Delhi

West Delhi

CC/18/111

ASHOK DHERI - Complainant(s)

Versus

STAR HEALTH AND ALLIED INSURANCE - Opp.Party(s)

03 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.111/2018

 

IN RE:

ASHOK DHERI

S/O LATE SHRI B.K. DHERI

R/O A-370, DEFENCE COLONY,

NEW DELHI, 110024                                                                  ....COMPLAINANT

 

                                                                     VERSUS

 

STAR HEALTH AND ALLIED INSURANCE COMPANY LTD

Registered & Corporate Office at:

1, NEW TANK STREET,

VALLUVARKOTTAM HIGH ROAD,
NUNGAMBAKKAM,

CHENNAI – 600034

 

ZONE OFFICE AT:

1^ST FLOOR, HIMALAYAN HOUSE,

23, KASTURBA GANDHI MARG,

NEW DELHI – 110001

 

BRANCH OFFICE AT:

C-8, THIRD FLOOR, NEW KIRSHNA PARK,

JANAKPURI WEST,

NEAR JANAKPURI WEST METRO STATION,

NEW DELHI - 110018                                                        …. OPPOSITE PARTY

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:           DATE OF DECISION:

26.03.2018 16.05.2023  03.06.2023

 

 

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

 

Present: Ms. Deepanshi Ishar, counsel for the complainant

                along with complainant in person.

               Mr. Manchit Singh, counsel for the OP.

 

                                                          ORDER

 

Per: Anil Kumar Koushal, Member

 

          Facts germane to filing of the present complaint are summarized as under:

 

1.       Complainant submits that he is a premium paying customer of Health Insurance for the past more than twenty years i.e. from March 1998. The complainant had a Health Insurance policy  with Oriental Insurance Co. starting from 11.03.1998 renewed each year till 10.03.2017. The last renewed policy from Oriental Insurance Co. bearing Policy No. 271400/48/2016/5728 was for the period 11.03.2016 to 10.03.2017.   Before the expiry of above mentioned policy with OIC, the complainant got his medical insurance policy ported to OP company through their Senior Sales Manager, Mr. Gurpreet Singh, and opted for "Star Comprehensive Health Policy" bearing no. P/161127/01/2017/005566 for the period 11.03.2017 to 10.03.2018, for a total sum insured of Rs. 15,00,000/- on payment of  premium of Rs. 46,702/-  ‘without any exclusions' and the same was notified to the complainant by their Branch Manager, Mr. Dinesh Kumar vide E-mail dated 20.02.2017. In the said Policy Document bearing No. P/161127/01/2017/005566(Page 4 of Annexure B) it is mentioned under the heading "Continuity Benefits Applicable" that the Pre-Existing Diseases of the complainant are "Covered" under the said policy.

2.       It is further submitted by the complainant that being a senior citizen aged about 64 years, was a follow up case of low urine flow which is a medically well known indicator of Prostatomegaly i.e. enlargement of prostate and was accordingly prescribed with 'Hytrin' i.e. Alpha Blocker A to ease the urine flow and this fact was duly stated by the Complainant while filling the proposal form dated 18.02.2017. Complainant submitted  that the said proposal form was filled by said  Mr. Gurpreet Singh, Senior Sales Manager, of the OP in his own handwriting in the presence of the Complainant and that the Complainant signed it after reading it carefully. The complainant's symptoms aggravated in the month of September, 2017 and it was only subsequent to the biopsy conducted as per doctor's advice post rise in his Prostate Specific Antigen ("PSA") level that the Complainant was diagnosed with Adenocarcinoma Prostrate i.e. Prostatic Cancer. This diagnosis has been verified by the Complainant's doctor Mr. Rajesh K. Ahlawat, Chairman, Division of Urology & Renal Transplant, Fortis Escorts Kidney & Urology Institute, vide letter dated 03.02.2018. Subsequent to the diagnosis of Adenocarcinoma Prostrate in September, 2017 the Complainant was advised surgery for removal of prostrate and the same was scheduled on 16.02.2018 at Escorts Heart Institute And Research Center, Okhla. Before the said operation was conducted, the Hospital sent a claim for cashless transaction on behalf of the Complainant bearing  Claim Intimation No. CL1/2018/161127/0575881 to OP on 02.02.2018 but the same was rejected by OP and intimated to the hospital vide Claim Rejection Letter dated 03.02.2018, citing the reason that the insured patient did not disclose in his proposal form that he has been regularly monitoring his raised PSA levels. It was also stated therein that the PSA level of the Complainant had risen to 5.6 in January 2017 and USG was suggestive of prostatomegaly. It is submitted that due to this arbitrary and unreasonable rejection of claim, the Complainant had to pay part of hospital bill amounting to Rs. 2,85,189/-  from his own pocket out of the total bill of Rs.4,52,848/-, the remaining amount was paid through the Insurance policy of  Complainant's daughter.

