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 complainant obtained the policy bearing no.P/211222/01/2022/003652 for the period 06.08.2021 to 05.08.2022 under the produce namely ‘Family Health Optima Insurance-2017’. Earlier the complainant obtained the policy from the Opposite Parties for the year 2019-2020, 2020-21 and 2021-22. On 07.04.2022, the complainant went to Sandhu Bone & Joint Hospital, Moga for treatment of both knees, then doctor conducted an x-ray and prescribed the medicine to the complainant, but complainant failed to get any relief. So, the complainant approached Rajeev Hospital on 23.05.2022 and the doctor advised the complainant to get replaced both knees, then on 28.05.2022, the complainant admitted at Rajeev Hospital, Moga on 29.05.2022, which operation of the complainant was conducted and thereafter he was discharged on 03.06.2022. The complainant spent Rs.2,81,553/- on his treatment. Further alleged that before taking the treatment, Opposite Parties were duly informed. After discharge from the hospital complainant lodged the claim with Opposite Parties with all the relevant documents, but the claim of the complainant was repudiated, vide letter dated 24.06.2022 on the ground that “It is observed from the medical records that the insured patient has above disease which is prior to inception of the First Medical Insurance Policy. Hence, it is a pre-existing disease.” Due to the aforesaid 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 party may be directed to pay Rs.2,81,553/- expenses incurred by complainant on his treatment.
b) To pay an amount of Rs.1,00,000/- as compensation on account of damages, mental tension and harassment.
c) To pay an amount of Rs.50,000/- as cost of litigation.
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 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 averred that the present complaint pertains to insurance claim under Family Health Optima Insurance Policy- 2017 bearing no.P/21122/01/2021/003662 valid from 06.08.2021 to 05.08.2022 covering Satnam Singh and complainant self for a sum of Rs.5,00,000/-. However the aforesaid insurance policy was issued to the insured by the answering Opposite Party 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 Party, then it would be subject to the terms and conditions of the insurance policy. Further averred that the insured requested reimbursement of the expenses for treatment of Osteoarthritis for hospitalization on 28.05.2022 in Rajeev Hospital, Moga. On scrutiny of claim documents as provided by the insured, it was observed from discharge summary dated 03.06.2022 and indoor case records, the insured patient has history of bilateral knee joints and difficulty in walking for last 6 to 7 years. The insured patient took multiple medicines for these complaints, but there was no relief. The complainant also did not provide any treatment records. It has been proved on record that the complainant had Osteoarthritis since 6-7 years and this is prior to inception of the first medical insurance policy. Hence, it is a pre-existing disease. The present admission and treatment of the insured patient was for the pre-existing disease. Further averred that as per exclusion clause- Pre Existing Disease – Code Excl-01 of the policy issued to insured, the company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 22.06.2022. Hence, the reimbursement was rejected and the same was informed to the insured vide letter dated 24.06.2022. As such, in terms of the said provision of the insurance policy, the insurance company has repudiated the claim of the complainant in a proper manner, after due application of mind. Further averred that the insured has a duty to disclose all material facts in proposal while buying an insurance policy as per 19 (2) of Protection of Policy Holder Regulations, 2017. Further averred that 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:
Have you or any member of your family proposed to be insured, suffered or are suffering from any disease/ailment/adverse medical condition of any kind especially Heart/Stroke/Cancer/Renal disorder/Alzheimer’s disease/Parkinsons’s disease.
Answer: No
It is averred by the Opposite Parties that 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 the 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 amounts to non disclosure of material facts. The disclosures made by the proposers facilitate the insurance company to taken decision whether to give coverage to the proposer and what the premium would be. In the present case, had the facts of Osteoarthritis 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 applicant herein chooses not to disclose the ailments and obtained the policy. This act of the applicant amounts to fraud under the Indian Contract Act and as such the contracts becomes voidable. Further averred that in order to prove its case, the Opposite Parties will have to lead evidence and examine its witnesses and expert evidences. The Hon’ble Supreme Court of India has stated that the Civil Court is the appropriate Forum to decide cases which are complicated in nature and in which oral and documentary evidences are required to be led. Therefore, in the fact and circumstances of the present case, Civil Court is the appropriate Commission to decide and adjudicate the present case; 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 no jurisdiction to try and decide the present complaint; no deficient services has been rendered by the answering Opposite Parties. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Complainant also filed replication to the written reply of Opposite parties, vide which, all the objections raised by the Opposite parties in the written reply are denied.
4. In order to prove his case, complainant tendered in evidence affidavit of complainant Ex.C1 alongwith copies of documents Ex.C2 to Ex.C17.
