Punjab

Ludhiana

CC/14/879

Jameet Singh - Complainant(s)

Versus

Star Health & Allied Ins.Co.Ltd - Opp.Party(s)

01 Feb 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 879 of 24.12.2014

Date of Decision            :   01.02.2016

 

Jameet Singh son of S.Sher Singh, resident of 525, Urban Estate, Phase-I, Dugri, Ludhiana.

….. Complainant

Versus

1.Star Health and Allied Insurance Company Limited, Registered and Corporate Office No.I, New Tank Road, Valluvar Kottam High Road, Nungambakkam, Chennai 600034 through its General Manager.

2.Star Health and Allied Insurance Company Limited, Branch Office 2716, Ist Floor, Gagan Complex, Backside Majestic Park Plaza Hotel, Gurdev Nagar, Pakhowal Road, Ludhiana-141001 through its Branch Manager.

3Sapna Lakhanpal c/o Star Health and Allied Insurance Company Limited, Branch Office 2716, Ist Floor, Gagan Complex, Backside Majestic Park Plaza Hotel, Gurdev Nagar, Pakhowal Road, Ludhiana-141001.

…Opposite parties

 

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

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :           Sh.Prabhjot Singh Sachdeva, Advocate.

For OP1 and OP2          :           Sh.Rajeev Abhi, Advocate

For OP3                         :           Complaint already dismissed as withdrawn vide 

  order dated 27.04.2015.

 

PER G.K DHIR, PRESIDENT

 

1.                          Sh.Jameet Singh filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act”) against OPs, by claiming that on inducement by  OP3, an  employee of OP1  and  Op2, he obtained             Senior Citizen Red Carpet Insurance Policy bearing No.P/161114.01/2012/003463 with validity from 27.9.2011 to 26.9.2012. Op3 represented at that time as if OP1 and OP2 have special and attractive insurance policy for Senior Citizens. The said policy was renewed for the period from 27.9.2012 to 26.9.2013 vide receipt No.1116003918 and again from 28.9.2013 to 27.9.2014 vide receipt No.1116005225. At the time of purchase of the policies, the complainant informed OP3 that in the year 2009, he (complainant) had undertaken some treatment of chest pain and shortness of breath, but the same was cured through medicines. OP3 assured the complainant that said problem was a minor and same had not occurred immediately 12 months from the date of purchase of the policies. OP3 obtained signatures of complainant on number of papers without informing the contents of the same. Complainant was assured of providing services as per need. On 30.7.2014, the complainant was admitted in Satguru Partap Singh Apollo Hospital, Ludhiana for sudden disease of severe calcific triple vessel coronary artery, Recent MI LVEF-30%, H/o CVA (+) and cordial surgery was performed. Complainant was discharged on 13.8.2014. Due intimation was given to OPs qua this admission. A sum of Rs.3,09,526/- in all including medical expenses were paid to the hospital. Thereafter, complainant lodged the claim for reimbursement along with relevant papers, but the same was repudiated vide letter dated 18.09.2014 on flimsy grounds. That repudiation alleged to be illegal, arbitrary and malafide as well as violatiove of principles of natural justice. Complainant had been getting the aforesaid medi-claim policies continuously since from 27.8.2011 and he faced the problem qua which he got treatment just 4 days prior to his admission in the Apollo Hospital. The discharge summary of 2009 and 2014 clearly indicates that there was no history of any heart disease or any other serious symptoms. At the time of issue of insurance policies, OP had got the medical examination of the complainant conducted and the complainant disclosed all the facts about his health to the OPs. So, Ops are stopped by their act and conduct from repudiating the claim. By pleading deficiency in service and unfair trade practice on the part of OPs, directions sought to Ops to pay a sum of Rs.2 lac with interest @18% p.a. from the date of lodging of claim till realization. Even compensation of Rs.2,50,000/- on account of mental pain and agony and litigation expenses of Rs.21,000/- also claimed.

