Jammu and Kashmir

Jammu

CC/455/2017

NP KOTWAL - Complainant(s)

Versus

STAR HEALTH INSURANCE - Opp.Party(s)

MOHIT KUMAR

21 Nov 2018

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.                162/DFJ         

 Date of  Institution      17-08-2017

 Date of Decision      :   05-11-2018

 

Sh.N.P.Kotwal,

S/O Late Sh.Janki Nath Kotwal,

R/O H.No.280 Lane No.3,

Adarash Enclave,Trikuta Nagar,

Jammu.

                                                                                                                                                                Complainant

                     V/S

1.Star Health & Allied Insurance Company Ltd.

Through its Managing Director,1,New Tank Street,

Valluvar Kottam High Road,Nungambakkam

Chennai-600034.

2. Star Health & Allied Insurance Company Ltd.

   Through its Branch Manager Branch Office at

   South Block,Bahu Plaza,Jammu.

                                                                                                                                                                Opposite parties

CORAM:

                  Khalil Choudhary             (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

Mr.Mohit Kumar,Advocate for complainant present,

Mr. Baldev Singh Advocate,for OPs,present.

 

                                                                          ORDER

                               Facts necessary for the disposal of complaint in hand are that complainant is a senior citizen and practicing advocate in J&K High Court,Jammu,on the representation of the agent of OP,complainant obtained a Senior Citizen Red Carpet Health Insurance Policy No.P/220000/01/2017/000109 on payment of premium of Rs.25,763/- for the period ranging from 31-05-2006 to 30-05-2007.Complainant submits that at the time of obtaining the said policy, he has disclosed that he has undergone a thigh surgery and is also a patient of diabetes and hypertension and it was specifically mentioned in the policy that diabetes mellitus and its complications will be covered under the policy. That the policy worked for the entire one year upto midnight of 30-05-2017 without any serious complication arising out of he above said diabetes mellitus and its complications. The policy was renewed by the OP w.e.f.31-05-2017 to 30-05-2018 and the premium was accordingly paid vide Policy No.P/220000/01/2018/000389 for a claim of Rs.10,000,00/-and the said policy is cashless and the OP has to make payment to the hospital for the expenses incurred by the complainant for his treatment. That because of the diabetes, complainant developed kidney problem and had to undergo hemo-dialysis w.e.f.September, 2016,when it was discovered that because of the diabetes complication in kindly has developed. Complainant further submitted that he after having undergone treatment at SMVD Narayana Multispecialty Hospital,,Kakriyal Katra informed OP that he is undergoing dialysis for the last ten months and the information form of the OP was filled by the doctor and it was specifically mentioned by him that the treatment is going for the last 10 months. Allegation of complainant is that the OP had eaten the premium for two years amounting to more than Rs.50,000/-tampered the form by making it from one year to two years and refused to make payment and the OP wrote a letter without any date informing the complainant that the policy of the complainant will be cancelled w.e.f.03/08/2017 taking a shelter under clause 11 of the policy. Further allegation of complainant is that OP is guilty of deficiency in service and has unilaterally cancelled the policy on flimsy ground which is not available to OP,hence complaint in hand, In the final analysis, complainant prays for reimbursement of medical expenses incurred by him on his treatment during policy period  and in addition complainant also prays for compensation and litigation charges to the tune of Rs.4.00 lacs,respectively.

           On the other hand,OPs filed written version and resisted the complaint on the ground that there is procedure, as well as, on good faith the policy is issued on the basis of Proposal Form which is to be filled up by the person by himself or through his agent wherein the status of that man has to be disclosed as well old health record, present health of the person which include details of his ailments/sickness and on the basis of such information as provided in the proposal form, the policy is issued. That it is the duty of both parties to disclose all relevant facts before entering into the contract. It is fundamental principles of insurance law that good faith must be observed by contracting party and insured has a duty to disclose and similarly it is the duty of the insurance company to disclose all material facts. That the claimant while submitting the proposal form has concealed many things and it is settled law that when a policy is taken on concealment of material facts,which includes the past/old medical history of the person, the company is not liable to compensate the insured and the policy taken on the concealment of material facts shall be void and abnitio and the company is entitled to cancel the policy and has a right to repudiate the claim. That in the present case, complainant while submitting the Proposal Form while taking Senior Citizen Policy from the OP has concealed the fact that he suffered from Chronic kidney Disease. He knew fully well that under the policy such risk is declined. Had this fact disclosed in the Proposal Form by the complainant, the policy may have not been issued simply on the reason that such disease is not covered under the policy and moreover as stated above the person who is interested in taking the policy has to disclose all the pre-existing disease in the Proposal Form which has not been done in the present case. That the complainant has not enclosed the copy of policy alongwith its terms and conditions with deliberate intentions as by its production, the complaint of the complainant will not stand. The complainant is directed to product the insurance policy alongwith terms and conditions before proceeding in the  case.That as per Pre authorization request form submitted with Shri Mata Vaishno Devi Narayna by the insured for cashless treatment on,21-06-2017,the insured has disclosed therein Chronic Kidney Disease since last two years back, but as submitted above this fact has been concealed by the insured in the Proposal Form which was filled by him at the time of taking the policy. That under Condition No.9 of the policy, if there is any misrepresentation/non-disclosure of material facts whether by the insured person or any of the authorized person, the company is not liable to compensate the insured, hence as in the present case, the insured has not disclosed the past ailments suffered buy him in the proposal form, hence his claim has been repudiated and is communicated to the insured vide letter dated 20-06-2017 which has not been assailed. Rest of the contents of complaint are denied.

            Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Akash Kotwal.Complainant has placed on record copy of Insurance Policy,copy of premium certificate

                   On the other hand,OPs adduced evidence by way of duly sworn evidence affidavit of  N.Gopalan,Chief Manager of Star Health and Allied Insurance Company Ltd.OPs have placed on record copy of proposal form, copy of policy schedule, copy of nominee details, copy of insurance policy, copy of terms and conditions of policy and copy of letter issued by OP .

                  We have perused case file and heard L/Cs appearing for parties at length.

                     After hearing L/Cs for parties at length and perusing the case file, in our opinion, point for consideration is, as to whether or not Ops are justified in declining benefit of reimbursement of expenses incurred on the treatment of complainant.

                       In order to prove his contention, complainant adduced evidence in the shape of his own duly sworn affidavit and also filed evidence affidavit of Akash Kotwal. The deposition of complainant and his witnesses are verbatim reproduction of averments of complainant,therefore,need not to be reiterated again.OPs have also lead evidence in the shape of affidavit of N.Gopalan Chief Manager, Star Health and Allied Insurance Company Ltd.,the deposition of witness of Ops is also verbatim reproduction of defence raised by the Ops in its written version,therefore,same need no repetition.

                         According to complainant at the time of taking of Health Insurance Policy, he was made to believe that in the event of medical treatment, during currency of Insurance Policy, he would be fully reimbursed. We have no doubt in our mind that complainant has been induced to enter into a contract by the reason of suppression of material fact,otherwise,complainant might have not entered into contract if correct facts being made known to him. It is settled preposition of law that no one will be allowed to take advantage of his own wrong, especially while entering into a contract of insurance, which is of utmost good faith. Since the complainant has proved to the satisfaction of Forum that before entering into contract of insurance, he was made to believe that entire sum incurred on the treatment would be reimbursed,therefore,complainant entered into contract of insurance on the promise that entire sum shall be reimbursed, as such, at this stage insurer cannot taken refuge under the terms and conditions of policy, which were not  made known to complainant at the time of entering into the contract of insurance.

                     It is to be noted that the case of the complainant is also strengthened by the Policy Schedule, wherein it has been specifically mentioned “Details of Pre Existing Diseases relating to the above person: All complications directly or indirectly related to THIGH INJURY Diabetes Mellitus and its complications”

                       Ops are undoubtly performing their statutory duty in carrying out the business of insurance,therefore,is not expected to interpret the contractual clause to the prejudice of insured with a view to get benefit from the premium received for a particular period. Once terms and conditions of Mediclaim Policy, itself provides for renewal and exclusion of pre-existing disease, when for the first time cover incepts is obtained, in that event insurer cannot avoid benefit to the insured for the second term, when insurance policy is renewed after accepting premium, by treating same as new/fresh policy.

               It is admitted case of the parties that complainant underwent treatment at SMVD Narayana Multispecialty Hospital,Katra, during currency of policy and according to complainant he incurred expenses to the tune of Rs.2,02,524/-Complainant has placed on record bills/vouchers issued by SMVD Narayana Multispecialty Hospital,Katra , which are not disputed by OP.

               It is also relevant to note that expenses incurred on pre-existing disease are only excluded, when the insurance is obtained for the first time, but once same is renewed without interruption, then insured becomes entitled to reimburse such expenses, incurred during subsequent period, if insurance is renewed without break.However,it is to be further noted that complainant stated in para 3 of complaint that even insurance policy is renewed for the year 2017-2018,which is also not denied by OPs.

                Under these circumstances, we hold that the repudiation of claim for reimbursement by the insurer, is totally arbitrary, unreasonable and as a state agency, it has to set standards of model behaviour,to the contrary its attitude has displayed a contrary tendency.

                       After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumer as per the purport of section 2(d) of Consumer Protection Act and Ops are the service providers having failed in their statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumer. The consumers have to come forth and seek for redressal of his grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                      Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and opposite parties are directed to pay to the complainant an amount of Rs.2,02,524/- alongwith interest @ 6% per annum w.e.f. 02-08-2017 (i.e. from the date of filing of this complaint)till its payment. The complainant is entitled to compensation of Rs.15000/-for causing mental agony and harassment. The complainant is also entitled to litigation charges of Rs.10,000/-.The opposite parties shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                   President

05 -11-2018                                        District Consumer Forum

Agreed by                                                     Jammu.                                                                                                                                  

                                                                      

Ms.Vijay Angral          

Member                                                                                                                                

 

Mr.Ghulam Sarwar Chauhan

Member