Order by:
Smt.Priti Malhotra, President.
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that earlier the complainant has been purchasing the mediclaim policy from Apollo Company. Thereafter on the allurement of agent of Opposite Parties, the complainant along with his wife/deceased shifted their policy in to the company of opposite parties No.1 and 2 and a policy bearing no.P/211222/01/2022/012262 for the period from 31.03.2022 to 30.03.2023 was issued. During the policy period, the wife of the complainant no.1 and mother of complainant no.2 and performa respondent no.3 suffered from respiratory problem and complainant no.1 got admitted his wife in DMC Hospital, Ludhiana on 06.11.2022 and remained admitted there till 10.11.2022. The complainant no.1 submitted cashless claim with Opposite Parties. However, the Opposite Parties refused for cashless claim. As the wife of the complainant was in ICU and hospital insisted the complainant to deposit the amount of medical expenses, so under these circumstances, the complainant no.1 has to pay the medical expenses from his own pocket. Unfortunately, wife of complainant no.1 died due to shock and cardiac arrest.
However, the complainant no.1 deposited the amount of Rs.2,33,913 /- with the hospital as expenses incurred for the treatment of his wife. Thereafter, the complainant supplied entire medical reports and bills to Opposite Parties for reconsidering his claim, but to no effect. Hence this complaint. Vide this complaint, the complainant has sought the following reliefs”-
a) Opposite Parties no.1 & 2 may be directed pay a sum of Rs.2,33,913/- i.e. Rs.1,08,913/- as hospital charges and Rs.1,25,000/- as medicines charges to complainants.
b) To pay an amount of R.5,00,000/- as compensation on account of damage and harassment caused to the complainant.
c) To pay an amount of Rs.1,00,000/- 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 no.1 & 2 appeared through counsel and contested the complaint by filing the written version 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 and non disclosure of material facts. Further alleged that the present complaint pertains to insurance claim under Family Health Optima Insurance Policy bearing No.P/211222/01/2022/012262 valid from 31.03.2022 to 30.03.2023 covering the Complainant self and his wife Uma Singla for a sum of Rs.5,00,000/-. However 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 said terms and conditions were handed over and supplied to the insured at the time of the contract. Moreover the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with policy schedule. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Therefore it is submitted that in case if any liability would arise against the answering Opposite parties, then it would be subject to the terms and conditions of the insurance policy. Further alleged that the insured requested for a cashless authorization for the treatment of his wife at Dayanand Medical College and Hospital, Ludhiana for the treatment of Sepsis on dated 06.11.2021. On scrutiny of the cashless claim documents as provided by the insured, it was observed from the admission notes and certificate dated 10.11.2022 issued by treating hospital that the insured patient had been suffering from Hepatitis B since the year, 2016 which was not disclosed at the time of procuring the insurance policy. Thus, it is confirmed that the insured patient has chronic long standing disease existing prior to inception of the insurance policy. Hence, it is a pre existing disease and the insured has not disclosed the medical history in the proposal form, thus the claim was found not payable. Complainant had a duty of disclosure of information related to all kinds of pre-existing diseases i.e. Hepatitis B, which the applicant had prior knowledge before the commencement of the policy. As such, in terms of the said provision of the insurance policy, the insurance company has repudiated the cashless claim of applicant in a proper manner, after due application of mind. The complainant has violated the principle of the insurance, making the contract of insurance voidable and unenforceable. Further alleged that the disclosures made by the proposers facilitate the insurance company to take decision whether to give coverage to the proposer and what the premium would be. In the present case, had the fact of Hepatitis B since 2016 had been disclosed at the time of taking policy, either the coverage would have been denied totally or policy would have been issued with condition of permanent exclusion of ailments relating to the ailment he was suffering from. However, the complainant herein chose not to disclose the ailments and obtain the policy. The proposer, in the proposal form has affirmed that the insured person was in good health and he has not consulted or taken treatment. The Complainant has got no cause of action and locus-standi to file the present complaint. The instant complaint is neither maintainable in law nor on facts. This commission has got no jurisdiction to try and decide the present complaint. No deficient services have 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 their case, complainants tendered in evidence affidavit of complainant no.2 Ex.C1 alongwith copies of documents Ex.C2 to Ex.C96 and affidavit of complainant no.1 Ex.C97 and copies of other documents Ex.C98 to Ex.C104.
