BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.

                                                           Complaint No.:195 of 2017.

                                                           Date of Instt.: 11.08.2017.

                                                           Date of Decision: 19.06.2018.

Baldev Kumar son of Sh.Moti Ram, Kalra Kitab Mehal, Opp. Palika Bazaar, Near Nagar Palika, Fatehabad, District Fatehabad.

                                                                             …Complainant.

                             Versus

1.Star Health and Allied Insurance Company Limited, Regd. and Corporate Office at 1, New Tank Street Valluvar Kottam high Road Nungambakkam, Chennai, through its Manager.

2.Tarun Kumar, Sales Manager of Star Health and Allied Insurance Company Limited, Shop No.25 Jaat Dharamshalla, Fatehabad.

3. Ashwani Kumar, Agent/Broker of Star Health and Allied Insurance Company Limited, Shop No.25, Jaat Dharamshalla, Fatehabad.

                                                                             …Opposite Parties.

             Complaint U/s 12 of the Consumer Protection Act, 1986

Before:                Sh.Raghbir Singh, President.

                            Sh. M.K. Khurana, Member.

Present:                Sh.U.K.Gera, counsel for the complainant.

Sh.Sachdev Bishnoi, counsel for the OP no. 1.

OPs no. 2 and 3 already ex-parte.

ORDER:

                             The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Parties (hereinafter to be referred as OPs) with the averments that he purchased a Diabetes Safe Insurance Policy valid from 9.3.2017 to midnight 8.3.2018 and a payment of Rs.27,178/- was made by him to Op No.1 through Ops No.2 and 3 at Fatehabad. The above said Diabetes Safe Insurance Policy was purchased by the complainant for the first time in the year 2015 and the first period of insurance was from 09.03.2015 to 08.3.2016. It is further submitted that there was no break in the above said policy and as such the complainant is consumer of OPs as defined in the Consumer Protection Act, 1986.

2.                          It is further submitted that the complainant was  medically examined properly at the time of getting himself  insured and all the necessary medical tests were got done by the doctors of the hospitals on the panel of OP No.1. The complainant was also underwent ultra-sound test and after examining all the  tests reports, the policy in question was issued. At the time of issuance of the insurance policy, the complainant had disclosed that his laprotomy was done nineteen years back.

3.                          It is further submitted that in the month of May 2017, the complainant suffered a health problem and as such he was admitted in BLK Super Specialty Hospital, Pusa Road, New Delhi on 13.05.2017. On evaluation, a major defect in his abdomen was found and he was operated on 15.05.2017. Regarding the same the Op No.1 was intimated on 13.05.2017 as the policy of the insurance in question was a cashless policy.  However, the above said facility was denied to the complainant by OP no.1 on 15.05.2017 on the ground that the current claim for Ventral Hernia is a complication of a previous laprotomy done, which is not payable for 48 months. It is further submitted that the hospital had charged 3,02,775/- from the complainant for treatment and surgery, which was to be paid by the OPs as per terms and conditions of the policy of insurance. However, the OP no.1 denied the above said facility at the eleventh hour and the complainant was forced to make the payment in advance as he was to be operated immediately. It is also further submitted that the present diseased i.e. abdominal distention for which surgery was done was not in any manner related to the laprotomy which was done nineteen years back. Therefore, there is a deficiency on the part of OPs by not providing cashless facility to the complainant.

4.                          The complainant has further prayed that the OPs may be directed for making a payment of Rs.3,02,775/- i.e. the amount of treatment/ surgery with interest @ 18% from the date of repudiation till realization. The complainant has also sought a compensation of Rs.50,000/- and Rs.11,000/- as litigation charges from the OPs.  Hence the present complaint.

5.                          On being served, the OP no. 1 appeared through its counsel and resisted the complaint by filing a reply wherein various preliminary objections with regard to maintainability, suppression of material facts, cause of action and jurisdiction etc. have been raised.

6.                          In reply on merits, it is submitted that it is a matter of record and also admitted by the complainant himself that his laprotomy was done nineteen years back. As per Exclusion Clause No.1 of the policy, the company is not liable to make any payment in respect of expenses for treatment of pre-existing disease, until 48 months continuous coverage has elapsed, since inception of the policy. In the present case since 48 months had not elapsed from  inception of the policy, as such the complainant was not entitled for any insurance benefits as per Exclusion Clause No.1.

