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 policy from the Opposite Parties in the year, 2021, which is continued till 06.01.2024. Suddenly, the complainant suffered pain in both knees on 03.12.2022, then he went to Goyal Hospital, Moga for routine check up and on that day Dr.Gupreet Goyal conducted the x-ray of both knee of complainant and gave medicine to him for 15 days, but there was no relief. Thereafter on 21.01.2023, the complainant again went to Goyal Hospital and doctor advised the complainant for replacement of both knees and gave medicine to the complainant for month, but again there was no relief to complainant. Thereafter on 21.04.2023 and 24.06.2023 21.04.2023, the complainant again went to Goyal Hospital and doctor again advised the complainant for replacement of both knees. Accordingly, the complainant got admitted at Goyal Hospital on 25.06.2023 and on 26.06.2023 the operation was done by doctor and on 29.06.2023, the complainant got discharged from the hospital. Alleged that on behalf of the complainant, the said hospital applied for cashless treatment, but on 29.06.2023, the Opposite Parties rejected the cashless treatment of complainant. The complainant somehow arranged the amount of Rs.2,31,490/- and got deposited the said amount in the hospital. After discharge from the hospital, the complainant went to the office of Opposite Parties and handed over the entire documents as per their requirement, but on 04.09.2023 the Opposite Parties rejected the claim of 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.2,31,490/-.
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 “Family Health Optima Insurance Policy-2021 no.P/211222/01/2023/010415 valid from 07.01.2023 to 06.01.2024 covering the complainant self and his spouse Parneet Kaur for a sum of Rs.5,00,000/- for the first time. 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 requested for cashless of expenses for treatment of Osteoarthritis Knee for hospitalization on dated 26.06.2023 in Goyal Hospital Moga. It is observed from the hospital records that the insured patient has the above disease which is longstanding ailment. Opposite Parties are not able to ascertain the duration of the disease based on the documents/details submitted by you. It requires further evaluation. Subsequently insured has submitted the same in reimbursement. On scrutiny of claim documents as provided by the insured, it was found and observed from the submitted investigation report shows chronic longstanding disease. Based on the available records medical team of the Opposite Parties was of the opinion that the insured patient had above disease prior to inception of medical insurance policy. Hence it was a pre-existing disease. The admission and treatment of the insured patient was for the above pre existing disease. Averred further that as per Exclusion-Pre-existing disease- Code Excl-01 of the policy issued and supplied, the company is liable to make payment for any pre-existing disease only after expiry of 48 months from 25.08.2023. Further it has been brought to the attention of the insured that the above non disclosed Pre-Existing Disease is found while processing the claim of the above insured patient on 25.08.2023. Hence, the claim was rejected and the same was informed to the insured vide letter dated 04.09.2023. Subsequently, an endorsement P/211222/01/2023/010415/1 was passed on dated 01.09.2023 “It is hereby declared and agreed that the policy is subject to the following Pre-Existing Disease, which has been found only by the claims department when processing the claim in respect of the Insured (Onkar Singh) Pre Existing Disease: Diseases of the musculoskeletal System and their complications for the above said pre-existing disease/s is subject to waiting period of 48 months with effect from PED Incorporation date 01-Sep-23.” As such, in terms of the said provision of the insurance policy, the insurance company has repudiated the claim of applicant in a proper manner, after due application of mind. 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 the policy amounting to non disclosure of material facts thus violating the cardinal principle of insurance making the contract of insurance voidable and unenforceable. Averred further that the insured has a duty to disclose all material facts in proposal while buying an insurance policy. Averred further that the proposal, declaration given by the Proposer (Insured) forms the basis of the contract between the Proposer and the Company. 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:-
Medical Declaration:
1. Are you in good health and free from physical and mental disease of infirmity, if not give details- Answer: Yes
2. Have you consulted/taken treatment/been admitted for any illness/disease/injury/Surgery-If yes Details-No.
3. Have you ever suffered or suffering from any of the following Disease of Stomach, Intestine, Liver, Gall Bladder/Pancreas, 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 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. The Insured has omitted to disclose the material facts at the time of porting of policy, which amount to non disclosure of material facts. As per the contract of Insurance, it is the duty of the proposer to disclose all the material facts to the insurer so that the insurer has the opportunity to evaluate the material facts and to decide whether to accept the proposal or not, as the insurance contract is based on utmost good faith. In case of health insurance contracts, disclosure of health details are the material facts. Insured has to disclose all his past medical history in the proposal form, which is material fact for the assessment of risk and issuing medical insurance policy to the insured.
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 and is an attempt to waste the previous time of this Commission; 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 his case, the complainant has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C18.
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.OP1,2/13.
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/211222/01/2023/010415 for the period 07.01.2023 to 06.01.2024 from the Opposite Parties covering self, his spouse is not disputed. It is also not disputed that during the policy coverage the complainant suffered ‘Knee Pain both side’ and got admitted in Goyal Hospital, Moga on 26.06.2023, where he was diagnosed with ‘Osteoarthritis Bilateral Knee with Deformity’ and operated for the same and got discharged on 29.06.2023. It is proved on record that during the first hospitalization, the complainant requested the Opposite Parties for cashless treatment, but the request of the complainant was denied vide letter dated 29.06.2023 (Ex.OP1,2/7) and when the complainant lodged the claim with the Opposite Parties alongwith all the documents, the Opposite Parties repudiated the claim of the complainant on ground of pre-existing disease vide letter dated 04.09.2023 (Ex.OP1,2/12).
7. The Opposite Parties repudiated the claim of the complainant, vide letter dated 04.09.2023. 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 that the findings of investigation report confirms chronic, longstanding disease. Based on the available records medical team of the Opposite Parties is of the opinion that the insured patient has the above disease prior to inception of medical insurance policy. Hence it is a pre-existing disease. The 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 25.08.2023.
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. 25.08.2023) 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 Goyal Hospital, Moga. 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 reason of admission is mentioned as ‘Knee Pain Both Side’, the contents of discharge summary are reproduced as under:-
Reason for Admission: Knee pain both side
Significant Findings: Abnormal Mobility
Treatment Given and Course of Hospitalization:
Patient present to Goyal Hospital with Knee Pain Both Side X-ray was done and it showed Osteoarthritis Bilateral Knee with Deformity. Patient was counseled about treatment and with consent of patient and attendants patient was admitted and was operated for the same. Now, patient is being discharged with stable vitals and in a satisfactory condition.
9. 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 perusal of the record reveals that the complainant has been obtaining the policy from the Opposite Parties since the year, 2021 without any break, meaning thereby that the policy in question is in its 3rd 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 03.01.1965 and in the said document date of inception of first policy is mentioned as 07.01.2021, 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.2,31,490/-. Perusal of the record reveals that the complainant has placed on record receipt of Goyal Hospital for an amount of Rs.2,30,000/- is dated 04.08.2023, which is paid for B/L TKR however the same is also not objected by the Opposite Parties. 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.2,30,000/- (Rupees Two Lakh Thirty Thousand 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
