DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 43 of 9.2.2018

                                      Decided on:           19.3.2021

Ushna Rani wife of Suresh Kumar age 53 years resident of H.No.117,Ganesh Nagar, Rajpura,Tehsil Rajpura District Patiala.

                                                                   …………...Complainant

                                      Versus

1. Star Health and Allied Insurance Company Ltd., having its Head Office at SCO 70, 2^nd Floor, Opp.Tata Indicom, New Leela Bhawan, Patiala through its authorized signatory.
2. Raminder Singh Kochar, Agent of Star Health and Allied Insurance Company Ltd. SCO 70, 2^nd Floor, Opp.Tata Indicom, New Leela Bhawan, Patiala

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Vinod Kumar Gulati, Member    

ARGUED BY

                                      Sh.Kuldeep Singh, counsel for complainant

                                      Sh.Munish Mittal, counsel for OP No.1.

                                      Complaint against OP No.2 has been withdrawn.

ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This is the complaint filed by Ushna Rani (hereinafter referred to as the complainant) against Star Health and allied Insurance Co. Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act.

Facts of the complaint

2. Briefly the case of the complainant is that in the year 2016 she alongwith her husband travelled to Melbourne, Australia for a period of 75 days and opted for Worldwide excluding USA and Canada-Plan C2 USD 250000, an insurance policy bearing No.P/211115/03/2017/000122 dated 29.11.2016, which was issued in the name of complainant on the payment of the premium of Rs.3427/-.No medical examination was got conducted by the OPs as she was having one health insurance  policy dated 20.5.2016.
3. It is averred that during the stay at Melbourne on 23.12.2016 at 9AM the complainant suffered headache and weakness of the right side of the body and was taken to Monash Hospital, where it was diagnosed that she was suffering from blood pressure fluctuation and other disease due to blood pressure. The complainant discharged from the said hospital on 24.12.2016.The hospital raised bill amounting to $1530 equivalent to Rs.80,000/- which was paid by the complainant. Again the complainant was taken to Monash hospital on 14.1.2017 for medical checkup. Thereafter on 13.2.2017 they came back to India and a week later they approached the OPs for reimbursement of the amount she spent i.e. $1174 on 23.12.2016, $1174 on 27.1.2017, $ 1174 on 13.2.2017 and $507 on 16.2.2017 but no response was given by the OPs. Thereafter she contacted OP No.2 and shocked on coming to know that OP No.1 has repudiated the claim on the basis of not disclosing the medical history prior to the issuance of said travel insurance policy. Complainant also got sent legal notice upon the OPs reply of which was sent by OP No.1 by taking false pleas and did not make the payment of the genuine claim. Thus the act and conduct of the OPs clearly amounts to deficiency in service which caused not only financial loss but also caused mental agony, stress and humiliation to the complainant. Hence this complaint with the prayer to accept the same by giving direction to the OPs to release the medical claim of Rs.3,32,540/- alongwith interest @18% per annum from the date of lodging of the claim and also to pay Rs.5,00,000/- as compensation for causing mental agony, physical harassment and also to pay Rs.22000/-as litigation expenses.

Written Statement

4. Notice of the complaint was given to OP No.1 who appeared through counsel and contested the complaint by filing written reply while complaint against OP No.2 has been withdrawn vide separate statement on 1.8.2018.

In the written statement filed by OP No.1, it has raised preliminary objections that the complaint is not maintainable; that the claim has been repudiated on the ground that the disease of patient is not covered under clause No.3(f) of the terms and conditions of the policy in question. It is further submitted that the OPs have issued the star travel protect insurance policy in question for the period from 1.12.2016 to 13.2.2017 in the name of the complainant for the sum insured of USD 250000. It is further submitted that at the time of inception of the policy the insured has not disclosed about his health status i.e. hypertension, diabetes mellitus, hypercholesterolemia and migraine in the proposal form and as such the claim was rejected and communicated to the insured on 5.4.2017.