3.       The complainant submits that the OP deliberately withheld the proposal form even though a positive duty is cast upon the insurer under clause (1) of Regulation 4 of the Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002 to provide a copy of the proposal form, free of charge to the insured within 30 days of acceptance of the proposal. However, the OP had sent a copy of the proposal form only in February, 2018 while the policy was issued way back in March, 2017. It is further submitted that it was only subsequent to the rejection of the claim and after the follow up and persuasion from the end of  Complainant that the OP finally sent the proposal form vide E-mail dated 05.02.2018. However, the Complainant was in utter shock and dismay to see that the proposal form sent by the OP was completely different from the one that was signed by the Complainant at the time of issuance of policy. The proposal form sent via E-mail dated 05.02.2018 was fabricated to the extent that the diseases and the medications prescribed as had been stated by the Complainant to said Mr. Gurdeep Singh, did not find mention in the proposal form, except one disease i.e. Blood Pressure (BP) at page no. 4 and 5 of the proposal form, whereas the fact remains that the complainant had disclosed three of his health issues/diseases namely; Blood Pressure, GERD (Gastroesophageal Reflux Disease) and Low Urine Flow, along with the prescribed medicines for each, in the original proposal form. It is pertinent to mention here that the policy of the Complainant with the OP  was ported without any exclusion and pre-existing diseases were also covered, as mentioned in the  Policy Document itself. Hence, there was no reason or occasion whatsoever on the part of Complainant to suppress any material fact related to any of his pre-existing diseases, the same being liable to be covered under the policy. It is submitted that the Complainant was taken aback to find that page nos. 4, 5 and 6 of the proposal form had been replaced and the signature of the Complainant on page no. 6 was forged, which clearly amounts to unfair trade practice on part of the Opposite Party. Complainant also submitted  that the forged and fabricated proposal form received by the Complainant via E-mail dated 05.02.2018 bears two registration numbers and two serial numbers which is conclusive proof of  fabrication of the original proposal form which was signed by the Complainant on 18.02.2017. The complainant placed on record a copy of the proposal form of his daughter namely Ms. Shruti Dheri for the same product i.e. "STAR COMPREHENSIVE INSURANCE POLICY" submitted to the same OP, wherein only one registration number and one serial number is mentioned. A bare perusal of the true signature of the Complainant in his other documents of proof when compared to the signature in the fabricated proposal form makes it abundantly clear that this is not the true signature of the Complainant and is an attempt to replicate his signature. It is submitted that if the proposal form as sent by the OP is in fact the basis of the policy bearing no. P/161127/01/2017/005566 issued to the Complainant, then it is very surprising why the policy covers the Complainant against three Pre-existing diseases i.e. (a) Hypertension, (b) Diseases of the Musculoskeletal and (c) Diseases of upper GI tract, whereas the fabricated proposal form reflects only Blood Pressure as the disclosed pre-existing disease. This fact further reflects that the proposal form had been doctored by the OP because the Complainant had mentioned blood pressure (which has been reflected as an indicator of hypertension), low urine flow and  GERD (Gastro esophageal reflux Disease) as pre- existing diseases in his original proposal form, along with the medications for each. Therefore, it is submitted that, clearly there has been manipulation and mischief from the end of OP wherein it has replaced the original proposal form and sent a fabricated one via E-mail dated 05.02.2018, which bears forged signatures of the Complainant. Subsequent to  receipt of  a fabricated proposal form dated 18.02.2017 the Complainant met Mr. Dinesh Kumar, Branch Manager, of  OP at their office in Janakpuri, New Delhi on 07.02.2018 to raise a grievance on this issue. At that meeting Mr. Dinesh Kumar, Branch Manager, confronted Mr. Gurpreet Singh, Senior Sales Manager, through whom the complainant had ported his policy and expressed his disappointment by saying "The same thing has happened, I told you", which further substantiates the knowledge of  fraud and foul play at the end of OP, which was done in connivance with the officers of the OP to cause wrongful gain to themselves and loss to the Complainant by depriving the Complainant of his rightful claim under the policy. The Complainant was also asked by Mr. Dinesh Kumar to meet Mr. Ajeesh, Executive of Claim Department at OP's Zonal Office at Himalaya House, Kasturba Gandhi Marg. The Complainant met Mr. Ajeesh on 08.02.2018. On 12.02.2018 the Complainant received the notice of cancellation of his policy bearing no. P/161127/01/2017/005566, dated 05.2.2018 from the OP. Though the notice was dated 05.02.2018 but from the track record of the notice/consignment bearing no. ET111851576IN available at the website of Department of Posts, Ministry of Communications, Government of India, it is established beyond doubt that the letter was dispatched only on 09.02.2018. This notice of cancellation was clearly an afterthought to cover up the fabricated proposal form after the meetings on 07.02.2018 and 08.02.2018 where the Complainant confronted the officers of the OP. The said cancellation notice dated 05.02.2018 contains the following ground for the cancellation of Complainant's policy bearing no. p/161127/01/2017/005566:

