BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 21 of 2016

Date of Institution: 11.01.2016

Date of Decision: 22.06.2016

Mr.Ashu Saxena son of Sh.Shashi Kumar Saxena, resident of House No. 67, Gokul Nagar, Majitha Road, Amritsar.  

Complainant

Versus

1. Star Health & Allied Insurance Company Limited, KRM Centre, VI Floor, No.2, Harrington Road, Chetpet, Chennai-600031 through its principal officer.
2. Star Health & Allied Insurance Company Limited, SCO 25, First Floor, Ranjit Avenue, District Shopping Complex, Amritsar-143001 through its principal officer.

Opposite Parties

Complaint under section 11 & 12 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Ms.Shikha Sanhotra, Advocate

              For the Opposite Parties: Sh. S.S.Salaria, Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Sh.Ashu Saxena has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that he obtained medi-claim policy from the Opposite Parties under the product name ‘Family Health Optima-New” bearing No.P/211111/01/ 2015/001440 for the period from 4.8.2014 to 3.8.2015. It is worthwhile to mention here that the complainant had earlier taken medical insurance policies from New India Assurance Company for the period from 2009-2010 to 2011-2012 and subsequently, taken the policy from Opposite Party from 4.8.2012 to 3.8.2013, then from 4.8.2013 to 3.8.2014 and then from 4.8.2014 to 3.8.2015 continuously, under portability which were renewed every year and the complainant had paid the premium amount for the same regularly to the Opposite Parties. At the time of obtaining the said policies from Opposite Parties under portability and on complete satisfaction of the Opposite Parties regarding health of the complainant, they had issued the policy in question in favour of the complainant under portability and no misrepresentation of any kind  was made by the complainant at the time of obtaining the said policy.  It is also worthwhile to mention here that under the terms and conditions and as per the policy decision of the Opposite Parties, they considered the insured person to be a fit person in respect of health upto the age of 45 years and as such, they did not get the medical check-up and examination of the insured person. At the time of issuing the policy in question under portability, the officials of the Opposite Parties told to the complainant that this policy will be running in continuation of the earlier policies taken by him from New India Assurance Company Limited from the initial date and that it shall not be considered as  new policy. The previous record of the complainant with New India Assurance Company Limited was also considered by Opposite Parties while issuing the policy under portability and due satisfaction was made on their part in all respects so far as the health condition of the complainant is concerned. The complainant having hired the services of the Opposite Parties for consideration, is a consumer as defined under the Consumer Protection Act and has a right to invoke the jurisdiction of this Forum for the redressal of his grievance.  During the validity period of the policy in question, the complainant suffered bye-related problem and had undergone right-eye keratoplasty for macular cornel dystrophy with the diagnosis macular corneal dystrophy RE from Narayana Nethralaya-3, Bangalore and had spent an amount of Rs.84,912/- on his treatment and paid the same out of his pocket to the hospital authorities against the bills issued to him. Accordingly, the complainant lodged his claim of the policy in question with Opposite Parties and requested them to make the payment of the insured amount to him, but they have illegally, malafidely and arbitrarily repudiated the claim of the complainant vide letter dated 12.9.2015 on flimsy grounds “that at the time of portability, he had not disclosed the above mentioned medical history health details of the insured person in the proposal form and  other documents which amounts to misrepresentation/ non-disclosure of material facts and malafidely opined in their said letter dated 12.9.2015 that the company is not liable to make any payment in respect of any claim.  In fact, there is no misrepresentation on the part of the complainant because he had been obtaining such policy continuously for the last so many ears previous from New India Assurance Company Limited and then from the Opposite Parties under portability. The alleged opinion of the medical team is totally wrong, unjust, malafide and arbitrary against the terms of the policy and principle of natural justice and it has no value in the eyes of law nor it can be termed as the final decision in order to repudiate the claim of the complainant. The complainant has sought the following  reliefs vide instant complaint:-

a)       Opposite Parties may be directed to make the full amount of the insurance claim amount in respect of the policy in question to the complainant alongwith interest and other benefits accrued to it.

b)      To pay the compensation of Rs.50,000/- to the complainant for suffering mental pain, agony, harassment and inconvenience due to deficiency in service on their part.

c)       Costs of the proceedings.

d)      Any other relief to which he is found entitled to under law and equity.

Hence, this complaint.