5. On merits, it is admitted to the extent that the travel insurance policy was issued in the name of complainant. It is also admitted that husband of the complainant contacted the OP and intimated the claim. It is again submitted that the illness of the complainant is not covered under the terms and conditions of the policy as the same is pre-existing and do not fall under the ambit of the policy and the claim of the complainant has been rightly repudiated. There is no deficiency in service on the part of the OPs. After denying all other averments the OP No.1 has prayed for the dismissal of the complaint.
6.  
6. In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C32 and closed the evidence.
7. On the other hand, the ld. counsel for OP No.2 has tendered in evidence Ex.OPA affidavit of Rajiv Jain alongwith documents Exs.OP1 to OP5 and closed the evidence of the OP.
8.  
8. Both the contested parties have also filed the written arguments. We have gone through the same, heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
9. The ld. counsel for the complainant has argued that the complainant alongwith her husband were to travel to  Melbourne, for 75 days to spend holidays with their sons who are permanent residents of Australia and took the medical insurance policy from OP No.1 for 75 days on 29.11.2016 and premium of Rs.3427/-was paid. The ld. counsel further argued that only insurance policy was supplied to the complainant and no terms and conditions of the same were supplied even after repeated requests. The ld. counsel further argued that during the stay at Melbourne, on 23.12.2016 at 9AM, the complainant suffered headache and weakness of the right side of the body and immediately she was taken to Monash hospital where the complainant was got admitted and she was diagnosed with hypertension and some other disease. The ld. counsel further argued that after the occurrence the husband of the complainant contacted OP No.2 to inform the same and OP No.1 assured that expenses incurred on the treatment of the complainant will be reimbursed .The ld. counsel further argued that the complainant was admitted for more than 24 hours and she was discharged on 24.12.2016 and the hospital bill was 1530 Australian $.The ld. counsel further argued that the complainant was again taken to Monash Hospital on 14.1.2017 for medical checkup and complainant and her husband reached back to India on 13.2.2017.The ld. counsel further argued that the complainant had spent $1174 on 23.12.2016, $1174 on 27.1.2017, $1174 on 13.2.2017 and $507 on 16.2.2017 as ambulance charges. The ld. counsel further argued that after coming back to India the complainant submitted all the documents with OP No.1 but the claim was wrongly rejected. The ld. counsel has relied upon the citations Branch Manager State Health & Allied Insurance Co. Ltd. Vs. Umesh Badani & Ors. 2016(3) Law Heard (SC)2102, wherein it has been held that ;

“Repudiation of claim-Suppression of Facts-Alleged deficiency in service-Complaint filed-Allowed by State Commission and appellants and respondents No.3 were directed jointly and severally to pay claim, for his medical treatment”,

 Birla Sun Life Insurance Co. Ltd. Vs. Keshav Lal & others 2008(3) R.C.R.(Civil) 637, wherein it has been held;

“A. Insurance Act,1938, Section 45-Insurance Claim-Efforts are being made by the Insurance Company to raise false pleas to repudiate the claims-Insurance companies askedto be fair in dealings and not to cheat their clients not to repudiate claims by sticking to some hidden clauses while selling insurance policies-Insurance companies asked to simplify the various clauses, which should be made clear to the proposed insurer for him to decide if he would wish to buy such policies in terms of those conditions”,

 HDFC Ergo General Insurance Co. Ltd. Vs. Rachhal Singh 2013(1) C.P.J.644 In the said citation it has been held that ;

“A. Consumer Protection Act,1986 2(1)(g),14(1)(d) and 21(b) Life Insurance-By-pass surgery-Reimbursement of medical expenditure on surgery alleged suppression of pre-existing disease-Claim repudiated on that ground-complaint of deficiency in service of insurer-Held that the insurer was duty –bound to supply the terms and conditions of policy to the insured immediately after receipt of premium-Insurer failed to do so-Claim cannot be repudiated on the basis of terms and conditions of policy as to concealment of facts”,

Life Insurance Corporation of India & Anr. Versus Ashok Manocha 2011(3)C.P.J. 418, decided by the Hon’ble National Commission, New Delhi. In the same it has been held:  

