Haryana

Karnal

409/12

Ashok Kumar - Complainant(s)

Versus

Star Health And Allied Insurance Company - Opp.Party(s)

Sh. Amit Gupta

09 Feb 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No. 409 of 2012

                                                             Date of instt. 29.08.2012

                                                               Date of decision:9.2.2017

 

Ashok Kumar son of Shri Ram Parshad resident of House no.88-A, Model Town, Karnal.

 

                                                                         ……..Complainant.

                                                Versus

Star Health and Allied Insurance Company Limited KRM Centre, VI Floor no.2, Harrington Road, Chetpet, Chennai 600031 through Branch Manager, Star Health and Allied Insurance Co.Ltd. SCO 104 (1^st floor) Mugal Canal, Karnal.

 

                                                                                 …………Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri Amit Gupta Advocate for complainant.

                    Shri G.P.Singh Advocate for opposite party.

                                     

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he took Star Senior Citizens Carpet Insurance Policy bearing no.P/211114/01/2011/000164 for Rs.2,00,000/- under I.D. Card no.1322748-1, for the period of 12.10.2010 to 11.10.2011, from the opposite party, according to which the opposite party undertook to incur hospitalization expenses for medical/surgical treatment at any Nursing Home/hospital, in India, in case he contacted any disease or suffers from any illness or sustains any bodily injury through accident. On 17.2.2011 he felt chest pain and immediately contacted a local physician at Karnal, who after clinical examination advised him to get an angiography done. Since the procedure of angiography was not available at Karnal, he went to Delhi and got himself admitted in Saroj Hospital and Health Institute Delhi, for angiography. After angiography, the consultant of Saroj Hospital & Health Institute Delhi, advised him to go to a higher institute. Therefore, he was shifted to Medanta Hospital, Gurgaon, which he was advised to undergo bypass surgery. He was operated on 24.2.2011 and after bypass surgery he was discharged on 27.2.2011. On 12.05.2011, the original documents of Medanta Medicity Hospital, Gurgaon were sent to opposite party. Thereafter, on 14.5.2011, the original payment receipts were also sent to opposite party. Claim was lodged in respect of the procedure carried out in Saroj Hospital & Health Institute, but the same was repudiated vide letter dated 17.5.2011 on the ground that the hospitalization was for a period of less than 24 hours. The claim lodged in respect of treatment in Medanta Medicity Hospital was also repudiated, vide letter dated 17.6.2011 with the observation that as per exclusion clause no.1 of the policy, the insurance company is not liable to make any payment in respect of any expenses incurred by an insured under the policy in connection with or in respect of all pre-existing diseases/conditions existing and suffered by the insured person for which the treatment or advice was recommended or received during the immediately preceding 12 months from the date of proposal. Infact, the complainant had absolutely no knowledge of any heart ailment prior to 18.2.2011 i.e. the date on which he received coronary angiography report from Saroj Hospital & Heart Institute. Thus, the repudiation of claim was absolutely unjustified/unwarranted. He served legal notice dated 2.2.2012 upon the opposite party. Reply to the same was given by the opposite party in first week of 2012, wherein it was stated that he was symptomatic prior to the inception of policy and as such his claim was rejected under exclusion no.1 of the policy on the ground of pre-existing disease. In reply, it was also stated that he was also asked to furnish indoor case papers of hospitalization, vide letters dated 11.4.2011 and 18.5.2011, but the same were not furnished by him, therefore, the opposite party was compelled to repudiate the claim vide letter dated 17.6.2011. Infact, original documents relating to the admission, hospitalization and the treatment received by him from two hospitals were sent to the opposite party and the original payment receipts were also sent alongwith letter dated 14.5.2011. In this way, the remarks given by the opposite party in reply to the notice were absolutely wrong. Though, he had spent more than Rs.four lac on his treatment, yet the opposite party is liable to pay an amount of Rs.two lacs alongwith interest thereon. Repudiating his claim by the opposite party, amounted to deficiency in service on its part.

2.                Notice of the complaint was given to the opposite party, who put into appearance and filed written statement disputing the claim of the complainant on various grounds. Objections have been raised that the complainant has suppressed the material facts from this form with malafide intention; that the complainant has no locus standi to file the complaint; that the complainant is estopped from filing the complaint by his own acts and conduct and that the complaint is not maintainable.

