Punjab

Ludhiana

CC/15/553

Rajinder Kaur - Complainant(s)

Versus

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

Ms.Preeti Adv.

06 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.553 of 17.09.2015

Date of Decision            :  06.07.2017

 

Rajinder Kaur wife of Shri Harpal Singh son of Shri Hira Singh, resident of House No.29, Dhande village Bijipur, Tehsil Samrala, District Ludhiana.

….. Complainant

Versus 

Star Health & Allied Insurance Company Limited, 2716, Ist Floor, Gagan Complex, Backside Majestic Park Plaza Hotel, Gurdev Nagar, Pakhowal Road, Ludhiana through its Manager/authorized person.

..…Opposite party

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER          

 

COUNSEL FOR THE PARTIES:

For complainant     :         Sh.Nitin Kapila, Advocate

For OP                   :         Sh.Rajeev Abhi, Advocate 

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant had been getting the insurance policies for covering the risk of ailments through her proposer Sh.Lakhwinder Singh from OP from time to time. These policies commenced w.e.f. 21.10.2010. These policies were renewed lastly through policy bearing No.P/161114/01/2013-003237 with validity period from 21.10.2012 to 20.10.2013. Complainant was hale and hearty at the time of getting these policies after payment of regular premiums. Complainant never suffered from any ailment and nor took any medicine earlier, but all of a sudden, she fell ill and had to be admitted in Dayanand Medical College & Hospital, Unit Hero DMC Heart Institute, Ludhiana(hereinafter in short referred to as ‘DMC & H, Ludhiana’) on 26.9.2013 and was discharged there from on 3.10.2013. An amount of Rs.1,61,761/- was spent on treatment and thereafter, for reimbursement of these medical expenses, claim was lodged with OP, who had repudiated the same vide letter dated 15.10.2014 without any sufficient reason. False plea regarding non-disclosure of material facts taken for repudiating the claim, despite the fact that there was no concealment of fact at any point of time. Complainant repeatedly requested OP to pay the claim amount as per the terms and conditions of the insurance policy, but Op has not paid any heed to these requests and as such, by pleading deficiency in service on the part of Ops and by claiming that they have adopted unfair trade practice, prayer made for directing OP to make payment of Rs.2 lac as claim amount and even pay Rs.50,000/- as compensation on account of mental pain, agony and harassment.