“Consumer Protection Act, 1986 Sections 2(1)(g) and 21(b) Insurance (Life)- Suppression of material facts- Repudiation of Claim- Complaint allowed by Forum- Appeal- Dismissed-Revision- Plea thatinsuree suppressed material facts pertaining to his health-Not accepted-Petitioner did not prove medical certificate placed on record-Production of a document is different from proof of same-Petitioner to settle claim with interest”,

 Oriental Insurance Company Limited Vs. Rajinder Singh 2008(1) C.P.J.258, wherein it has been held by the Hon’ble State Commission, Chandigarh that

“Consumer Protection Act, 1986 2(1) (g) Mediclaim policy- Complainant admitted in hospital due to illness- Medical treatment- Challenged by appeal- Held, contention that complainant suffering from hypertension and renal problems not disclosed is not acceptable-No evidence on record to show that insured had knowledge of disease prior to taking of policy-Thus, complaint rightly allowed by Forum-Order upheld”,

Religare Health Insurance Company Ltd. Vs. Subhash Chander Aggarwal 2017(3) CLT 140, and in the same it has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh that

“Consumer Protection Act,1986 Sections 2(1) (g) and 15 Medical claim-Repudiation and cancellation of policy and refund on ground of concealment of pre-existing disease hypertension-Deficiencyin service- Complaint before District Forum allowed-Challenged-Whether Hypertension is a disease which is required to be referred in proposal form-hypertension is a common disease and it can be controlled by medication and it is not necessary that personsuffering from hypertension would always suffer a heart attack and repudiationon account of pre-existing disease was not justified-Therefore, ground thatcomplainant suffering from hypertension not corroborated on basis of evidence on record-Further , as per terms and conditions of policy, OPs failed to prove onrecord that complainant before taking policy was suffering from any pre-existing disease which was concealed by him at time of taking policy-Originallymediclaim policy taken by complainant from Star Health and Allied InsuranceCo. Ltd.-In year 2010 and he shifted to OPs in year 2013 on representation of representative of OPs-It was continuous policy-In year 2011 he had some problem of hypertension, it was after 2010 when mediclaim policy was taken for first time by complainant from Star Health and Allied Insurance Co. Ltd. and then shifted to OPs-Therefore, it is not a pre-existing disease-No material information was concealed by insured at time of taking policy”

and in the case of M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. 2000(100)Comp Cas 97,the Hon’ble Supreme Court of India has held that;

“Consumer Dispute-National Commission set aside the decision of State Commission in appeal- National Commission based its decision on the exclusion clause in contract and “New Plea” in appeal- Held, the exclusion clause was neither a part of the contract of insurance nor disclosed about the clause to appellant, respondent cannot claim benefit of exclusion clause-respondent pleaded before the State Commission that the property damaged was not covered under the insurance policy-This plea was given a go-bye before National Commission and a new plea taken up that terms and conditions of insurance policy were violated by the appellant by using used kiln furniture-Finding of National Commission not tenable in law-Appeal allowed”