"we wish to bring your kind attention that during the scrutiny of the above claim papers, we observe that you have NOT declared the detail; CA PROSTATE (relating to Mr. Ashok Dheri), which were found to be pre- existing at the time of taking the policy for the first time during 11-MAR-17 TO 10-MAR-18. This amounts to non-disclosure of material facts”

 

 It is submitted that the reason as stated in the cancellation notice dated 05.02.2018 is factually and medically incorrect. As per the observation in the letter dated 03.02.2018 of Dr. Rajesh K. Ahlawat, Chairman, Division of Urology and Renal Transplant, Fortis Escorts Kidney & Urology Institute, New Delhi, the complainant was suffering from Lower Urinary Tract Symptoms i.e. low urine flow/and Benign Prostatomegaly i.e. Enlargement in Prostate, but it was not cancerous. The doctor further observes that Adenocarcinoma Prostate i.e. Prostatic Cancer was diagnosed only in September, 2017 post biopsy which was conducted on doctor's advice. It is further observed by the Doctor in the same letter and is also medically established that Grey Zone PSA (Prostate Specific Antigen) is not an indicator of proven cancer in prostate. Therefore, the decision of the OP for cancellation of complainant's policy bearing P/161127/01/2017/005566 on the ground of non- disclosure of material fact (CA Prostate) is absolutely arbitrary, unreasonable and based on incorrect facts, which amounts to deficiency of service at the end of OP as prostatic cancer or CA Prostate was not diagnosed at/before  taking the policy in March, 2017.

4.       The complainant submits that  he was already a premium paying Health Insurance Policy holder with OIC  for the  period of insurance being 11.03.2016 to 10.03.2017, prior to porting the policy with the OP with a sum insured of Rs. 4,50,000/- He also held Health Insurance Policy bearing no. OG-17-1134- 8416-00000121, with Bajaj Allianz General Insurance Company Ltd. for the period from 28.12.2016 to 27.12.2017 with a total sum insured of Rs. 12,00,000/-. If CA Prostate (Prostatic Cancer) had been diagnosed prior to porting the policy with the OP, as implied by the OP, the complainant would have got operated him then only and claimed the Medical expenses from either OIC or Bajaj Allianz General Insurance Company Ltd and not waited to get the policy ported with the OP, as he was already insured with two other Insurance Companies as mentioned above. Hence, there arose no reason for the Complainant to suppress any of the material information in order to defraud the OP.

5.       It is contended that it is a settled position in law that in a contract of Health Insurance, the insured being a layman need not mention the exact medical terminology of his disease and a universally known symptom of the same amounts to sufficient disclosure. It is further pertinent to mention that as per the definition of "pre-existing disease" which is mentioned at page 8 of the Customer Information Sheet attached to the Policy with the  OP subscribed by the Complainant, a "pre-Existing Disease means any condition or ailment or injury or related condition (s) for which the insured person had signs or symptoms and/or were diagnosed and/or received medical advice /treatment within 48 months prior to insured person's first policy with any Indian Insurance Company." Therefore, as per this definition, it was sufficient disclosure of the pre-existing disease when the Complainant mentioned low urine flow along with its medication, which is universally known to be an indicator and/or a related condition of prostatomegaly. The onus affirmatively lies on the insurer to verify the same before underwriting the risk.

6.       It is submitted that due to  intolerable harassment  by the OP resulting into  rejection of his policy, the Complainant was compelled to register his grievance before different authorities vide e-mail dated 13.02.2018 to the grievance cell of the OP registering his  protest against arbitrary rejection of claim and subsequent cancellation of policy. The said E-mail was replied on 15.02.2018 by the OP, upholding the rejection of claim. In one of the points made in the reply, the Grievance Department of the OP has mentioned that "in proposal form which was submitted to us contained BP, HTN, Oesophageal Reflex and not PSA", whereas in the fabricated proposal form sent by the OP via E-mail dated 05.02.2018, one and only disease which finds mention is Blood Pressure (BP) and  there is absolutely no mention of HTN and/or Oesophageal Reflux i.e. (GERD). It is of utmost importance to state here that these two diseases i.e. HTN and Oesophageal Reflux (GERD) which are nowhere to be found in the fabricated proposal form sent by the OP on 05.02.2018 were actually part of the original proposal form along with one more disease i.e. low urine flow and its medication, which the complainant had signed but was subsequently fabricated and forged.   It is further submitted that in the same reply dated 15.02.2018, it is mentioned that "you (complainant) have confirmed that you have not placed the signature in the proposal form" whereas the truth is that the Complainant had duly signed the proposal form which had disclosed the pre-existing diseases at page no. 4 and 5, however, the fabricated proposal form sent via E-mail dated 05.02.2018 did not have the pre-existing diseases mentioned and page no. 6 was also replaced, which is evident from the forged signature of the Complainant. This is another aspect which reflects the knowledge of the OP of the fraud being played on the Complainant by sending a fabricated document with forged signatures instead of the original proposal form. It is further submitted that the complainant has also reported his grievance to the IRDAI by speed post on 28.02.2018 and vide E-mail dated 06.03.2018 and same has been replied vide E- mail dated 06.03.2018 confirming the registration of the complaint with IRDAI token no. 03-18-004269. The Complainant has also complained against the said fraudulent act of the OP to Insurance Ombudsman vide E-mail dated 12.02.2018 and Speed Post dated 28.02.2018, which was replied by his office  mentioning that "Presently, no ombudsman is posted at the Centre. It is further submitted that the complainant in order to bring the wrong-doers to justice, has taken the steps under the law of land and lodged a formal Police Complaint with P.S. Defence Colony, New Delhi on 06.03.2018 against Mr. Gurpreet Singh and Mr. Dinesh Kumar of OP.

