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 had purchased the insurance policy from the Opposite Parties vide no.P/211222/01/2023/005733 on 07.09.2022, which was renewed vide policy no.P/211222/01/2024/005321 for the period 16.09.2023 to 15.09.2024 for basic floater sum insured of Rs.10 lacs covering herself and her husband namely Rattan Chand. Unfotunately on 07.01.2024, the husband of the complainant suffered with Type-I Respiratory Failure and got admitted in Deep Hospital, Ludhiana where he has been medically treated by Dr.Gautam Rai Aggarwal and got discharged from the hospital on 13.01.2024. Alleged that more than Rs.1,50,000/- was incurred by the complainant for the said treatment. Employee of the Opposite Parties was duly informed and claim was registered vide claim no.CIR/2024/211222/1421675. Alleged further that the complainant was having a cashless policy of Opposite Party, but despite that the Opposite Parties refused to make the payment to Deep Hospital. Thereafter on 15.02.2024, the complainant received a rejection letter from the Opposite Parties, vide which, they refused to pay the claim of the complainant. The complainant visited a number of times to the Opposite Parties and requested to pay his genuine claim, but all in vain. 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.1,13,944/- with regard to the policy in question.
b) To pay a sum of Rs.2,00,000/- as compensation on account of mental tension, harassment and for deficient services.
c) To pay Rs.55,000/- as litigation expenses.
d) To pay interest on the aforesaid amount @ 18% per annum.
e) 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 require voluminous documents and evidence for determination, which is not possible in the summary procedure under C.P. Act; the complainant has concealed the fact and documents from this Commission as well as from the Opposite Parties, therefore, the complainant is not entitled to any relief. Insured has violated the terms and conditions of the policy in question. Averred that the policy inception was 16.09.2022 and the same was ported out from HDFC Ergo Health Insurance Company. Averred further that the complainant namely Shakuntala Garg availed ‘Star Health Assure Insurance Plan’ bearing No.P/211222/01/2024/005321 for the period 16.09.2023 to 15.09.2024 and in this policy complainant, her husband Rattan Chand Garg were insured for an amount of Rs.10 lakh. The 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 second year of the policy with the present insurance company. Averred further that the insured submitted cashless claim on 07.01.2024 and on the basis of the claim documents the cashless was denied with the reason that the follow ups creatinine reports after AKI in 2021 is not submitted with Opposite Parties. First consultation or creatinine reports where CKD was first diagnosed was not submitted to Opposite Parties in spite of requests by Opposite Parties, so cashless was denied.
Subsequently, complainant applied for the medical reimbursement expenses towards the treatment for her spouse taken by him in Deep Nursing Home and Children Hospital, Ludhiana of Type I Respiratory Failure. After seeing the claim documents and discharge summary, medical team of the Opposite Parties observed that insured patient has past history of CAD and has undergone “Percutaneous Transluminial Coronary Angioplasty” to Right coronary artery in the year 2021 and also has chronic kidney disease for the last 2 years, which are prior to the policy of the company and the same was not disclosed at the time of taking policy in the proposal form and other documents submitted in this company which amounts to misrepresentation/no disclosure of facts and as per condition no.1 of the policy issued to the complainant, if there is any misrepresentation/non disclosure of material fact, company is not liable to pay any claim. Hence, the claim was repudiated vide repudiation letter dated 15.02.2024 and duly informed to the complainant.
Averred further that the discharge summary of complainant of Satguru Partap Singh Hospitals, for the hospitalization from 22.01.2021 to 01.02.2021 clearly shows the diagnosis of acute kidney injury. 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/A alongwith copies of documents Ex.C1 to Ex.C6.
4. On the other hand, Opposite Parties have placed on record affidavit of Sh.Sumit Kumar Sharma, Authorized Signatory, Star Health & Allied Insurance Co. Ltd. as Ex.OP1/A7 alongwith copies of documents Ex.OP1 to Ex.OP11.
5. We have heard the ld. counsel for both the parties, gone through the written arguments submitted on behalf of the complainant and also gone through the record.
6. It is admitted and proved on record that the complainant availed health insurance policy namely ‘Star Health Assure Insurance Policy’ bearing no.P/211222/01/2024/005321 for the period 16.09.2023 to 15.09.2024 covering self and her husband for a sum insured of Rs.10,00,000/-. It is also proved on record that during the policy coverage, the husband of the complainant got admitted in Deep Hospital, Ludhiana on 07.01.2024 with chief complaints of cough, fever chills and remained admitted in the hospital till 13.01.2024. It is not disputed that the complainant applied to Opposite Parties for cashless request, but cashless request of the complainant was rejected by Opposite Parties, vide letter dated 11.01.2024 (Ex.OP6). Thereafter the complainant lodged the claim with Opposite Parties for the reimbursement of the expenses incurred on the treatment of her husband, but the claim of the complainant was denied/not admitted by the Opposite Parties, vide letter dated 15.02.2024. The contents of said letter are reproduced as under:-
“It is observed from the discharge summary of the above hospital that the insured patient has past history of coronary artery disease and has undergone percutaneous transluminal coronary angioplasty to right coronary artery in the year 2021 and also has chronic kidney disease for the past 2 years which are prior to our policy.
Your have earlier taken medical insurance policies from M/s HDFC Ergo Health Insurance Company Limited and subsequently taken policy from our company from 16.09.2022 to 15.09.2023 under portability.
At the time of porting the policy, you have not disclosed the above mentioned medical history/health details of the insured-person in the proposal form and other documents submitted to us which amounts to misrepresentation/non-disclosure of material facts.
As per Condition No.1 of the policy issued to you, if there is any misrepresentation/non disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim.
7. 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. Ex.OP4 is evident of the fact that the complainant has been availing the insurance policies from HDFC Ergo General Insurance Company Ltd., since the year 2019 continuously without any break covering self and her husband and thereafter, they ported their policy from HDFC Ergo General Insurance Company to Star Health & Allied Insurance Company i.e. opposite parties in the year, 2022. So, if the complainant ported his insurance policy from the previous insurance company to the present insurance company of the Opposite Party, then it is mandatory for the Opposite Party to get the details with regard to the health status of the insured and treatment taken by him/her during the policy coverage, from the previous insurance company, but the Opposite Party failed to do the same. As it is proved on record that the complainant has been obtaining the policies since the year, 2019 without any break and her policy with the present Opposite Parties is in its second year, 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 Party, but the Opposite Party has not produced any independent documentary evidence in support of its case. For this observations we are well guided by judgment 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. "
8. Further perusal of the policy document (Ex.C2) placed on record by the complainant reveals that in the said document, the husband of the complainant has mentioned his date of birth as 18.04.1953 and in the said document date of inception of first policy is mentioned as 16.09.2019, 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 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 or at the time of porting the policy in question, they ever got medically examined the insured. From the discussion above, we are of the concerted view that Opposite Party illegally and wrongly repudiated the genuine claim of the complainant.
9. Vide instant complaint, the complainant claimed the amount of Rs.1,13,944/-, which is duly proved on record. Hence we allow the said amount.
10. From the above discussion, we allow the instant complaint in part and direct the Opposite Party to pay an amount of Rs.1,13,944/- (Rupees One Lakh Thirteen Thousand Nine Hundred Forty Four only) to the complainant. Opposite Party is also directed to pay compository costs of Rs.10,000/-(Rupees Ten 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 Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is 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