4. To rebut the evidence of complainant, Opposite Parties No.1 & 2 tendered in evidence affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1, 2/A alongwith copies of documents Ex.OP1, 2/1 to Ex.OP1, 2/14.
5. We have heard the counsel for the parties and also gone through the documents placed on record.
6. Complainants have filed the present complaint challenging the denial of the cashless authorization and thereafter repudiation of the claim which was raised for the reimbursement of the expenses incurred for the treatment of wife of complainant no.1 who also was duly insured under the policy obtained by complainant no.1 from the Opposite Parties for the period 31.03.2022 to 30.03.2023. Now, it is to be determined that whether the repudiation of the claim of the complainants by the Opposite Parties under the policy in question is genuine or not.
7. It is well proved on record that the complainant no.1 obtained ‘Family Health Optima Insurance Policy’ from the Opposite Parties for the period from 31.03.2022 to 30.03.2023 covering himself and his wife. There is no denial of the fact that the complainant no.1 alongwith his wife for the first time obtained the Mediclaim Policy from Apollo Munich Insurance Company in the year 2016 and thereafter they ported it out from Apollo Munich Company to present Insurance Company i.e. Star Health & Allied Insurance Company and this factum is evident vide Ex.C2 in which inception date of the policy has been mentioned as 31.03.2016. Also Opposite Parties placed on record document Ex.OP1, 2/3 i.e. Portability Form, from which it transpires that earlier the complainant no.1 alongwith his wife had obtained the mediclaim insurance policy from Apollo Munich Insurance Company for the period from 31.03.2016 to 31.03.2018 and then ported it out without any break with present insurance company of the Opposite Parties. Meaning thereby that insured under the policy are entitled for the benefit of continuation of the policy.
8. It is not disputed that the wife of the complainant (duly insured) during the coverage period fell ill and was hospitalized. It is proved on record that request for cashless authorization raised by the complainant for the treatment of his wife was denied vide letter dated 07.11.2022 on the following ground:-
“After perusal of the documents submitted, we are of the view of that the condition of the insure patient does not require hospitalization and he/she could have been treated as an outpatient.”
9. In our considered opinion this plea of the Opposite Parties for denial of cashless authorization is absurd and arbitrary as treating doctor is competent authority to adjudge qua the condition of the patient and for deciding the line of treatment to be administered and without any authentic base the authority of the doctor to judge the same cannot be questioned.
10. Unfortunately, during the course of treatment wife of complainant no.1 suffered heart attack and had her last breath on 10.11.2022. It is further evident on record that the claim lodged for the reimbursement of the expenses incurred on the treatment of the insured (now deceased) was repudiated vide letter dated 10.11.2022 Ex.OP1, 2/11 stating the following reason:-
“As per the documents received by us, it is noticed that the insured patient has been suffering from hepatitis B since 2016 which is prior to inception of the first policy, but the insured has failed to disclose this pre-existing disease in the proposal form at the time of inception of the first policy. This amounts to concealment of material fact and hence the policy issued is void ab initio. Hence, the claim is not admissible due to concealment of material fact.”
