Order by:

Smt.Aparana Kundi, Member

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant purchased the policy from the Opposite Parties in the year 2021, which is further renewed from time to time. Lastly the complainant purchased the policy for the period 06.03.2023 to 05.03.2024. On 22.08.2023, Surinder Kumar father of the complainant suffered from knee problem and he contacted doctors of Goyal Hospital, Gali Vaid Tirath Raj, Main Bazar, Moga on 22.08.2023 and remained under treatment till 24.08.2023. Thereafter vide letter dated 27.09.2023, the doctors advised father of the complainant for operation. Accordingly, the father of the complainant underwent an operation of knees on 24.08.2023 at Goyal Hospital, Moga. Alleged that the complainant handed over the copy of the policy to the hospital for cashless treatment and the said hospital applied for cashless pre authorization, but the Opposite Parties did not oblige the request of the complainant. Thereafter the complainant paid Rs.2,10,000/- as operation fee and Rs.2,17,197/- on the medicines, x-rays, tests and other misc. expenses on the treatment of his father. Father of the complainant was discharged   from the hospital on 28.08.2023 and at the time of discharge, the said hospital received Rs.2,10,000/- as fee and other medical expenses of Rs.2,17,197/- from the complainant. After discharge from the hospital, the complainant handed over the entire documents alongwith bills of medicines and other documents to Opposite Parties for the reimbursement of the claim, but the Opposite Parties lingered on the matter on one pretext or the other. Thereafter on 22.08.2023, the Goyal Hospital sent a email to the Opposite Parties regarding treatment of Surinder Kumar father of complainant and again on 19.09.2023, but despite that Opposite Parties issued a reply dated 25.09.2023 through email that ‘pre existing disease/s is/are found while processing the claim. 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 an amount of Rs.4,27,197/- .

b)      To pay a sum of Rs.1,00,000/- as compensation on account of mental tension, and harassment.

c)       To pay 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 intricate questions of law and facts are involved in the present complaint which required voluminous documents and evidence for determination, which is not possible in the summary procedure under C.P. Act; the complainant has concealed material facts and documents from this Commission as well as from the Opposite Parties, therefore, the complainant is not entitled to any relief. The complainant has concealed the fact that he has violated the terms and conditions of policy in question and disclosed PED to some extent only but not the present disease to whom complaint has been filed. The real facts are that the complainant availed the ‘Family Health Optima Insurance Plan Policy No.P/211222/01/2023/012869 for the period 06.03.2023 to 05.03.2024 and in this policy his mother and father were insured for an amount of Rs.5 lakh. This policy is in continuation since 06.03.2021 Averred that terms and conditions of the policy were explained to the complainant at the time of proposing the policy and same were served to the complainant alongwith policy schedule. 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 claim in dispute is reported in the third year of the policy. The claim was registered vide claim no.CIR/2024/211222/0693241. The insured has requested for cashless treatment and submitted the documents related to hospitalization for the period 23.08.2023 to 24.08.2023 in Goyal Hospital, Moga towards the treatment of OA Knee and the cashless request was rejected on the ground that Opposite Parties were not able to ascertain the duration of the disease based on the documents/details submitted by the complainant. It required further evaluation. Hence the claim was repudiated on 23.08.2024. Thereafter, the insured has submitted claim for reimbursement alongwith documents and on scrutiny of claim documents, it is observed that the findings of investigation report confirm chronic, longstanding disease. Based on this finding and with the available medical records, the medical team is of the opinion that the insured patient has the above disease prior to inception of the 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- Code Excl-01 of the policy, the company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 20.09.2023. Thereafter an endorsement P/211222/01/2023/12869/1 dated 21.09.2023 was passed, wherein it was 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 Surinder Kumar pre-existing disease: Diseases of the musculoskeletal system and their complications for the above said pre-existing disease/s is subject to a waiting period of 48 months with effect from PED incorporation dated 21-SEP-23”. Hence the claim was repudiated vide repudiation letter dated 25.09.2023 and duly informed to the complainant. Averred further that this is a third-year of policy with date of inception as 06.03.2021. Present admission is from 23.08.2023 to 28.08.2023 with diagnosis: Osteoarthritis B/L Knee with Deformity. Patient has undergone TKR surgery.

i.        Duration of symptoms given as 1 month only.

ii.       There are no previous/OPD treatment/consultation records provided.

iii.      X-ray Knee joint is sign of reduced joint spaces and degenerative changes and there is deformity of joint, which take a number of years to happen and manifest.