                   On merits, it has been submitted that as per the condition of the insurance policy, the insured is entitled to be compensated for any treatment, if he entails an hospitalization of more than 24 hours. Since, the hospitalization of the complainant at Saroj Hospital and Health Institute was for a period of less than 24 hours, therefore, his claim was rightly repudiated. The complainant had concealed the fact of having pre-existing disease within 48 months of the inception of the first policy of insurance. Therefore, his claim regarding treatment allegedly received at Medanta Medicity Hospital, Gurgaon was also repudiated. The complainant was admitted in Saroj Hospital, Delhi on 18.2.2011 and discharged on the same day. Coronory Angiography was done, which shows Left Main Coronary Artery 80% lesion, LAD Ostal 80% lesions, left circumflex-80% ostial lesions and RCA 100% btock in Mid RCA which clearly indicates Severe Triple Vessel Disease. The insured was advised CABG and transferred to Medanta Medicity Hospital, Gurgaon. He was admitted on 19.2.2011 and discharged on 27.2.2011. The diagnosis was CAD, Triple Vessel Disease/Hypertension/Diabetes Mellitus Type-II recently detected. The echo done on 19.2.2011 reveals akinetic mid anterior septum, distal IVS and distal Inferiorvalve. Carotid Doppler and CT Angiography of Brain and Neck done on 21.2.2011 reveals a atherosclerotic disease of arteries of brain and neck and 80% stenosis at origin of left internal carotid artery.  Such findings clearly reflect that the disease must be present for atleast one year for this chronicity and severity of illness to develop, well before inception of policy. Moreover, indoor case papers of Medanta Hospital were required to reconsider the claim, which were not furnished by the insured, therefore, the claim was rightly rejected under condition no.5 and exclusion no.1 of the policy. The other allegations have not been admitted.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C4 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Rajnish Kohli, Assistant Vice President Ex.O1 has only been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant had obtained Star Senior Citizens Carpet Insurance Policy for Rs.two lacs from opposite party for the period of 12.10.2011 to 11.10.2011. He felt chest pain on 17.2.2011 and as per advice of the local physician at Karnal, he got the angiography done in Saroj Hospital & Health Institute Delhi and after angiography. He was advised to go to Higher Institute, therefore, he was shifted to Medanta Hospital, Gurgaon, where bypass surgery was done and discharged on 27.2.2011. He submitted claims regarding his treatment in Saroj Hospital and Health Institute and Medanta Medicity Hospital, Gurgaon, but his claims were repudiated by the opposite party. Complainant has alleged that repudiation of his claims by the opposite party were unjustified/unwarranted. The opposite party has asserted that the claims were rightly repudiated as per terms and conditions of the insurance policy. Copies of the claim repudiation letters are Ex.C29 and Ex.C30.

7.                As per the case of the complainant, he got angiography done from Saroj Hospital and Health Institute, Delhi. The documents Ex.C5 to Ex.C16 show that he was admitted in the said hospital on 18.2.2011 and was discharged on the same day. The copy of the repudiation letter Ex.C29 shows that the claim of the complainant regarding the treatment in Saroj Hospital was repudiated on the ground that he was hospitalized in the said hospital for less than 24 hours and the policy does not cover hospitalization for less than 24 hours. Learned counsel for the complainant could not point out any condition of the insurance policy according to which claim regarding treatment as indoor patient in a hospital for less than 24 hours is admissible. Therefore, repudiation of the claim of the complainant regarding his treatment in Saroj Hospital & Health Institute cannot be termed as illegal or unjustified.

8.                Learned counsel for the opposite party put a great thrust upon the contention that the investigation and treatment record of the complainant show that the complainant must be suffering from cardiac problem well before the inception of the policy. The complainant must be having symptoms of heart problem even at the time of obtaining the policy, because the problem could not aggravate to such an alarming condition within a short period after obtaining the policy. The complainant obtained the policy on 12.10.2010 and he suffered from such serious heart problem within four months of the policy i.e. on 17.2.2011. Thus, the complainant had knowingly concealed the material facts from the opposite party by not disclosing in the proposal form that he was having symptoms of cardiac problem at that time. The contract of insurance is based on principle of uberrima fide i.e. utmost good faith and concealment of any material fact renders the policy void. As the insured concealed the material facts in the proposal form for obtaining the policy, his claim was rightly repudiated by the opposite parties.

9.                To wriggle out the aforesaid contention, learned counsel for the complainant vehemently argued that the complainant was not having any symptom of cardiac problem before the inception of the policy and he had not obtained treatment for any such problem from any hospital prior to obtaining the policy. The burden was upon opposite party to prove that the complainant was having the pre-existing disease and he had knowingly concealed such disease in the proposal form, but no evidence worth the name has been produced by the opposite party. It has further been argued that as the complainant was not having any symptom of cardiac problem prior to inception of the policy, he had no knowledge about any such disease, if he was suffering, therefore, there was no concealment on his part in the proposal form submitted by him for obtaining the policy and as such he has entitled to get the claim and the order of repudiation of the claim is illegal and unjustified.