2.                           In written reply submitted by OP, it is pleaded interalia as if complaint barred in view of section 26 of the Consumer Protection Act (hereinafter in short referred to as ‘Act’); in view of condition no.7 of the policy, the complainant/proposer was required to disclose true facts, but those were not disclosed and as such, claim alleged to be rightly repudiated. Besides, it is claimed that the complainant estopped by her act and conduct from filing the complaint because she has not approached this Forum with clean hands. Suppression of material facts even alleged. In view of involvement of complicated question of law and facts requiring elaborate evidence, matter liable to be got decided from Civil Court of competent jurisdiction. Condition no.7 of the terms and conditions of the policy provides that company shall not be liable to make any payment under the policy in respect of any claim, if such claim is in any manner fraudulent or supported by any fraudulent means or device, mis-representation whether by the insured person or by any other person acting on his behalf. Admittedly, the complainant obtained Senior Citizens Red Carpet Policy bearing No.P/161114/01/2011/002654 with validity period from 21.10.2010 to 20.10.2011 and thereafter, she had been getting these policies renewed with validity from 21.10.2011 to 20.10.2012 and 21.10.2012 to 20.10.2013 respectively. Claim for reimbursement of medical expenses incurred on treatment of right hemiparesis and RHD with date of admission as 2.9.2013 was lodged by the complainant and the same was registered. Even complainant submitted claim for cashless approval for the expenses of treatment of right hemiparesis and RHD. Queries were raised as to the duration as to since when the complainant suffered from RHD. Complainant failed to send the required documents for processing of the cashless approval for incurred expenses on treatment and as such, claim could not be processed in view of condition no.5 of the terms and conditions of the policy. That condition no.5 provides that the insured shall obtain the bills, receipts and other documents upon which, a claim is based and thereafter will submit to the insurer such additional information and assistance as may be required by it or dealing with that claim. Complainant again submitted pre-authorization for cashless treatment with DMC & H, Ludhiana for RHD syncope old CVA with date of admission as 26.9.2013. That claim even was registered. As per discharge summary of the complainant, she was diagnosed as RHD-moderate MS-Moderate MR(EF=60%) chronic AF, old CVA, right hemiparesis(partially recovered syncope). That cashless authorization was denied because the complainant was having history of CVA in 2007 with RHD, but she did not disclose the same at the time of inception of the policy. Complainant even approached for reimbursement of expenses incurred for treatment of RHD syncope old CVA with date of admission as 26.9.2013, but date of discharge as 3.10.2013 from DMC & H, Ludhiana. During processing of the claim file, it was observed from the pre-authorization request form and field visit report pertaining to the claim No.0106248 that insured is a known case of rheumatic heart disease and CVA-right hemiparesis in 2007. Letter dated 4.9.2013 of doctors even mentions that the complainant was on anti platelet drugs and is a known case of rheumatic heart disease and CVA. Present claim is lodged for syncope and permanent pacemaker implantation was done and as such, ailment for which, claim submitted is a complication of pre existing heart disease. At the time of inception of the policy with effect 21.10.2010 to 20.10.2011, the complainant has not disclosed about above mentioned history and health details in the proposal form and same amounts to mis-representation/non-disclosure of material facts. So, virtually violation of clause 7 of terms and conditions of insurance policy committed by the complainant, despite the fact that insurance contract is a contract of utmost good faith. After scrutinizing the documents placed in the claim file and applying the mind, the officials of Op rightly repudiated the claim vide letter dated 15.10.2014 by keeping in view clause no.7 of the terms and condition of the insurance policy. There is no deficiency in service on the part of Op because repudiation is on account of mis-representation and non-disclosure of material facts. The policy in question issued in favour of complainant is governed by the limits of liability as per various clauses. Maximum quantum of liability under the terms of policy is Rs.75,076/-. Op has denied the cashless authorization regarding hospitalization at SPS Apollo Hospital on 2.9.2013. As per exclusion clause 5, the claims with regard to expenses for pre-existing diseases as defined will have the condition that 50% of the cost will be borne by the insured himself, but 30% cost will be borne in respect of the claim not related to the pre-existing diseases. Each and every other averment of the complaint denied by claiming that complainant is not entitled to any relief.

3.                 Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C6 and thereafter, counsel for complainant closed the evidence.

4.                 On the other hand, counsel for the OP tendered in evidence affidavit Ex.RA of Sh.Rajnish Kohli, Assistant Vice President claim of OP concern along with documents Ex.R1 to Ex.R37 and thereafter, closed the evidence.

5.                           Written arguments submitted by Ops and not by the complainant.  Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                 Ex.C4=Ex.R3 is the policy in question, under which, claim for reimbursement of medical expenses stacked by the complainant regarding her treatment from DMC & H, Ludhiana during period from 26.9.2013 to 3.10.2013. Before purchase of this insurance policy Ex.C4=Ex.R3 with validity period from 21.10.2012 to 20.10.2013, the complainant had been purchasing the insurance policies from OP with validity period from 21.10.2010 to 20.10.2011( as disclosed by contents of Ex.C6=Ex.R1=Ex.R23) and from 21.10.2011 to midnight of 20.10.2012( as disclosed by contents of Ex.C5=Ex.R2=Ex.R24).