2.       Upon notice, Opposite Parties appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the present complaint is not legally maintainable; that the complainant has not come to this Forum with clean hands and suppressed the true and material facts from this Forum, as such, he is not entitled to any relief as claimed for; that the complainant is estopped by his own act and conduct from filing the present complaint; that the complainant has got no cause of action to file the present complaint; that the preamble of the policy clear 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 herein, 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 Hospitalisation expenses for medical/ surgical treatment at any Nursing Home/ Hospital in India as herein defined as on impatient 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 upto the limits indicated”; that the company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured per family mentioned in the schedule; that in case any act done against terms and conditions of the policy and due to contravention of terms and conditions of the policy, the Opposite Party is not liable for any claim; that it is important to mention that the complainant obtained health insurance policy firstly three policies from New India Assurance Company Limited from 4.8.2009 to 3.8.2012 and then under portability, he obtained Family Health Optima Insurance Policy from the Opposite Parties from 4.8.2012 onwards. It is stated that the claim of the complainant is in second year of the policy. The complainant filed claim for reimbursement of medical expenses for the treatment of macular corneal dystrophy right eye at Narayana Nethralaya-3, Bangalore on 2.7.2015. On scrutiny of the claim records, it is observed that the insured patient is symptomatic of corneal dystrophy prior to the policy. The insured patient has earlier taken medical insurance policies from New India Assurance Company Limited for the period from 2009-2010 and subsequently taken the policy from the replying Opposite Parties from 4.8.2012 to 3.8.2013 under portability and subsequently renewed the policies with the replying Opposite Parties. As per specialist opinion, the patient had undergone RE Intralase enabled keratoplasty for Mascular dystrophy. This is an autosomal recessive condition causing glare and decreased vision in young adult life. It usually manifests in Ist and 2^nd decade of life, which can be seen in Wills Eye Manual. Thus, at the time of portability, the complainant/ insured patient did not disclose the above mentioned medical history/ health details of the insured person in the proposal form and other documents, which amounts to misrepresentation and non disclosure of material facts. Thus, as per  condition No. 7 of the policy, if there is any misrepresentation/ non disclosure of material facts, whether by the insured person or any other person, acting on his behalf, the replying Opposite Parties are not liable to make any payment in respect of any claim and in this regard, repudiation letter dated 12.9.2015 was duly served upon the complainant which is self explanatory. The copies of proposal form, discharge summary, terms and conditions of the policy, specialist opinion, repudiation letter etc. are enclosed herewith. As such, the claim of the complainant is not payable and the same is rightly repudiated and intimation regarding this was given to the complainant as detailed above. On merits, facts narrated in the complaint have been specifically denied and a prayer for the dismissal of the complaint with costs was made.                       

3.       In his bid  to prove the case, complainant tendered into evidence his duly sworn affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copies of insurance policies Ex.C1 to Ex.C4, copy of claim form A Ex.C5, copyof bill Ex.C6, copyof analysis report Ex.C7, copy of CAEMR summary Ex.C8, copy of replyof notice Ex.C9, copy of proposal form Ex.C10, copy of first reminder Ex.C11, copy of repudiation letter Ex.C12, copy of legal notice Ex.C13, copy of postal receipt Ex.C14 and  closed his evidence.

4.       To rebut the evidence of the complainant, Opposite Parties tendered into evidence the affidavit of Rajnish Kohli, Assistant Vice President Ex.OP1,2/1, terms and condition of the policy Ex.OP1,2/2, proposal form Ex.OP1/2/3, copy of portability form Ex.Op1,2/4, copy of policy schedule of New India Assurance Company Limited Ex.OP1.2/5, copy of duplicate schedule of New India Assurance Company Limited Ex.Op1,2/6, copy of policy schedule of Star Health Ex.OP1,2/7, copy of policy schedule Ex.Op1,2/8, copy of policy schedule Ex.Op1,2/9, copy of claim form Ex.OP1,2/10, copy of patient EMR summary Ex.Op1,2/11, copy of discharge summary Ex.Op1,2/12, copy of certificate issued by doctor Ex.OP1,2/13, copy of letter dated 9.9.2015 Ex.OP1,2/14, copy of letter of repudiation of claim Ex.Op1,2/15, copy of reimbursement approved Ex.Op1,2/16 and closed the evidence.    

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       From the oral and documentary evidence on record, ld.counsel for the Opposite Parties has vehemently contended that there is no dispute that the complainant was earlier insured with New India Assurance Company Limited w.e.f. 2009-2012. Under portability, the complainant obtained policy in dispute from the Opposite Parties vide policy  No.P/211111/01/ 2015/001440 which has been continuously renewed from time to time and is valid uptil 3.8.2015. Ld.counsel for the Opposite Parties has further contended that the claim of the complainant has rightly been rejected on account of the fact that the complainant obtained the treatment of his right eye on an earlier occasion, but said fact has not been disclosed by the complainant at the time of obtaining the policy from the Opposite Parties which amounts to misrepresentation and non disclosure of material facts, on the part of the complainant. Copy of proposal form accounts for Ex.C10.  The claim of the complainant is rejected under section 7 of the policy which reads as under:

“If there is any misrepresentation/ non disclosure of material facts, whether by the insured person or any other person, acting on his behalf, the replying Opposite Parties are not liable to make any payment in respect of any claim”