7.       Complainant submits that contract of Insurance is a contract of Uberrima Fides i.e., utmost good faith. It is a two-way traffic and hence obligation of good faith is equally cast upon the insurer and the insured, The officers of the Insurance Company must discharge their duties diligently, taking into consideration the interests of its 'valued clients'. The Insurance sector has deteriorated to such extent that large number of frauds are being reported every day, which are being designed and implemented by the Insurance Companies in connivance with their officers. Instead of taking precautionary measures and getting such fraudulent activities investigated thoroughly as per the law of the land, the Insurance Companies are hell bent upon harassing their own customers. The Hon'ble Supreme Court in Satwant Kaur Sandhu V. New India Assurance Co. Ltd. (2009) 8 SCC 36 observed "that the obligation of the insured to disclose extends only to facts which are known to the insured and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses."  The Complainant herein has clearly met that standard and cannot be faulted for non- disclosure of material facts which are not known to him.   It is further submitted that all the premiums of the Complainant for the past 20 years have lapsed due to the arbitrary and unreasonable cancellation of Complainant's policy vide letter dated 05.02.2018 which amounts to deficiency of services.  Hence the present complaint.

8.       The following reliefs are claimed by the complainant:            

 

a) Direct the OP to restore the policy bearing P/161127/01/2017/005566 of

    the Complainant with the same terms and conditions as before;

 

b) Direct the OP to reimburse the amount of Rs.2,85,189/- to the

    Complainant which has been paid towards the Hospital Bill;

 

c) Direct the OP to pay compensation of Rs.5,00,000/- to the Complainant

    for mental agony and harassment caused to him.

 

 

 9.      Complainant attached the following documents with his complaint:

         

1. Copy of policy No. 271400/48/2016/5728 with OIC- Annexure A.        

          2.  Copy of Policy No. P/161127/01/2017/005566  with OP- Annexure B;

          3. Copy of  E- mail dated 20.02.2017 -  Annexure C.

          4.  Copy of letter dated 03.02.2018 from Dr. Rajesh K. Ahlawat- Annexure D

          5.  Copy of the Claim Rejection Letter dated 03.02.2018- Annexure E

6.  Copy of Hospital Bill and payment receipt - Annexure F COLLY.

7.  Copy of the IRDA(Protection of Policyholders' Interests) Regulations, 2002

                - Annexure G.

8.  Copy of the fabricated proposal form sent by the Insurance Co. vide

                E-mail dated 05.02.2018- Annexure. H, COLLY.

9.   Copy of proposal form of Complainant's daughter, MS. Shruti Dheri

                 - Annexure- I.

10.  Copy of the complainant's Passport, and Premium cheque

                  bearing No.324 dated 23.02.2017- Annexure J(Colly).

          11.   Copy of the consignment tracking record - Annexure K COLLY.

          12. Copy of Insurance policy with Bajaj Allianz General Insurance Company Ltd.

               - Annexure L.

          13. Copy of the Customer Information Sheet of the Opposite Party- Annexure M.

          14. Copy of the E-mail dated 13.02.2018 and reply dated 15.02.2018-

               Annexure N(COLLY).

          15. Copy of  E-mail to IRDA and its reply dated 06.03.2018 - Annexure O(COLLY)

 

16. Copy of postal receipt - Annexure P.

17. Copy of E-mail and letter to Insurance Ombudsman and its reply – Annexure

      Q(Colly)

18. Copy of Postal Receipt of the Speed Post to Insurance Ombudsman-

      Annexure- R.