2.                          In joint written reply submitted by OP1 and OP2, it is pleaded interalia as if the complaint is not maintainable because repudiation of the claim was as per condition No.7 of the policy and there was suppression of material facts by the complainant qua the previous ailment; complainant is estopped by his own act and conduct from filing the present complaint;complicated questions of law and facts requiring elaborate evidence are involved, due to which, the matter falls in the jurisdiction of Civil Court; complaint alleged to be bad due to mis-joinder of OP3 because the same is neither a necessary party nor a proper party. Admittedly, complainant obtained Senior Citizen Red Carpet Insurance Policy for insured sum of Rs.2 lac for the period from 27.9.2011 to 26.9.2012, then from 27.9.2012 to 26.9.2013 and again from 28.9.2013 to 27.9.2014. As per condition No.7 of the policy, if there is any misrepresentation/non-disclosure of material facts whethere by the insured person or any other person acting on his behalf then the OP is not liable to make any payment in respect of any claim. Claim was presented under the 3^rd year of the policy whereas inception took place w.e.f.27.9.2011. Admittedly, complainant submitted the documents for reimbursement of the medical expenses incurred on his treatment from 30.7.2014 to 13.8.2014. On receipt of the preauthorization request form from the treating hospital i.e. SPS Apollo Hospital, Ludhiana, OPs observed that the complainant had CAD-double vessel disease since from 2009, but the same was not disclosed at the time of inception of the policy. It is claimed that the said ailment was pre-existing disease, due to which, Ops denied the cashless authorization and the said decision was communicated to treating hospital as well as to the complainant vide letter dated 1.8.2014. However, the complainant sent claim form to the OPs and thereafter, the same after being due processed, was duly repudiated by observing that discharge summary dated 30.7.2014 states as if the complainant is a known case of triple vessel coronary artery disease, hypertension, on regular treatment and has undergone treatment for CABG. Even the discharge summary for the period from 16.1.2009 to 19.1.2009 shows that the complainant was diagnosed as a hypertension, coronary artery disease, rest angina, atrial fibrillation fast ventricular respiration and CAG double vessel disease case. The MRI report dated 16.4.2011 shows generalized cerebral atrophy with multifocal confluent and discrete T2/Flair hyperintensities in bilateral periventricular white matter and centrum semiovale. Even it was found through that report that there was prominent Virchow robin spaces in bilateral gangliocapsular location with few small areas of lacunar infracts in basal ganglia, left thalamus and pones. The overall features were consistent with neurodegenerative disorder. Report of MRI indicated that the complainant was symptomatic prior to the inception of the policy. However, the complainant did not disclose these ailments in the submitted proposal form with the OPs and that amounts to mis-representation/non disclosure of the material facts. Each and every other averment of the complaint denied by claiming that there is no deficiency in service or negligence on the part of OPs and prayer made for dismissal of the complaint with costs.

3.                Complaint against OP3 has already been dismissed as withdrawn.

4.                Complainant to prove his case tendered his affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and thereafter, despite granting last opportunity subject to payment of Rs.200/- as costs, complainant failed to adduce his evidence and evidence of complainant was closed by order dated 23.07.2015.

5.                On the other hand, counsel for OP1 and OP2 tendered in evidence affidavit Ex.RA of Sh.Rajnish Kohli, Assistant Vice President, claims of Star Health and Allied Insurance and even tendered documents Ex.R1 to Ex.R14 and thereafter, closed the evidence.

6.                          Written arguments submitted by the OP1 and OP2, but not by the complainant. Oral arguments by counsel for the complainant and Op1 and OP2 addressed and were heard. Records gone through minutely. 

7.                Ex.C1=Ex.R1 is the letter of repudiation of claim. That repudiation of claim took place after finding that at the time of inception of the policy from 27.9.2011 to 26.09.2012, complainant did not disclose about the medical history of his being a case of hypertension, rest angina, double vessel disease, AF with fast ventricular rate. Through that letter, it was also observed that there is evidence of CABG in the MRI Scan report dated 16.4.2011, which shows few small area of lacunar infract in basal ganglion, left thalamus and pones. That repudiation of the claim was done in view of condition no.7 of the policy, which provides that if there is any mis-representation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, then the insurance company is not liable to make any payment in respect of any claim.

8.                Counsel for complainant vehemently contends that diagnosis of hypertension, coronary artery disease, rest angina, Atrial fibrillation fast ventricular respiration and CAG-double vessel disease was found during admission of the complainant from 16.1.2009 to 19.1.2009 through Ex.C6 and as such, the said disease was suffered by the complainant for two years prior to the inception of the policy which admittedly was effective from 27.9.2011. Further as per counsel for the complainant, contents of Ex.C6 discloses that the complainant presented with history of chest pain at rest and shortness of breath and as such, the reported ailment through Ex.C6 was suffered more than 2 years prior to the inception of the policy. As   disease  was suffered 12 months from the date of inception of the first policy and as such in view of condition no.1 and 2 of Ex.C5, it is vehemently contended that repudiation of the claim is illegal and arbitrary, particularly when the policy has been renewed by the complainant for 3 years of duration continuously. After going through the condition no.1 mentioned in Ex.C5, it is made out that pre-existing disease is suffered by the insured person, for which, treatment or advise was recommended or received during the period of 12 months immediately preceding from the date of inception of the first policy with insurer. Besides as per condition no.2 of Ex.C5, in case, the insured suffered disease during first 30 days from the commencement date of the policy, then his claim will fall in the exclusionary clauses. However, the disease for which treatment got by the complainant, was detected during treatment in Satguru Partap Singh Apollo Hospital, Ludhiana from 30.7.2014 onwards and as such, it is contended that exclusionary clause contained in item no.2 of Ex.C5 is not applicable. Even if that be the position, despite that repudiation of claim is not because of sufferance of pre-existing disease, but the same is as per condition no.7 of the policy, which exonerates the insurer from liability, if any mis-representation or non-disclosure of the material facts by the insured or any other person acting on his behalf found. So, we have to go through the contents of proposal form submitted by the complainant at the time of purchase of the first policy with validity from 27.9.2011 to 26.9.2012.

