facts. Averred that the present complaint pertains to insurance claim under “Star Health Gain Insurance Policy (Individual), bearing no.P/211222/01/2023/008756 valid from 30.11.2022 to 29.11.2023 covering the complainant self for a sum of Rs.5,00,000/-. The policy is in continuation since 29.11.2019. However it is submitted that the aforesaid insurance policy was issued to the insured by the answering Opposite Parties subject to the terms and conditions of the insurance policy. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Averred further that the insured had requested for cashless and had submitted the documents for hospitalization on 06.11.2023 to 11.11.2023 in Fortis Hospital, Mohali towards the treatment of OA Knee, but cashless request of the complainant was rejected as the patient has been suffering from the disease/condition for the past 5 years which is prior to inception of the first policy. Hence, it was a pre existing disease/condition. Thereafter, the insured has submitted the claim for reimbursement and it was observed from the documents and details available with Opposite Parties that the insured patient was symptomatic of the above disease for the past 5 years and has the above disease prior to inception of insurance policy. The present admission and treatment of the insured patient is for the pre existing disease. Hence, the claim was rejected and the same was informed to the insured vide letter dated 30.11.2023. Alleged that the proposer, in the proposal form has affirmed that the insured person was in Good Health and that he has not consulted or taken treatment which could be gathered from the following
1. Are you in good health and free from physical and mental disease or infirmity. If not give details - Yes.
2. Have you consulted/taken treatment/been admitted for any illness/disease/injury/Surgery- if yes, details - No.
4. Have you ever suffered or suffering from any of the following
j) Disease of Stomach, Intestine, Liver, Gall Bladder, Pancreas, Kidney, Urinary Bladder, Urinary Tract Disease – If Yes, since when - No.
From the above findings, it is clearly evident that the insured is well aware of the past medical history of the insured person and failed to disclose the same in the proposal form during the porting of policy, amounting to non disclosure of material facts thus violating the Cardinal Principle of the insurance, making the Contract of Insurance voidable and unenforceable. Averred further that the complainant has got no cause of action and locus-standi to file the present complaint; the instant complaint is false, malicious, incorrect and with malafide intent and is nothing but an abuse of the process of law; the instant complaint is neither maintainable in law nor on facts; no deficient service has been rendered by the answering Opposite Parties as alleged by the complainant. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove the case, the complainant has placed on record her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C16.
4. On the other hand, Opposite Parties have placed on record affidavit of Sh.Sumit Kumar, Senior Manager, Star Health & Allied Insurance Co. Ltd. as Ex.OP1,2/A alongwith copies of documents Ex.OP1,2/1 to Ex.OP1,2/14.
5. We have heard the ld. counsel for both the parties and also gone through the record.
6. The complainant availed the policy bearing no.P/211222/01/2023/008756 for the period 30.11.2022 to 29.11.2023 from the Opposite Parties covering self for a sum of Rs.5,00,000/- is not disputed. It is also not disputed that during the policy coverage the complainant suffered ‘pain in left knee and difficulty in walking’ and got admitted in Fortis Hospital, Ludhiana on 06.11.2023, where he was diagnosed with ‘Osteoarthritis with varus and flexion deformity left knee’ and operated for the same and got discharged on 11.11.2023. It is proved on record that during the first hospitalization, the complainant requested the Opposite Parties for cashless treatment, then Opposite Parties issued cashless authorization letter dated 01.11.2023, vide which they approved the amount of Rs.1,00,000/-, but thereafter vide letter dated 11.11.2023, they rejected the claim and withdrew the approval already given for cashless treatment and when the complainant lodged the claim with the Opposite Parties for reimbursement of the medical expenses, the Opposite Parties repudiated the claim of the complainant on ground of pre-existing disease vide letter dated 30.11.2023 (Ex.OP1,2/12).
7. The Opposite Parties repudiated the claim of the complainant, vide letter dated 30.11.2023. The contents of which are reproduced as under:-
“We have processed the claim records relating to the above insured-patient seeking reimbursement of hospitalization expenses for treatment of OA Knee.
It is observed from the documents and details available with us that the insured patient is symptomatic of the above disease for the past 5 years which confirms that the insured patient has above disease prior to inception of medical insurance policy. Hence it is a pre-existing disease. The present admission and treatment of the insured patient is for the pre existing disease.
As per Exclusion-Pre-existing disease- Code Excl-01 of the policy issued to you, the company is liable to make payment for any pre-existing disease only after expiry of 48 months from 25.11.2023.