          19.   Copy of Police Complainant dated 06.03.2018- Annexure S.

          20.  Copy of Report of the Forensic Expert- Truth Labs dated 02.12.2020

 

10.     On admission of the complaint on 28.03.2018, notice was issued to OP, who filed written statement.   OP submitted that   no cause of action ever arose in favour of the complainant and against the it for filing the present complaint. OP admitted that the complainant/insured through porting had availed a Star Comprehensive Insurance Policy for the period of 11.03.2017 to 10.03.2018 for self for the sum insured of         Rs.15,00,000/-. The insured was earlier covered with OIC  from March 2013 to March 2017. The Preamble of the Policy clearly states the Proposal, Declaration and other documents if any given by the proposer form the basis of the policy of insurance, Subject to terms, conditions, exclusions and definitions contained herein or endorsed or otherwise expressed hereon, the Company undertakes If the insured person shall contract any disease or suffer from any illness or sustain any bodily injury through accident and if such disease or injury shall require the insured person, upon the advice of the duly Qualified Physician / Medical Specialist/ Medical Practitioner or duly qualified Surgeon to incur Hospitalization expenses for medical /surgical treatment at any Nursing Home / Hospital in India as herein defined as an inpatient the Company will pay to the insured person the amount of such expenses as are reasonably and necessarily incurred in respect by or on behalf of the Insured Person up to the limits indicated"

11.     OP submitted that the complainant/insured was hospitalized at Escorts Heart Institute & Research Centre on 15.02.2018 for the treatment of Adenocarcinoma Prostate and raised Pre-Authorization request for cashless treatment stating that patient was admitted with the family history of CA Prostate, LUTS with dribble on Hytrin 1 mg off and on last 10 years, gradually worsening, especially at night and raise in PSA  to 5.6 in Jan 2017. The USG suggestive of prostatomegaly with insignificant post void residual urine. The above findings confirm that the complainant/insured has been regularly monitoring his raised PSA.   At the time of porting the policy, the insured has not disclosed the above mentioned medical history/his health details in the proposal form and other documents submitted to the OP which amounts to misrepresentation/non-disclosure of material facts. Moreover, every person before taking the policy goes through the terms and conditions and clauses mentioned therein the policy, the same was done by the insured person and as per clause 9 of conditions of the policy, the company shall not be liable to make the payment under the policy due to misrepresentation/non-disclosure by the insured person. Due to such misrepresentation/non-disclosure of the fact to the OP, said cashless authorization was rejected and the same was communicated to the complainant/insured vide letter dated 03.02.2018. 

12.     According to OP, on scrutiny of the claim records, it is observed that the complainant had earlier taken medical insurance policies from 11.03.2013 to 10.03.2017 from the OIC and subsequently taken policy from the OP from 11.03.2017 to 10.03.2018 under portability. At the time of porting the policy, the insured had not disclosed his  above mentioned medical history/health details  in the proposal form and other documents submitted to the OP which amounts to misrepresentation/non- disclosure of the material facts. These  findings, confirms that the insured patient has CA Prostate, LUTS with dribble on Hytrin 1 mg off and on last 10 years, gradually worsening, especially at night and raise in PSA in Jan 2017 prior to inception of the medical insurance policy and the same was not disclosed in the Proposal Form. Hence, it is a non disclosed pre-existing disease. The present admission and treatment of the insured patient is for the pre-existing disease and its related complications. During scrutiny of the claim papers, it was observed that the insured person had not declared the details such  as CA PROSTATE, which were found to be pre-existing at the time of taking the policy for the first time during 11/03/2017 to 10/03/2018 which amounts to non disclosure of the material facts. As per clause 14 of the conditions of the policy, the company may cancel the policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material fact by the insured person.  Accordingly,  the OP after going through all the facts and circumstances of the present claim and due to such non disclosure of PED and misrepresentation on the part of complainant,  cancelled the policy of the complainant through a letter dated 05.02.2018.

13.     OP denied that the proposal form was filled by Mr. Gurpreet Singh, employee of OP. It is submitted that the complainant/insured person himself has given a declaration to the OP stating and confirming that the complainant himself filled up the proposal form and the facts mentioned relating to him/other persons proposed for insurance relating to the health status are correct and nobody had undergone any test or medical examination procedure which has shown any health problem whatsoever in nature, other than what has been mentioned in the proposal form referred to herein. The said declaration is duly signed by the complainant and is dated 18/02/2017. It is further submitted that the complainant has written an email dated 19/02/2017 himself to the OP stating that the complainant has undergone a minor wrest operation in 2012 and thereafter he had not any problem of any nature till date. The above stated statement in the email of the complainant to the OP clearly shows that the complainant had hidden the material facts from the OP.  

14.     OP denied that it had deliberately withheld the proposal form of the complainant.  OP denied that the proposal form sent by it was completely different from the one which was signed by the complainant. It is further specifically denied that the OP has replaced the pages of the proposal form or forged the complainant's signatures. It is submitted that the complainant had created the present false and fabricated story malafidely and illegally just to extort money from the OP.   