10. On the other hand, the ld. counsel for OP No.1 has argued that claim was rejected under exclusion clause. The ld. counsel further argued that the said disease was never communicated to the insurance company at the time of taking the policy and fraud was played as such complaint be dismissed. The ld. counsel has relied upon the citation of the Hon’ble  Supreme Court of India passed in Satwant Kaur Sandhu Vs. New India Assurance Co.Ltd. 2009(9) JT 82.
11. To prove the case complainant Ushna Rani has tendered her affidavit, Ex.CA and she has deposed as per her complaint,Ex.C1 is the reply to the legal notice in which it is stated that the complainant was suffering from pre existing disease and amounts to non disclosure of material facts,Ex.C2 is the insurance policy of the Star Health from 1.12.2016 to 13.2.2017 covering 2.50.000 US $ and other amount is clearly mentioned in this policy,Ex.C3 is the bill of Monash hospital of Ushna Rani dated 23.12.2016 -24.12.2016 for 1530$, Exs.C4 and C5 are postal receipts,Ex.C6 is the bill of 13.1.2017 of Ambulance Victoria for $1174, Ex.C7 is bill, Ex.C8 is also bill of Monash hospital of 17.1.2017 for   993.20, Ex.C11 is repetition of bill of Ex.C8, Ex.C9 is bill of Ambulance Victoria dated 2.2.2017 of $507, Ex.C13 is bill of Ambulance Victoria dated 3.1.2017 for $1174,Ex.C15 is also bill of Monash Health dated 23.1.2017 for 560 and Exs.C20 to C22 are the prescriptions of Monash Health,Ex.C23 is the letter regarding the advice of Travel Insurance Company, Ex.C24 is Visa,Ex.C25 is invoice, Ex.C31 is Aadhar Card,Ex.C32 is legal notice.
12. On the other hand, on behalf of OP No.1 Sh.Rajiv Jain has tendered his affidavit, Ex.OPA and he has deposed as per the written statement, Ex.OP1 is the power of attorney, Ex.OP2 are the instructions of Star Health, Ex.OP3 is history of patient of Monash Hospital, Ex.OP4 is Star Health Proposal Form,Ex.OP5 is repudiation letter from star health dated 5.4.2017.
13. By going through all the documents on the file and the bills of treatment i.e. Ex.C3 for 1530$, C6 for 1174$, C8 for 993$,C9 for 507$,C13 for 1174$ and C15 for 560 $, it is proved that all these documents are within the period from 1.12.2016 to 13.2.2017.There is reply  Ex.C1 to legal notice by Star Health, in which it is mentioned that the complainant has taken Star Health Insurance policy  for the period from 1.12.2016 to 13.2.2017 covering Ushna Rani self for the sum assured of USD 250000.It is also admitted in the reply that the complainant was hospitalized at Monash Health Centre on 23.12.2016. It is mentioned that at the time of taking the policy, the complainant had not disclosed about the hypertension, diabetes and migraine and the claim was rejected on the ground of pre existing disease. The policy is Ex.C2 on the file and this policy is covering the period from 1.12.2016 to 13.2.2017 in which the sum assured is also mentioned and total premium of Rs.2427/-was paid.
14. As the OP No.1 has rejected the claim on the basis of the pre-existing disease but there is no evidence on the file produced by the OP No.1 that the complainant was suffering from these diseases at the time she was staying in India and the onus was upon the OP to prove that she was suffering from these problems prior to taking of insurance policy but they failed to do so. It has been clearly held by the Hon’ble National Commission in the case of Star Health Vs. Umesh Badani (supra) that repudiation of the claim regarding suppression of facts, the complaint was allowed by the Hon’ble National Commission. Similarly in the judgment cited above it has been held that suppression of fact is no ground to reject the claim. Moreover, there is no evidence on the file that insured was given all the terms and conditions of the Star Health Policy and it is on the file that only cover note was supplied. In the written statement, it is pleaded that the disease was under Exclusion Clause but it has been held by the Hon’ble Supreme Court of India in the case of M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. (supra) that where the exclusion clause was neither a part of the contract of insurance nor disclosed about the clause to appellant, respondent cannot claim benefit of exclusion clause. So in view of the judgment of the Hon’ble Supreme Court of India, the OP cannot take the benefit of the exclusion clause of the insurance policy.
15. So due to our above discussion the complaint stands partly allowed. In the complaint, the complainant has stated that she is entitled to Rs.5lakhs of damages but this is huge amount and cannot be granted to her. At the time when she was admitted in the hospital the rate of Australian dollar was 48.50. She spent in total 5938$ which comes to Rs.2,87,993/-. The OP No.1 is directed to pay the said amount of Rs.2,87,993/-alongwith interest @6% per annum from the date of repudiation i.e. 5.4.2017 till realization and also  to pay compensation of Rs.30,000/- and Rs.22000/-as litigation expenses. Compliance of the order be made by the OPs within a period of 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:19.3.2021       

                                               Vinod Kumar Gulati    Jasjit Singh Bhinder

                                                         Member                         President