7.                          It is further submitted that there is no deficiency on the part of Op no.1 in rendering service to the complainant. The decision of Op No.1 in denying the insurance benefits to the complainant is perfectly in accordance with the terms and conditions of the policy and sustainable in the eyes of law. Therefore the preset complaint is devoid of any merits and the same is liable to be dismissed.

8.                          Despite proper service OPs no. 2 and 3 did not appear before this Forum and as such they were proceeded against ex-parte vide order dated 27.10.2017.

9.                          The learned counsel for the complainant tendered affidavit of the complainant in evidence as Annexure C-1 along-with documents as Annexure C-2 and C-3.  Sh. N.Gopalan, Chief Manager tendered in evidence his affidavit as Ex.RW1/A. The OPs also tendered in evidence the documents as Annexure R1 to Annexure R10 and closed the evidence.

10.                        We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is not disputed that the complainant had purchased Diabetes Safe Insurance Policy from the Op No.1 and the same was valid from 09.03.2017 to 08.03.2018. It is also not disputed that an amount of Rs.27,178/- was paid by the complainant as premium of the above said policy to the OP No.1. It is also not disputed that first time, the complainant had obtained the above said policy in the year 2015 and the period of insurance was 9.3.2015 to 8.3.2016 and there was no break in the policy period. It is also not in dispute that the complainant had taken treatment of laprotomy nineteen years back from the issuance of insurance policy in question. It is also not disputed that the complainant was admitted in BLK Super Specialty Hospital on 13.5.2017 and he was operated upon on 15.05.2017 for major problem in abdomen. The insurance claim of the complainant has been repudiated by Op No.1 on the ground that the complainant had taken treatment of laprotomy nineteen years back and the present disease i.e. Ventral Hernia is complication of previous surgery/ laprotomy. The onus was upon the Op No.1 to prove that the present disease is complication of previous surgery/ laprotomy. However, the OP No.1 and 2 has failed to prove any cogent, convincing and adequate evidence or any other opinion of medical experts to prove that the present disease is complication of the previous laprotomy taken nineteen years back.

11.                        It is also the case of OP no.1 that as per Exclusion Clause no.1 of the policy the company is not liable to make any payment in respect of expenses for treatment of pre-existing disease until 48 months of continuous coverage has elapsed. In the present case the insurance benefits have been declined by Op No.1 on the ground of pre existing disease which was treated nineteen years back. We are of the opinion that pre existing disease is only the disease which exists at the time of obtaining policy or in the near proximity of it and not the disease for which a person already obtained treatment nineteen years back and cured himself. Therefore in the present case, we are of the opinion that since the treatment of laprotomy was taken by the complainant nineteen years back and thereafter he was leading healthy life as such the complainant was not suffering from any pre existing disease at the time of obtaining policy in question. Moreover, it is the case of the complainant that at the time of issuance of the insurance policy, he was medically examined and medical tests were got done by the doctors of the hospitals on the panel of OPs company. The complainant also underwent ultra-sound test and after all the tests, the policy in question was issued by Op no.1. The above said averments of the complainant has not been rebutted by the Op No.1 in reply and affidavit filed by it.  Therefore, the OPs have failed to prove that the complainant was suffering from pre-existing disease at the time of issuance of the policy in question.

12.                        In view of aforesaid discussion, we are of the opinion that the complainant has been able to prove deficiency on the part of Op No.1 in rendering service to him. The repudiation of the insurance claim of the complainant by OPs is not in accordance with the terms and conditions of the policy and as such the same is set aside. Accordingly the present complaint is allowed and Op No.1 is directed for making a payment of Rs.3,00,000/- (Rs.Three lakhs only) along-with an interest @ 9% per annum from the date of filing of the present complaint till its realization. The Op No.1 is further directed for making a payment of Rs.2000/- (Rs.Two thousand only) to the complainant as litigation charges.  No deficiency is proved against OP no. 3.  The OP no. 1 is further directed to make compliance of the present order within a period of 45 days, failing which the above said amount will carry an interest @ 12% per annum for the default period.  Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

Announced in open Forum.                                                   Dated:19.06.2018

                 President                                                              (M.K.Khurana)                                         

  Distt. Consumer Disputes                                                    Member

   Redressal Forum, Fatehabad.