15.     OP denied that the letter of cancellation of policy sent by the OP is an afterthought to cover up the fabricated proposal form after the meetings with the officials of OP.  It is  denied that the complainant had informed about his pre-existing disease to the OP and only because of the said reason, his policy has been cancelled by the OP.  

16.     OP took the objection that no territorial jurisdiction arisen in favour of complainant and against the OP. OP, therefore, prayed for dismissal of the complaint in the interests of justice.

 

 17.    OP filed with its written statement, copies of the power of attorney, proposal form, portability form, policy form along with terms and conditions, request for cashless hospitalization, letters of rejection of pre-authorization for cashless treatment dated 02.02.2018 and 03.02.2018, letter dated 05.02.2018.

18.     In rebuttal to the averments of OP as taken in its written statement, complainant filed replication and  denied all the allegations of OP in toto. Complainant submitted that his  policy with the OP was ported without any exclusion and Pre-Existing Diseases were also covered, as mentioned at page no. 4 of the Policy Document itself. Hence, there was no reason or occasion whatsoever on part of the Complainant to suppress any material fact related to any of his Pre-Existing Diseases, the same being liable to be covered under the policy. Complainant denied that any terms and conditions were served to the complainant along with the Policy Schedule.  Complainant  vehemently denied that he was admitted in the hospital with the family history of CA Prostate.  In case the OP had any doubt about his pre-existing disease, the OP was free to subject the complainant to medical tests before issuing the policy. If they do not do it, they do it at their own peril. In Oriental Insurance Co. Ltd. vs Yogesh Kapoor, decided on 14.12.2006, Hon'ble State Commission, Delhi held that  "Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don't discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable".

19.     Complainant submitted that  as per the observation in the letter dated 03.02.2018 of Dr. Rajesh K. Ahlawat, Chairman, Division of Urology and Renal Transplant, Fortis Escorts Kidney & Urology Institute, the complainant was suffering from Lower Urinary Tract Symptoms i.e. low urine flow and Benign Prostatomegaly i.e. Enlargement in Prostate, but it was not cancerous. The doctor further observes that Adenocarcinoma Prostate i.e. Prostatic Cancer was diagnosed only in September, 2017 post biopsy which was conducted on doctor's advice. It is further observed by the Doctor in the same letter and is also medically established that Grey Zone PSA (Prostate Specific Antigen) is not an indicator of proved cancer in prostate.

20.     Complainant  denied that his admission and treatment in the hospital was for  the pre- existing disease and its related complications.  It is submitted that in the form for request for cashless hospitalization for medical insurance policy which is relied upon and filed by the OP with their written statement and marked as Annexure OP 1/6, it is clearly written "Sept 17" in the second part of the form titled as "TO BE FILLED BY THE TREATING DOCTOR/HOSPITAL" in front of item no. E "Duration of the present ailment". Thus it dampens the ardour of the OP and its false stand has been exposed as it is proved beyond doubt on the basis of the letter of treating Doctor dated 03.02.2018 and also substantiated by the form for cashless hospitalization as relied upon by the OP, that the Complainant was diagnosed provisionally with CA Prostate only in the month of September 2017 and not prior to inception of Health insurance Policy in question.   The rejection of the policy and repudiation of claim by the OP is highly arbitrary and unreasonable and amounts to deficiency of service on the part of OP.  A bare perusal of the alleged declaration relied and annexed by the OP(Annexure-OP1/10) makes it clear without scintilla of doubt that the OP has again tried to forge complainant's signature as the signature on the alleged declaration neither matches with the complainant's alleged signature on the forged and fabricated proposal form dated 18.02.2018 nor with the original signature of the complainant on other documents of proof relied upon by the complainant(Annexure J-Colly).  The OP be put to strict proof thereof. It is further submitted that the alleged declaration is a simply typed matter on a piece of paper without bearing name of the OP nor with any seal/stamp. Moreover, even the last digit of the proposal form No. on this declaration letter is tampered with/overwritten which raises serious doubt on its authenticity.

21.     On the question of territorial jurisdiction, complainant  submitted that the branch office of OP which had issued the policy to the Complainant and dealing with the present dispute is situated within the territorial jurisdiction of this Commission and therefore,  part of the cause of action has also arisen within the territorial jurisdiction of this Commission and therefore, this Commission has the territorial jurisdiction to entertain the present Complaint.

22.     Complainant at the end reiterated and reaffirmed the  averments and prayers made in the complaint. 

23.     Evidence by way of affidavit was led by the respective parties and they exhibited the documents filed on record.   Written arguments were also filed by the parties on record. Oral arguments were heard on 03.5.2023 and 16.5.2023 when Ms. Deepanshi Ishar, counsel for the complainant and Mr. Manchit Singh, counsel for the OP put forth their respective submissions based on the pleadings filed on record.  