          As per the investigation, it is a long-standing disease. Kindly note that we have already endorsed this disease OA as a PED. The insured has a duty to disclose all material facts and not misrepresenting the facts in claim form and as per section 19(2) of protection of policy holders regulation 2017 the requirements of insured the disclosure of material information was required to be mentioned by both the insurer and insured and nothing has to be misrepresented. Averred further that the complainant has no locus standi or cause of action to file the present complaint against the Opposite Parties; the complaint is not maintainable in the present form; the complainant has violated the terms and conditions of the policy. 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, complainant has placed on record his affidavit as Ex.C1 alongwith copies of documents Ex.C2 to Ex.C36.

4.       On the other hand, Opposite Parties have placed on record copies of documents Ex.OP1 to Ex.OP11 and affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP13

5.         We have heard the ld. counsel for both the parties and also gone through the record.

6.       It is admitted and proved on record that the complainant availed health insurance policy namely ‘Family Health Optima Insurance Plan’ bearing no.P/211222/01/2023/012869 from Opposite Parties in the year, 2021 and thereafter continued every year and renewed again for the period 06.03.2023 to 05.03.2024 covering his mother and father for a sum insured of Rs.5,00,000/-. It is also proved on record that during the policy coverage, father of the complainant suffered knee pain and got admitted in Goyal Hospital, where he was diagnosed as Osteoarthiritis Bilateral Knee and after the treatment got discharged from the hospital on 28.08.2023. It  is also proved on record that the complainant applied with Opposite Parties for cashless treatment, but request of the complainant was denied vide letter dated 23.08.2023. Thereafter the claim lodged for the reimbursement of the said hospitalization period was also repudiated by the Opposite Parties, vide letter dated 25.09.2023.

7.       The perusal of the record reveals that the Opposite Parties repudiated the claim of the complainant vide letter dated 25.09.2023. 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 confirm chronic, longstanding disease. Based on this finding and available medical records, our medical team is of the opinion that the insured patient has the above disease prior to  inception of the 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 the expiry of 48 months from 20.09.2023.

8.       We have given the due consideration to the admitted and proved facts on record and also considered the rival contentions of the ld. Counsels for both the parties and have gone through the record meticulously. The main contention raised by ld. counsel for the Opposite Party with regard to repudiation of the claim is that the disease i.e. OA Knee for which the complainant has taken treatment is a pre existing disease, as the patient has the above disease prior to the inception of the policy. We do not agree with the aforesaid contention of the ld. counsel for the Opposite Parties, as first of all, the onus to prove that the complainant/insured was suffering from a pre-existing disease as per settled law is on the Opposite Party. 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.

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.

          However, in the present case, the Opposite Parties have not produced any documentary evidence/expert medical opinion in support of its case. Even they have not produced any document of their own medical team which states that it is a pre-existing disease.

9.       Further we have perused the certificate issued by treating doctor of Goyal Hospital, Moga placed on record by complainant as Ex.C32, in which, it is clearly mentioned that “Patient has Osteoarthritis Bilateral knee and was symptomatic since 6 weeks before surgery (DOS 24.08.2023). So it was not a long standing ailment”. We are of the concerted view that the certificate so issued by the treating doctor is sufficient enough to prove that complainant has no prior history of OA Knee as alleged by the Opposite Parties. Moreover, the Opposite Parties kept mum on the certificate produced by the complainant to prove his version. They have not countered the certificate issued by doctor regarding the treatment of complainant. Mere oral assertion related to pre-existing does not prove that the complainant is suffering from pre-existing disease, rather Opposite Parties have to produce the document to support their version, which they failed to do so.

10.     Further perusal of the policy document (Ex.C36) placed on record by the complainant reveals that in the said document, the father of the complainant has mentioned his date of birth as 19.06.1956 and in the said document date of inception of first policy is mentioned as 06.03.2021, meaning thereby that at the time of availing the first policy, the age of the father of the complainant was more than 45 years, so it was the bounden duty of the Opposite Party-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 Party-Insurance Company has not placed on record any evidence that before issuing the policy they ever got medically examined the insured. In our considered opinion, the repudiation of the genuine claim of the complainant on the ground of pre-existing disease or previous ailment is wrong and not justified.

11.     However, the Opposite Parties have placed on record the claim form (Ex.OP6) which was filled by the complainant. The amount filled in claim form is Rs.2,68,689/- and which are well proved on record and bills related to claimed amount are also placed on record by the complainant. Hence we allow the said amount.

12.     From the above discussion, we allow the instant complaint in part and direct the Opposite Parties to pay an amount of Rs.2,68,689/- (Rupees Two Lakh Sixty Eight Thousand Six Hundred Eighty Nine only) to the complainant alongwith interest @ 6% per annum from the date of filing of this complaint i.e. 24.01.2024 till its actual realization. Opposite Parties are also directed to pay compository costs of Rs.8,000/-(Rupees Eight 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.5,000/-(Rupees Five 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