                   In support of his contention, he placed reliance upon  National Insurance Company Ltd. Versus Bipul Kundu 2005(2) CPJ 12 wherein the claim was repudiated on the ground of suppression of material facts alleging that the insured was suffering from rheumatic  heart disease prior to taking of policy. However, the insurance company failed to prove that the insured had made statement fraudulently with the knowledge of falsity. Under those circumstances, it was held by Hon’ble National Commission that the burden to prove suppression of material facts lies on the insurer, but the insured failed to prove the same, therefore, repudiation of the claim was neither justified nor legal. He also referred to Praveen Damani Versus Oriental Insurance Co. Ltd. 2006(4) CPJ 189 wherein the petitioner had undergone Angiography and by-pass surgery. His claim was repudiated on the ground that he had pre-existing disease. It was held by Hon’ble National Commission that before policy was issued, the petitioner was medically examined by the doctor nominated by insurance company. There was no proof that he had pre-existing disease. Most of people do not know about his disease before medically tested. Therefore, the claim was wrongly repudiated and petitioner was entitled to reimbursement of money claimed under Mediclaim Policy. He also relied upon Satinder Singh Vs. National Insurance Co. Ltd. 2011(1) CPJ 126 wherein the claim of the complainant was repudiated on the ground of pre-existing disease. Symptoms became known to the petitioner after he had taken the medical insurance policy. The insurance company was not able to show that the complainant had taken medical treatment for his heart condition prior to his admission in hospital in Amritsar and subsequently, in the two hospitals in Delhi. Under those circumstances, it was held by Hon’ble National Commission that the conclusion of the State Commission that the complainant must be having pre-existing disease was based on guesswork. The repudiation of the claim of the complainant was held to be unjustified.

10.              The material fact has not been defined in the Insurance Act, therefore, it has been understood and explained  by the court in general terms to mean as any fact which  would influence the judgment of a prudent insurer in fixing  the premium  or determining whether he would like to accept the risk. Any fact which goes to the root of the contract of Insurance and has a bearing on the  risk involved would be material.   In this context reference may be made to the judgment of Hon’ble Supreme Court in case Satwant Kaur Sandhu Versus New India Insurance Co.Ltd. 2009(10) SCR 560.   

11.              It is worth pointing out at the very outset that the opposite party has not produced any evidence worth the name, from which even an inference may be drawn that the complainant ever got any treatment regarding heart problem as diagnosed in Saroj Hospital on 18.2.2011, prior to inception of the policy. Even no evidence has been produced, which may tend to show that the prior to inception of the policy, the complainant had taken treatment for any other disease. The burden was upon the opposite party to prove that the complainant was having cardiac problem prior to inception of the policy and he knowingly did not disclose about the same, but nothing on record has been produced by the opposite party to substantiate the said plea. Mere fact that Saroj Hospital after angiography on 18.2.2011 referred the complainant to Higher Angiography Institute for further treatment and thereafter by-pass surgery was performed in Medanta Medicity Hospital Gurgaon, does not lead to the conclusion that the complainant was having cardiac problem or symptoms and knowledge about such problem even before submission of proposal form. The complainant suffered chest pain and thereafter, he got angiography done from Saroj Hospital and Heart Institute and thereafter he was admitted in Medanta Medicity Hospital, Gurgaon, where bypass surgery was performed. The facts and circumstances do not indicate that the complainant had knowledge prior to submission of the proposal form that he was suffering from cardiac problem and would be required to undergo by-pass surgery. As the complainant had no knowledge about the cardiac problem prior to submission of the proposal form, it cannot be said any stretch of imagination that he had concealed the material facts from the opposite party regarding his health in the proposal form submitted by him. Thus, the opposite party has altogether failed to prove that there was any concealment of material facts on the part of the complainant for obtaining the insurance policy.

12.              The next contention raised by the learned counsel for the opposite party is that the complainant had not submitted the original documents despite letters dated 11.4.2011 and 18.5.2011 sent to him, therefore, his claim was rightly repudiated on this ground also, as per condition no.5 of the policy.

13.              The argument advanced by learned counsel for the opposite party cannot be accepted being devoid of force. A perusal of the copy of the repudiation letter Ex.C30 shows that the medical certificate issued by the treating doctor and treatment records were sent to the opposite party and the same were perused for deciding the claim of the complainant. Learned counsel for the opposite party submitted that only Photostat copy of the treatment record was given. However, the complainant had sent letter dated 14.5.2011, the copy of which is Ex.C27 which shows that the original documents of Medanta Hospital were already sent to Chennai Head Office. The original payment receipts and the other documents were sent to opposite party in original. When the original document already sent to the Head Office of the opposite party, the same could not be in possession of the complainant. If, the opposite party was not satisfied with the Photostat copy of the treatment record, the same could be got verified from the Medanta Medicity Hospital. Mere fact that the original treatment record was not produced, could not be a ground for repudiation of the claim. Under such circumstances, the letter of repudiation of the claim of the complainant regarding his treatment in Medanta Medicity Hospital was not justified at all and the same amounted to deficiency in service on the part of the opposite party.

14.              The complainant has claimed that he has spent more than amount of Rs.four lacs. He produced the bills of Medanta Medicity Hospital Ex.C27 for Rs.3,37,970/-. Learned counsel for the opposite party has drawn attention of this forum towards policy documents Ex.C2 and Ex.C3, according to which in case of Cardiac Vascular diseases/Cerebro-Vasculr/Cancer and breakage of bones and amount of Rs.1,50,000/- was payable, when the sum insured was Rs.2,00,000/-. Therefore, complainant is entitled to the claim of Rs.1,50,000/- only.

15.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party to pay Rs.1,50,000/- to the complainant  alongwith interest thereon @ 9% per annum from the date of filing of complaint till its realization. We further direct the opposite party to pay Rs.25000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 9.2.2017

                                                                                      (K.C.Sharma)

                                                                                          President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member