11. The complainants vide present complaint have challenged the cashless denial and repudiation of the amount claimed. Complainants further claimed that they are duly entitled for the expenses incurred on the treatment of wife of complainant no.1 being duly covered under the policy coverage i.e. 31.03.2022 to 30.03.2023, since the policy in question is running continuously since the year 2016. We are convinced with the stand taken by the complainants as it has already discussed in the preceding paras that the policy in question is ported out policy which has further regularly been renewed and also it has duly been proved from the policy document Ex.C2 that inception date of the policy is 31.03.2016. The term defining the pre-existing disease under the policy is as under:-
“Pre-Existing Disease: Pre-existing Disease means any condition, ailment, injury or disease:
a) That is/are diagnosed by a physician within 48 months prior to the effective date of the policy issued by the insurer or its reinsatement
or
b) For which medical advice or treatment was recommended by, or received from, a physician within 48 months prior to the effective date of the policy issued by the insurer or its reinstatement.
Since, it has already been proved on record that the present policy is in continuation of the policy which was first obtained in the year, 2016 and the claim has been raised under the present policy which is running in its 6th year. So, the repudiation of the claim on the ground of pre-existing disease/non disclosure of previous ailment is not legal. For the opinion above, we are further guided by the terms and conditions of the policy in question. The relevant term and condition in this regard is reproduced for the sake of convenience as under:-
Pre-Existing Diseases – Code Excl01
a. Expenses related to the treatment of pre-existing Disease (PED) and its direct complications shall be excluded until the expiry of 48 months of continuous coverage after the date of inception of the first policy with insurer.
b. ……
c. If the Insured Person is continuously covered without any break as defined under the portability norms of the extant IRDA (Health Insurance) Regulations, then for the same would be reduced to the extent of prior coverage
d …..
12. Furthermore, as per the policy document, the wife of the complainant no.1 while obtaining the policy was more than 45 years of age, so it was the bounden duty of the Opposite Parties-Insurance Company to get the proposer medically examined before issuing the policy in his/her name who was above the age of 45 years. In support of his contention Ld.counsel for the complainants placed reliance upon 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. So the abovesaid law squarely covers the case of the complainants that it was the duty of the insurer to get insured medically examined while issuing the policy. It has also been held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta & Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that
“where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease which was not disclosed- apparently, burden to prove lies upon the insurer- If assured was suffering from pre-existing disease why insurer had not checked it at the time when proposal form was accepted by its staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled to claim alongwith interest”.
Moreover, it has also held by Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims.
13. In view of the above discussion, the repudiation of the genuine claim of the complainant is bad in law and the Opposite Parties are under bounder duty to pay the genuine claim of the complainants. Also the Opposite Parties are liable to compensate the complainants not only for their deficient services but also to make good the loss which they suffered not only financially but physically and mentally too at the hands of Opposite Parties.
14. Now come to the quantum of amount to be awarded to the complainants. Vide instant complaint, the complainants claimed the amount of Rs.2,33,913/- on account of hospitalization and medicine charges and to prove this amount, complainants have placed on record copy of Final Bill Ex.C6, which duly reveals that during the hospitalization in Dayanand Medical College and Hospital, Ludhiana complainant no.1 spent Rs.1,08,913/- on the treatment of his wife. Complainant no.1 also produced on record copies of medicine bills Ex.C13 to Ex.C96 and Ex.C98 to Ex.C104 (placed on record at the time of arguments as additional evidence) amounting to Rs.1,18,111/-. The amount which is proved on record qua bills raised is Rs.1,08,913- plus Rs.1,18,111/- totaling Rs.2,27,024/-. We allow the same amount with the following directions.
15. In the given scenario, we party allow the complaint of the complainants and direct the Opposite Parties to pay an amount of Rs.2,27,024/-(Rupees Two Lakh Twenty Seven Thousand Twenty Four only) to complainants with interest @ 9% p.a. from the date of filing of present complaint i.e.19.01.2023 till its final realization. Opposite Parties are further burdened with compensation of Rs.20,000/-(Rupees Twenty Thousand only) to be paid to the complainants for rendering deficient services while rejecting the genuine claim. For thrusting the avoidable litigation, they are further burdened with costs of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainants. 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 burdened with additional cost of Rs.15,000/- (Rupees Fifteen Thousand only) to be paid to complainants 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