The complainant has failed to prove his case and has concealed the material information. Reliance in this connection has been placed on: Satwant Kaur Sandhu Vs. New India Assurance Company Limited 2009(4) CLT 398 (SC) wherein it is held that it is admitted case of the parties that the husband of the complainant died on 7.11.2004 but the consumer complaint was filed after seven years. The petitioner has tried to explain this delay by making a bald allegation that she had no knowledge about the insurance policy of her late husband and this fact came to her knowledge in February, 2010. We are not inclined to accept this explanation particularly when the exact date on which the petitioner came to know about insurance policy is not mentioned. Thus, the order of the state Commission even on the point of limitation can not be faulted, wherein it is alleged that it is clear that insured had undergone surgery for removal of his gall bladder in December, 2003 prior to the submission of proposal form in April, 2014 and the aforesaid fact was concealed from the respondent insurance company. The explanation of learned counsel for the petitioner that the insured signed the blank proposal form which was later on filled in by the insurance agent is not acceptable particularly when there is no cogent evidence to substantiate it. In view of the observation above, we find that the impugned order of the State Commission is based upon the settled law. Therefore, we find no reason to interfere with the order in exercise of revisional jurisdiction. Revision petition, is therefore, dismissed.  From the aforesaid discussion, ld.counsel for the Opposite Parties has vehemently contended that the claim of the complainant is baseless and the same has been rightly repudiated. Therefore, the instant complaint being false and frivolous is liable to be dismissed accordingly.

7.       But however, from the appreciation of the facts and circumstances of the case, it becomes evident that no misrepresentation of any kind was made by the complainant at the time of obtaining the insurance policy in dispute. Under the terms and conditions and as per the policy decision of the Opposite Parties, they considered the insured  to be a fit person in respect of health upto the age of 45 years and as such, they did not get the medical check up and medical examination  of the complainant. At the time of issuing the policy in question, under portability, the representatives/ officials of the Opposite Parties told the complainant that this policy will be running in condition of the earlier policies taken by him from New India Assurance Company Limited from the initial date and the same shall not be considered as a new policy. The previous record of the complainant with New India Assurance Company Limited  was also considered by the Opposite Parties while issuing the policy under portability and due satisfaction was made on their part in all respect. During the validity period of policy in question, the complainant suffered bye related problem and had undergone right eye keratoplasty for macular corneal dystrophy with the diagnosis macular corneal dystrophy RE from Narayana Nethralaya-3, Bangalore and spent an amount of Rs.84,912/- on his treatment and paid the same from his own pocket to the hospital authorities against various bills, copies of bills are Ex.C6 to Ex.C8. The complainant thereafter lodged the claim with Opposite Parties and requested them to make the payment of insured amount, but they had illegally, with malafide intention and arbitrarly repudiated the claim of the complainant vide letter dated 12.9.2015 on flimsy grounds “that at the time of portability he had not disclosed to the Opposite Parties about the past medical history of insured patient in the proposal form which amounts to non disclosure of material facts.”  Opposite Parties further raised objection that at the time of filing in the proposal form, the complainant has not disclosed about his past medical history which amounted to non disclosure of the material facts. Opposite Parties further raised objection that their medical team opined that the insured patient is symptomatic of corneal dystrophy prior to their policy. It is worthwhile to mention  over here that the complainant is regularly taking the medi claim policy since 2009 and he underwent right-eye keratoplasty for macular corneal dystrophy with the diagnosis macular corneal dystrophy in the year 2015. As per judgement passed by Hon’ble Punjab & Haryana High Court in case Iffco Tokio General Insurance Company Limited vs. Permanent lok Adalat (Public Utility Services, Gurgaon and Others, LPA No. 1537 of 2011(O& M), decided on 26.8.2011 it has been held  that the pre existing condition existed in the year 2002 which was five year prior to acquiring insurance policy-claim can not be denied.  In the present case the exclusion clause No.1 would not apply to the consumer because premium for three years stand already paid and claim cannot be deemed to be made in respect of the period of three years. Moreover, the precondition existed fin the year 2002, which was five years  prior to acquiring the insurance policy. This result  could be achieved if principle of interpretation known as ‘contra proferentem’ is applied. The application of these techniques mans that any ambiguity in a clause excluding liability should be construed against the proferens and in favour of the party against whom the clause is pleaded. (See chapter III, Control of Exclusion clauses in England and India By M.M.Kumar). Moreover, we find that the exclusion clause No.1 of the policy, as noticed in preceding para 2, on the basis of which the claim of respondent No.2 was declined, is unfair and unreasonable clause, which can not be acted upon by the Insurance Company. The instant appeal is, thus, devoid of merit and does not warrant admission. Dismissed. In the case in hand,  Opposite Parties have chosen to decline the claim of the complainant simply on account of the fact that the complainant had obtained treatment at an early age i.e. in the Ist or 2^nd decade of her life. Keeping in view the principle laid down in the judgement ‘supra’, the said disease cannot be said to be pre-existing & the same cannot be applied for repudiating the claim of the complainant. The complainant has placed on record the bills Ex.C6 to Ex.C8 and when calculated the amount it comes to Rs.84,912/- and the complainant is entitled to Rs.84,912/- alongwith interest @ 9% per annum from the date of filing of the complaint until  full and final recovery on the basis of medical claim. The costs of litigation are assessed at Rs.2,000/-. Opposite Parties are given one month’s time for complying with the order, failing which, the complainant shall be at liberty to invoke the indulgence of this Forum to recover the awarded amount.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 22.06.2016.                                                               (S.S.Panesar)                                                                                                                                                                                                           President

                                           (Anoop Sharma)     (Kulwant Kaur Bajwa)   

Member                         Member

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