9.                Proposal Forms Ex.R7 and Ex.R8 submitted by the complainant at the time of purchase of  the  policies  bears  his signatures shows and same as if the complainant did not suffer from any of the diseases. Both in Ex.R7 and Ex.R8, it is mentioned that complainant has not suffered from Cancer, Chronic Kidney disease, CVA/brain stroke, Alzheimer disease and Parkinson’s disease. So virtually while submitting proposal form Ex.R8 on 26.9.2011 for obtaining of first policy with validity from 27.9.2011 to 26.9.2012, complainant disclosed as if he has no medical history for diseases/illness qua which he was hospitalized. The same facts were disclosed by the complainant while submitting proposal form Ex.R7 on 25.9.2013 for obtaining the insurance policy. These facts were disclosed in the proposal forms by the complainant, despite the fact that he was earlier diagnosed as a case of hypertension, coronary artery disease, rest angina, Atrial fibrillation fast ventricular respiration and CAG-double vessel disease, for which, he got treatment for the period from 16.1.2009 to 19.1.2009 as revealed by Ex.C6, the discharge summary of Satguru Partap Singh Apollo Hospital, Ludhiana. So certainly submissions advanced by counsel for the Ops has force that complainant suppressed the material facts of his ailment of heart disease and of hypertension, while submitting the proposal forms Ex.R7 and Ex.R8. Ex.R9 is the Renewal Notice, whereas Ex.R10 is the Consent Form submitted by the complainant for renewal of his policy, which expired on 26.9.2013. In view of suppression of these facts, the pre-authorization request for cashless treatment was denied through letter Ex.R11 of 1.8.2014. As problem of Angina was suffered by the complainant even during the period from 16.1.2009 to 19.1.2009 and as such, the said fact was within the knowledge of complainant at the time of submission of proposal forms Ex.R7 and Ex.R8 each, but despite that those facts were not disclosed and as such, there is deliberate suppression of material facts qua pre-existing disease of heart,             for which, the complainant got treatment during period from 30.7.2014 to 13.8.2014 as revealed by produced records of Ex.C7 and Ex.C8. Even if earlier complainant was discharged in satisfactory condition as revealed by discharge summary Ex.C6 for period from 16.1.2009 to 19.1.2009, but despite that he was advised CBAG showing as if he was having heart ailment even during January 2009. A person having heart ailment must disclose that fact while submitting the proposal form because contract of insurance is a contract of utmost faith. Ex.C6 and Ex.R3 are one and the same thing disclosing as if complainant was diagnosed for atrial fibrillation, fast ventricular respiration disease, due to which, he had undergone for coronary angiography during period from 16.1.2009 to 19.1.2009. On doing coronary angiography, it was found as if complainant was suffering from double vessel disease as per contents of these documents. That double vessel disease pertains to heart ailment and said material fact was concealed by the complainant while submitting the proposal forms Ex.R7 and Ex.R8.

