FBEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
FATEHABAD.
Complaint Case No.: 256 of 2016.
Date of Institution: 03.10.2016
Date of order: 03.05.2017.
Gurmeet Singh son of Gurdayal Singh resident of Gali Shadi Ram Ghee Wali, Fatehabad Tehsil & District Fatehabad.
….. Complainant.
Versus
Star Health & Allied Insurance Company Limited Branch Office, SCO 149, IInd Floor, CUE-1 Red Square Market, Hisar (Haryana) 125001 through its Branch Manager.
….Opposite party.
Complaint U/s 12 of the Consumer Protection Act
BEFORE: Sh. Raghbir Singh,President.
Sh.R.S.Panghal,Member.
Smt. Ansuya Bishnoi,Member.
Present: Shri Jitender Thakkar, Advocate for the complainant.
Shri Sachdev Bishnoi, Advocate for the opposite party.
ORDER:
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter to be referred as OP).
2. Briefly stated the facts of the present complaint are that the complainant had obtained a Health Insurance Policy for himself and his family members vide policy No.P/211119/01/2016/001611 having validity from 21.08.2015 to 20.08.2016 from OP through its agent at Fatehabad and paid Rs.18,001/- qua premium of the policy in question. It has been further averred that earlier also the OP had issued a policy having validity from 21.08.2013 to 20.08.2014 to the complainant and had also received an amount of Rs.17396/- as premium of the policy. The policies have continued without any break or interruption. It has been further averred that son of the complainant namely Rohit fell ill and operation on his eye was conducted at Jindal Institute of Medical Sciences, Hisar and a sum of Rs.22,000/- were spent by the complainant on this treatment. The complainant submitted all the relevant documents including the bills issued by the hospital to the OP and also completed all the formalities but the OP instead of settling the claim of the complainant and making payment of insurance benefits wrongly and illegally repudiated the claim of the complainant vide letter dated 29.03.2016 under the pretext that complainant had concealed the material facts regarding non-disclosure of PED-Policy Cancellation and also sent demand draft of Rs.605/- regarding cancellation of policy of Rohit to the complainant. The repudiation of the claim by the OP is with a view to cause wrongful loss to the complainant which is clear cut deficiency in service on its part. Hence, this complaint. In evidence, the complainant has tendered his affidavit as Annexure C1, Annexure C2 to Annexure C23.
3. Upon notice, OP appeared through counsel and resisted the complaint by filing reply taking preliminary objections regarding cause of action, locus stand and maintainability etc. It has been submitted that son of the complainant namely Rohit was suffering from Down’s Syndrome which is a pre-existing disease and the complainant had concealed this fact at the time of obtaining the policy in question. The insured patient Rohit was having pre-existing disease and the complainant had obtained the policy No.P/211119/01/2014/000523 for the period from 21.08.2013 to 20.08.2014 and then P/21119/01/2015/000891 for the period from 21.08.2014 to 20.08.2015 and then P/211119/01/2016/001611 for the period from 21.08.2015 to 20.08.2016. It has been further submitted that Rohit was admitted in Eye-Q Super Specialty Eye Hospital on 16.02.2016 for the treatment of LE senile cataract and had also submitted pre authorization request for cashless surgery besides intimation qua claim No.CLI/2016/211119/0333520. Thereafter, in response to the said claim during enquiry it came to the notice of the OP that the insured patient was a known case of celiac disease, hypothyroidism and b/1 developmental cataract, therefore, cashless claim was denied on this ground and the same was communicated to the hospital and the insured vide letter dated 15.02.2016. The insured patient was again admitted in Jindal Institute of Medical Science, Hisar on 17.02.2016 for the treatment of N B/L Cataract and had also submitted claim for reimbursement of medical expenses vide claim No.CLI/2016/211119/0337595. At the time of inception of policy from 21.08.2013 to 20.08.2014 the complainant had not disclosed these facts to the OP which amounts to misrepresentation/non-disclosure of the material facts and as per Condition No.8 of the policy, if there is any mis-representation/non-disclosure of material fact then the company would not be liable to make any payment in respect of any claim. The claim of the complainant has rightly been repudiated vide letter dated 26.03.2016 and the policy qua the insured patient Rohit was cancelled from 31.03.2016 due to non-disclosure of material fact about pre-existing disease. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence the OP has tendered affidavit of Sh.P.C.Tripathy as Annexure R1 and documents Annexure R2 to Annexure R17.