5. To rebut the evidence of the complainant, Opposite party tendered in evidence affidavit of Sh.P.C. Tripathy, Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1, 2/A alongwith copies of documents Ex.OP1, 2/1 to Ex.OP1, 2/13.
6. We have heard the counsel for the parties and also gone through the documents placed on record.
7. The case of the complainant is that he is regularly obtaining the Family Health Optima Insurance Policy-2017 from Opposite Parties since the year, 2019. During the policy period i.e. 06.08.2021 to 05.08.2022 complainant suffered knee problem and got his both knees replaced on 29.05.2022 from Rajeev Hospital, Moga, wherein he spent Rs.2,81,553/- on his treatment. However, grievance of the complainant is that claim lodged by him for the reimbursement of expenses incurred by him on his treatment was wrongly and illegally rejected by the Opposite Parties
8. Ld. Counsel for the Opposite Party repelled the aforesaid contention of ld. Counsel for the complainant on the ground that the insured requested reimbursement of the expenses for treatment of Osteoarthritis for hospitalization on 28.05.2022 in Rajeev Hospital, Moga. On scrutiny of claim documents as provided by the insured, it was observed from discharge summary dated 03.06.2022 and indoor case records, the insured patient has history of bilateral knee joints and difficulty in walking for last 6 to 7 years. The insured patient took multiple medicines for these complaints, but there was no relief. The complainant also did not provide any treatment records. It is submitted that it has been proved on record that the complainant had Osteoarthritis since 6-7 years and this is prior to inception of the first medical insurance policy. Hence, it is a pre-existing disease. Further contended that as per exclusion clause the company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 22.06.2022. Hence, the reimbursement was rejected and the same was informed to the insured vide letter dated 24.06.2022.
9. There is no dispute that complainant has purchased the health insurance policy bearing No. P/211222/01/2022/003662 for the period 06.08.2021 to 05.08.2022. Also it is well proved that during the policy period complainant suffered knee problem and got his knees replaced from Rajeev Hospital, Moga and incurred Rs.2,81,553/- for his treatment. In the present complaint the repudiation of the claim raised by the complainant under the above policy is in dispute.
10. After due consideration to the admitted and proved facts on record, we have also considered the rival contentions of ld. Counsel for both the parties and have gone through the record. The first plea taken by the Opposite Parties for the repudiation of the claim is that the complainant had Osteoarthritis since inception of the first medical insurance policy and claimed it as a pre-existing disease and as per as per exclusion clause Code Excl-01, the company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 22.06.2022.
This plea taken by the Opposite Parties while rejecting the genuine claim of the complainant is not legal, as it is proved on record vide Ex.C2 that the complainant has been obtaining the insurance policy from the Opposite Parties since the year 2019 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. Moreover, if the complainant was suffering from any disease prior to issuance of the policy, in question, the same must not be escaped from the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite that at the time of issuing the policy, they got medically examined the insured. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.
11. The other plea taken by the Opposite Parties is that it was observed from discharge summary dated 03.06.2022 and indoor case records the insured patient has history of bilateral knee joints and difficulty in walking for last 6 to 7 years. It is proved on record that the complainant had Osteoarthritis since 6-7 years. On this plea of the Opposite Parties, we have perused the certificate issued by treating doctor of Rajeev Hospital, Moga, placed on record by complainant Ex.C17, in which, it is mentioned that due to clerical mistake, the wrong time period of present illness of the patient i.e. six to seven years instead of six to seven months. For the sake of convenience, the relevant portion of the same is reproduced as under:-
“Due to clerical mistake, in history column from our staff had mentioned the wrong time period of present illness of the patient i.e. six to seven years instead of six to seven months. So, therefore according to the history the same had also been mentioned wrongly in discharge card. But the actual period of the illness is five to six months.”
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 bilateral knee joints and difficulty in walking as alleged by the Opposite Parties. Thus, the repudiation of the genuine claim of the complainant on the ground of pre-existing disease or previous ailment is wrong and not justified, hence is liable not only to pay the medical expenses incurred under the policy but also liable to pay compensatory cost besides litigation expenses.
12. Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.2,81,553/-, however vide Ex.C12 & Ex.C13, the amount of Rs.2,81,255/- is proved on record.
13. From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties to pay the claimed amount of Rs.2,81,255/- (Rupees Two Lakh Eighty One Thousand Two Hundred Fifty Five only) to the complainant. Opposite Parties are further directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and Rs.7,000/-(Rupees Seven Thousand only) as 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, they are further burdened with additional amount of Rs.25,000/-(Rupees Twenty 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