10.              As per law laid down in case S.Bakirathan Marthandan vs. New India Assurance Company Limited-I(2007)CPJ-203(N.C.), repudiation of insurance claim is justified in case the produced evidence shows that complainant suffered from heart problem since from 1994 because the same being pre-existing disease not covered under the policy. Same is the position in the case before us. In case Ratanchand J.Shah (since deceased) vs. Oriental Insurance Company Limited-III(2009)CPJ-111(Gujarat State Consumer Disputes Redressal Commission, Ahmedabad), it was found that when material facts qua Angiography or conduct of by-pass surgery deliberately suppressed while filling the proposal form, then the repudiation of claim of insurance is proper. It was observed in the above cited case that contract of insurance is a contract of utmost good faith, due to which, the suppression of material facts on the part of complainant would prove fatal to his medical reimbursement claim. Even that repudiation of the claim was found justified in case of National Insurance Company Limited vs. Satya Pal Tuli-IV(2003)CPJ-98(N.C.). In this reported case, the complainant underwent cardiac catherisation and coronary arterigraphy, but those material facts of pre-existing heart disease were not disclosed while submitting the proposal form. In view of that it was found that the factum of heart problem was intentionally suppressed at the time of purchasing policy, due to which, repudiation of the claim is justified. In case, complainant suffers from diabetes, but the same not disclosed in circumstances that there was nexus between diabetes mellitus and heart attack, then repudiation of the claim is justified as per case of LIC of India and others vs.Smt.Shashi Bala-IV(2003)CPJ-91(N.C.). In the case before us also, the complainant was aware of factum of treatment of ailment of heart disease during period from 16.01.2009 to 19.01.2009, but those facts were suppressed while submitting proposal form as discussed above and the treatment, for which, this claim lodged has direct nexus with the earlier got treatment and as such, in view of suppression of the material facts, certainly repudiation of the claim is justified.

11.              Complainant has failed to prove that the medical history given by him at the time of submission of proposal form Ex. R7 and Ex. R8 was not in his knowledge. Rather both Ex. R7 and Ex. R8 bear the signatures of complainant in English language, in which, these proposal forms are filled and as such, it is not a case in which complainant was not aware of the contents of these proposal forms. So complainant himself misrepresented as if he earlier has not got treatment from any hospital. Mentioning of word ‘NIL” against each and every columns of medical history in Ex. R7 as well as in Ex. R8 itself reflects that complainant represented as if he was not earlier hospitalized and nor he suffered any disease or illness of the type in question. Even complainant has failed to prove that the discharge summary recorded in Ex. R2 is incorrect. When the history of discharge summary not shown to be wrongly recorded, then in view of non-disclosure of the pre-existing disease in the proposal form, repudiation of the claim is justified as per law laid down in Kulwant Singh Vs United India Insurance Co. Ltd. & another IV (2008) CPJ 196 (NC).  Suppression of material facts qua earlier disease in the particulars of the proposal form is sufficient for repudiating the claim,       as the law laid down in cases of Sapna Arora Vs Life Insurance Corporation of India & others 1(2009) CPJ 588 of Punjab State Consumer Disputes Redressal Commission, Chandigarh; Oriental Insurance Company Ltd. Vs Shanti Parshad Goyal & others 1(2013) CPJ 152 of Haryana State Consumer Disputes Redressal Commission, Panchkula; Diwan Suender Lal Vs Oriental Insurance Company Ltd. and others 1(2009) CPJ 117 (NC); Shakuntala Vs Life Insurance Corporation of India III(2014) CPJ 517 (NC). Ratio of all these cases is fully applicable to the facts of present case, particularly when the parties are bound by the terms of the contract of insurance policy and nothing can be added or subtracted by giving different meaning to the words mentioned in the insurance contract as per law laid down in Ind Swift Vs New India Assurance Co. Ltd. & others IV(2006) CPJ 148(NC); Usha Sharma & others Vs New India Assurance Co. Ltd. & others I(2012) CPJ 488(NC); United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal  IV(2004) CPJ 15(SC) and Deokar Exports Pvt. Ltd. Vs New India Assurance Company Ltd. I(2009) CPJ 6 (SC). As suppression of material fact was on the part of complainant while submitting proposal form and as such, he cannot take benefit of his own wrong because he is bound by the terms of Clause-7 of terms and conditions of the contract agreement.

12.              In case of Natiional Insurance Company Limited Vs Rajan Kumar & another IV(2011) CPJ 11 of Haryana State Consumer Disputes Redressal Commission, Panchkula, it was held that opinion of doctor is not sufficient for establishing the preexisting disease because insurance company has to prove that life assured was in full knowledge of disease having been suffered by him/her earlier.  That  knowledge  of  sufferance  of  disease of  heart  since from           2009 is proved by insurance company in this case before us as discussed in detail above.  In case of Parveen Damani Vs Oriental Insurance Co. Ltd. 2006(4) CPJ 189 (NC), it was found that there was no proof that the complainant had knowledge of preexisting disease, but the same is established before us as discussed in detail above and as such, benefit from ratio of above cited case cannot be availed by counsel for the complainant.

13.              As a sequel of above discussion, the complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules. 14.                  File be indexed and consigned to record room.

 

                   (Babita)               (Sat Paul Garg)                     (G.K. Dhir)

                    Member              Member                                 President

Announced in Open Forum.

Dated:01.02.2016. 

GurpreetSharma