4. We have heard learned counsel for the parties and have perused the case file carefully. In his arguments the counsel for the complainant has reiterated the submissions made in the complaint and further contended that as per Section 45 of Insurance Act, 1938 if a period of two years passed after obtaining insurance policy, the policy cannot be called in question on the ground of mis-statement or concealment of facts. He further argued that the policy No.P/211119/01/2014/000523 was obtained for the first time for the period from 21.08.2013 to 20.08.2014 and thereafter it remained continue from 21.08.2014 to 20.08.2015 and then for the period from 21.08.2015 to 20.08.2016 without any interruption and break therefore, provisions of Section 45 of Insurance Act, 1938 are applicable in the present case and in view of Section 45 of Insurance Act, 1938, the claim of the complainant cannot be repudiated by the OP in the present case on the ground of concealment of facts. In support of his contention the counsel has relied upon the judgment of Hon’ble National Commission titled as Devamma Vs. Life Insurance Corporation of India II (2014) CPJ 3 (NC). In support of his case the counsel for the complainant has also relied upon the judgment rendered by Hon’ble Rajasthan State Commission Rigid Global (India) Vs. IFFCO Tokio General Insurance Company Limited & Ors. II (2008) CPJ 365. On the other hand the counsel for the OPs rebutted the above said arguments of the counsel for the complainant and prayed for dismissal of the complaint.
5. We have considered the rival contentions of the parties. It is not disputed that Family Health Optima Insurance Policy was obtained by the complainant for himself and his family members including the insured patient Rohit for the first time having validity from 21.08.2013 to 20.08.2014 (Annexure R2) and thereafter the policy remained continue from 21.08.2014 to 20.08.2015 (Annexure R3) and further it remained valid from 21.08.2015 to 20.08.2016 (Annexure R4). It is not disputed that insured patient Rohit was hospitalized during the subsistence of the policy in question. The insurance company is required to prove with credible and cogent evidence to prove that the insured patient was suffering from pre-existing disease and had knowingly failed to disclose the same. Moreover, the OP ought to have made thorough inquiry/investigation or necessary medical health check up before issuing/renewal of policy. Without doing so, when they have issued the policy, now they cannot turn around after getting the premium for more than two years. All the inquiries, investigations and health checkup ought to have been made before issuance of the policy itself. It is a matter of common knowledge that in a majority of policies being issued by the Insurance Companies the same are routed through their agents. The agents in their anxiety to get their commission and the insurance companies in order to do more and more business see that the policies are issued the moment they received the premium amount. Even the insurance companies are not aware as to show is the proposer, what is his status or health condition. Here the intention is very clear that first they induce the people to purchase policies and later they start litigation. On this point reliance of case law titled as The Branch Manager, LIC of India & Others Vs. Pasupuleti Bhagya Luxmi & others. 2014 (4) CLT (APSCDRC). There is enough on the file to show that the complainant has been able to prove her case against the OPs and the present complaint deserves acceptance.
6. Thus, as a sequel to our above discussion, we accept the present complaint and direct the OP to pay the amount of Rs.22,000/- (spent by the complainant on account of treatment of insured-patient) to the complainant alongwith interest @ 6% per annum from the date of filing of present complaint till actual realization. So far as the prayer regarding continuation of the policy is concerned, the policy in question had already lapsed, therefore, it is open for the OP to consider as per terms and conditions whether the policy can remain continue or not. This order should be complied within a period of 30 days from the date of this order, failing which the complainant will be entitled to initiate legal proceedings under Section 25/27 of the Act against the opposite party. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum.
Dated: 03.05.2017.
(Raghbir Singh)
President
(R.S.Panghal) (Ansuya Bishnoi) Distt.Consumer Disputes
Member Member Redressal Forum, Fatehabad.