We wish to bring your kind attention that the above Pre-Existing Disease/s is/are found while processing the claim of the above insured patient.
As per new IRDA guidelines, if the non-disclosed disease is other than the disease from the list of permanent exclusions, then the insurer can incorporate additional waiting period of not exceeding 4 years for the said undisclosed disease or condition from the date the disease was found out (i.e. 25.11.2023) and it is now incorporated in your policy as per existing disease/condition by passing endorsement.
We therefore regret to inform you that for the reasons stated above we are unable to settle your claim under the above policy and we hereby repudiate your claim.”
8. After due consideration of the admitted and proved facts on record, we have also considered the rival contentions of ld. Counsels for both the parties and have gone through the record. We have also perused the discharge summary of Fortis Hospital, Ludhiana. In the said discharge summary nowhere it is mentioned that the complainant has any history of ‘Osteoarthritis Knee’ prior to admission in the hospital and in the said discharge summary it is mentioned that the complainant was diagnosed as Osteoarthritis with varus and flexion deformity left knee, the contents of discharge summary are reproduced as under:-
Diagnosis
Osteoarthiritis with varus and flexion deformity left knee
Operative Procedure
Unilateral Total Knee Replacement left knee under CSEA on 07.11.2023, smith & Nephew
Femoral- size 4 (Oxinium), Tibia base plate- size 3, Insert- size 11mm
Chief Complaints
Pain in left knee
Difficulty in walking
9. Observing the above discharge summary, we are of the concerted view that the said discharge summary of the treating hospital is sufficient enough to prove that complainant has no prior history of ‘Osteoarthritis Knee’ as there is nothing mentioned that complainant has prior history of OA Knee. Further in this regard Dr.Sanjeev Mahajan, of Fortis Hospital, Ludhiana has also issued certificate (Ex.C13) stating that complainant is suffering pain since 60 days. The contents of said certificate is reproduced as under:-
“This is regarding patient Gurmeet Kaur aged 63 years, female UHID-12795990 is suffering from pain left knee since 60 days. On clinical examination, Varus ………… examination she has been diagnosed as Osteoarthiritis left knee and needs left total knee replacement.”
10. Moreover perusal of form i.e. Request for Cashless Hospitalization for the Health Insurance filled by the hospital concerned reveals that in the said form against the column ‘Duration of the present ailment’ it is mentioned as ‘60 days’. Further perusal of the record reveals that the complainant has been obtaining the policy from the Opposite Parties since the year, 2019 without any break, meaning thereby that the policy in question is in its 4th year of continuation, so it cannot be said that complainant is suffering from pre-existing disease. Further the onus to prove that the complainant was suffering from a pre-existing disease as per settled law is on the Opposite Parties, but the Opposite Parties have not produced any documentary evidence/expert medical opinion in support of its case. For this observations we are well guided by judgments of Hon’ble National Consumer Disputes Redressal Commission in case titled Reliance Life Insurance Co. Ltd & Anr. v. Tarun Kumar Sudhir Halder in Revision Petition No. 2097 of 2019 has also held so:-
"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 (FA-383/2016) PAGE 8 OF 10 basis of the entries in the Medical Attendant Certificate that the disease was complained for the first time by the DLA on 22.06.2011, 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. Moreover, in case of diabetes of late, this Commission has been taking a view that diabetes is a life style disease and is so common in India that the whole insurance claim cannot be rejected on this ground."
11. Further perusal of the policy document (Ex.C3) placed on record by the complainant reveals that in the said document, the complainant has mentioned his date of birth as 01.01.1959 and in the said document date of inception of first policy is mentioned as 29.11.2019, meaning thereby that at the time availing the first policy, the age 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/her name who was above the 45 years of age. As per the 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.”
However, the Opposite Parties-Insurance Company has not placed on record any evidence that before issuing the policy they ever got medically examined the insured. From the discussion above, we are of the concerted view that Opposite Parties illegally and wrongly repudiated the genuine claim of the complainant.
12. Vide instant complaint, the complainant claimed the amount of Rs.2,63,540/-, which is duly proved on record vide Ex.C4, Ex.C5 and Ex.10. Hence we allow the said amount.
13. From the above discussion, we allow the instant complaint in part and direct the Opposite Parties to pay an amount of Rs.2,63,540/- (Rupees Two Lakh Sixty Three Thousand Five Hundred Forty only) to the complainant. Opposite Parties are also directed to pay compository costs of Rs.15,000/-(Rupees Fifteen Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten 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