24.     During arguments, counsel for the complainant submitted that she had filed an application for bringing on record  the affidavit of additional evidence adduced on record by the complainant.  We find that the same is recorded in the order dated 06.1.2021.  Despite notice to the OP, no reply or objection was filed by the OP.  Accordingly,  the  said application was allowed and additional evidence taken on record to meet the ends of justice, keeping in view the verdict of Hon’ble Apex Court in the case of Jiten K.Ajmera & Anr. Vs. Tejs Cooperative Housing Society, Manu/SC/0665/2019, (2019)6 SCC 128 and of the Hon’ble NCDRC in the case of Branch Manager, Universal Sompo GeneraL Insurance Company Limited and Others vs. Didwaniya Exim Private  Limited and Ors, decided on 21.1.2020 (Manu/CF/0064/2020).   In this view of the matter, counsel for the complainant did not press her application for seeking expert opinion of handwriting expert and accordingly the same was dismissed as withdrawn.

25.     On the pleadings of the parties the following moot points arise for consideration  in order to take the matter to its logical conclusion:

          1. Whether this Commission has the territorial jurisdiction to try the present

               complaint.

2.  Whether the complainant had mentioned about his pre-existing diseases in

     the  proposal form at the time of porting the insurance policy in 2017 with

     the OP;

          3. Whether the proposal form as submitted by the  complainant was fabricated/

              forged by the OP;

          4.  Whether the ailment for which the complainant had taken treatment in the

               hospital, claim of which was denied by the OP, was pre-existing.

          5. Whether the policy of the complainant was rightly cancelled by the OP;

26.     As regards the first  bone of contention relating to territorial jurisdiction of this Commission, we may note that the Policy in question for the period from 11.3.2017 to 10.03.2017  was issued by the Branch Office of OP based at Janak Puri, New Delhi and therefore, this issue is decided in favour of the complainant and against the OP in terms of Section 11(2) of the CP Act, 1986.

27.     Now coming to adjudicate the rest four crucial questions, we find from the record that  before porting the Medical health policy  with the OP, the complainant was earlier subscribing to the medical health policy since 1998 and admittedly as per OP from 2013 onwards from Oriental Insurance Company.  According to the complainant when he applied for the Star Comprehensive Health Policy of  OP in February, 2017,  he had categorically told the Senior Sales Manager  of OP Mr. Gurdeep Singh to mention his pre-existing disease of low urine flow. i.e., he was already suffering from Prostate problem and the same was recorded in front of him.   However, when he  received the policy from the OP, the proposal form filled by him was not received.  He even made a request for supply of the proposal form which was not given and ultimately through  email dated 05.2.2018 he received the proposal form which mentioned only the “BP/Hypertension” as the pre-existing disease and against rest of the diseases  only “NO’ was mentioned.   The complainant was shocked and rightly so as in the policy  issued by the OP in March, 2017, it admittedly mentioned three pre-existing diseases namely, (1)disease of the Upper GI tract and their complications, (2) Diseases of the musculoskeletal system and their complications and (3) Hypertension and its complications.  If the proposal form as submitted on record by the OP is to be trusted, then  how come the three diseases from which the complainant was already suffering, came to be mentioned in the policy document.  This creates suspicion on the intention of the OP and amounts to fabricating the proposal form.    Further, the doubt of fabrication of original proposal  form as submitted by the complainant  is strengthened by the email dated 15.2.2018 sent by the OP whereby the OP had reviewed the cancellation of existing policy of the complainant. In the said email, the OP again mentioned that “ In the proposal form which was submitted  to us contains BP, HTN, Oesophageal Reflex and not PSA”.(Annexure N).  This again belies the stand of OP taken in the proposal form sent to complainant along with email dated 05.2.2018. Due to change of stand off and on by the OP, to the detriment of complainant, the apprehension of fabrication of proposal form expressed by the complainant stands proved.  Still the complainant did not stop at that in proving his contention that the proposal form originally submitted by him  was forged.  He placed on record by way of additional evidence, the report of the Truth Labs Forensic Services, which is an independent Forensic Science Laboratory in Delhi.   Though this report has been challenged by the OP as not authentic but it is worthwhile to quote the opinion given by  Mr. S.C.Gupta,  Director, Documents Division of the said Truth Labs who happens to be  a retired Government Examiner of  Questioned Documents:

          “Opinion            

            Cumulative consideration of all the above observations indicate that the person who wrote admitted signatures marked A1 to 23 did not write the questioned signature Marked “Q1.”

Here, for the sake of clarity,  we may  mention  that the signatures marked Q1 were the alleged signatures of complainant as appended on the proposal form placed on record by the OP. No separate or independent report has been filed on record by the OP to contradict the said report of Forensic Expert.

28.     We find that in the rejection letter dated 03.2.2018, the OP has mentioned  that the complainant was diagnosed with the disease “ADENOCARCINOMA Prostrate” and this was result of pre-existing disease of raised PSA.   According to OP as per the case  sheet, - PSA raised to 5.6 in Jan 2017 itself and USG shows suggestive of prostatomegaly.    Based on this  finding, the OP had rejected the mediclaim policy of the complainant on 05.2.2018.    On this issue, Dr. Rajesh K.Ahlawat of Fortis Escorts from whom the complainant was taking treatment, has opined vide his Certificate dated 03.2.2018 (Ann.D) as under:

“This is to state that Mr. Ashok Dheri, was a follow up case of lower urinary tract symptoms and grade I-II benign prostatomegaly.  He was kept on Alpha-blockers.  A grey zone PSA was consistant with benign disease.  He is also a known case of Hypertension and GERD which is not related to present disease.   His symptoms  aggravated in September, 2017 with evidence of further rise in PSA. He was investigated further and biopsied  on the basis of MRI findings and a module in prostate(DRE finding).   The diagnosis of Adenocarcinoma Prostate was proved only in September, 2017.”

                                                                   (emphasis added)

 

29.     The fact that the complainant was stricken with the disease of Adenocarcinoma Prostate only in September, 2017 also finds support from the document of OP (OP.1/6) which is a request for cashless hospitalization.  In this document also, the OP mentions the duration of the present illness as ”Sept 2017”.   It is interesting to note that  while issuing the said certificate, the Doctor concerned was candid in mentioning that the complainant was known case of suffering from low urine flow.  This also goes to prove the stand of the complainant that he was earlier suffering from the disease of low urine flow, which fact  he had got mentioned in the proposal form but deliberately removed from there.

30.     Further, on the question  whether  the insurance policy was issued to the complainant without  exclusions, we  may refer to the email dated 20.2.2017 issued by the OP to the complainant to the following effect:

“As discussion with  you & Gurpreet regarding  Star Health CHI comprehensive Policy coverges, we accepted your portability case as per IRDA Rule with Portability benefits without any Exclusions”.

31.     Complainant has also proved on record two Sl Nos.7060494 and 7060495  mentioned on the proposal form, made available to him by the OP vide email dated 05.2.2018, which smacks of  some hanky panky.

32.     All the above documents vociferously prove beyond doubt that (1)  the proposal form originally filled by the complainant mentioning the disease of “low  urine flow” relating to prostate, was fabricated by  someone in the OP company, to the unjust advantage of OP and (2)  that  the complainant had contracted the disease “CA Prostate” only in September, 2017.  Even if presuming for the sake of argument of OP that the complainant  had not disclosed  his pre-existing disease of suffering from “low urine flow” and we further presume that the proposal form was not forged by the OP, still  the OP cannot escape from its email dated 20.02.2017 that the policy was issued to the complainant without any exclusions.  The complainant is right in contending that if the OP had any doubt about the  credibility of his submissions, it could have got the complainant medically tested him before issuing the new policy after portability.   The complainant is also right in contending that whatever was in his knowledge, he had disclosed to the OP.  Reliance of the complainant on this point on the judgment of the Hon’ble Apex Court in the matter of Satwant Kaur Sandhu V. New India Assurance Co. Ltd.(supra) is well placed.

33.     Even the previous policies of complainant from 2013-2017 which are admitted by the OP in its written statement,  there is  mention about the pre-existing diseases and continuation of the policy since 1998.  If the OP was so keen to probe before concluding arbitrarily to cancel the policy and reject the legitimate  mediclaim of complainant, it could have got the matter investigated to know as to from which  pre-existing disease the complainant was suffering.

34.     In Oriental Insurance Co. Ltd. vs Yogesh Kapoor, decided  on 14 December, 2006, the Hon’ble SCDRC, Delhi has aptly observed  as under:

 “Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.”

 

35.     Our foregoing conclusions  result in answering the last four questions posed for our consideration, in favour  of complainant and against the OP.  Accordingly the complaint is allowed  and OP is held guilty of deficiency in service and adopting unfair trade practice in unjustly and arbitrarily cancelling the Star Comprehensive Health  policy, bearing No.P/161127/01/2017/005566 effective for the period from 11.03.2017 to 10.03.2018 based on fabricated proposal form.  OP is directed to restore the same policy with its terms and conditions.  Further   OP is directed to reimburse to the complainant the amount of Rs.2,85,189/- spent by him on his treatment as detailed in the foregoing paras.  For the unnecessary harassment and mental agony faced by the complainant, OP is directed to pay  Rs.30,000/- as compensation and Rs.25,000/- as litigation cost to the complainant.  Let this order be complied with by the OP within thirty days of receipt of copy of this order. 

          A copy of this order shall be supplied free of cost  to parties to the dispute in the present complaint,  upon a written requisition being made in writing  in the name of President of the Commission in terms of Regulation 21 of the Consumer  Protection Regulations, 2020.  File be consigned to record room after pronouncement of order.

 

 (Richa Jindal)                            (Anil Kumar Koushal)                   (Sonica Mehrotra)

    Member                                       Member                                   President