7.                 Discharge summary of treatment of complainant from DMC & H, Ludhiana during period 26.9.2013 to 3.10.2013 has been produced on record as Ex.C1=Ex.R17=Ex.R31. In this discharge summary itself, it is mentioned in the column of diagnosis as if complainant Rajinder Kaur has old CVA-Right Hemiparesis (partially recovered). In the column of diagnosis, it is further mentioned as “RHD-Moderates MS-Moderate MR (EF=60%); chronic AF and syncope. This admission through discharge summary Ex.C1=Ex.R17=Ex.R31 was because of chief complaints of loss of consciousness which lasted for 2-3 minutes prior to the admission. No history of palpitation, cough or fever was detected through Ex.C1=Ex.R17=Ex.R31. So, from this discharge summary, it is made out as if complainant has old CVA-Right Hemiparesis(partially recovered). CVA connotes to Cerebrovascular accident and it means the sudden death of some brain cells due to lack of oxygen because the blood flow to the brain is impaired by blockage or rupture of an artery to the brain. This CVA is also referred to as a stroke as per study of internet search, the hard copy of which is made a part of this file. So, virtually the complainant was having old history of sudden death of some brain cells due to lack of oxygen. Blood flow to the brain of the complainant as such stood impaired, due to blockage or rupture of an artery to the brain earlier to her treatment during period from 26.9.2013 to 3.10.2013.  So, it need to be ascertained as to since when the complainant has history of this old CVA or of brain stroke caused due to impairment of blood flow to the brain.         

8.                 Ex.C2 is the bill of medical expenses on treatment as prepared by DMC & H, Ludhiana for period of treatment of complainant in question from 26.9.2013 to 3.10.2013. This bill is of amount of Rs.1,61,761/-, reimbursement of which is sought. Admittedly, the claim was registered and processed and thereafter, repudiated vide letter Ex.C3=Ex.R36 of date 15.10.2014.

9.                 After going through Ex.C3=Ex.R36, it is made out that claim of the complainant was repudiated after knowing her case to be of rheumatic heart disease and CVA-right hemiparesis since from 2007. Even this repudiation is based on contents of letter dated 4.9.2013 of doctors, in which, it is mentioned that the complainant is on anti platelet drugs and her case is known case of rheumatic heart disease and CVA. Present claim for syncope and for implantation of permanent pacemaker owing to the complication of pre-existing heart disease, qua which, the facts were not disclosed at the time of inception of the first policy since from 21.10.2010 to 20.10.2011 and that is why, by keeping in view the condition no.7 of the terms and conditions of the insurance policy, the claim is repudiated. Certainly contents of Ex.C1=Ex.R17=Ex.R31 discloses that case of complainant was diagnosed as a case of syncope and as such, assertions in letter Ex.C3=Ex.R36 in this respect gets corroboration from the contents of Ex.C1=Ex.R17=Ex.R31.

10.               Terms and conditions of each of the purchased insurance policies by the complainant are produced on record as Ex.R-1A; Ex.R-2A and Ex.R-3A. As per clause 5 of each of those policies, the insured to obtain the bills, receipts and other documents upon which a claim is based and those to be submitted to the insurer along with sought for additional information, if any. Condition no.7 of these terms and conditions provides that company shall not liable to make any payment under the policy in respect of any claim, if such claim is in any manner fraudulent or supported by any fraudulent means or device, mis-representation whether by the insured person or by any other person acting on his behalf.  It is the contention of counsel for OP that as the complainant at the time of purchase of the first policy in question with validity period from October 2010 to October 2011, did not disclose about her sufferance from old CVA in 2007 and as such, the policy in question obtained by the complainant by fraudulent means by suppression the material facts. As those material facts of previous ailment were known to the complainant or to his proposer, but despite that those were suppressed and as such, in view of mis-representation qua health condition of the complainant through proposal form, complainant committed fraud with OP for getting the policy in question issued. Submission of counsel for OP in this respect has force, when looked into the light of material available on record.

11.               Proposal form Ex.R4=Ex.R26 along with reply to additional questions Ex.R-4A=Ex.R-26A is placed on record. This proposal form bears thumb impression of complainant and same is of date  21.10.2010. After going through proposal form Ex.R4=Ex.R26 or the additional questions placed on record as Ex.R-4A=Ex.R-26A, it is made out as if the complainant has no medical history regarding sufferance from any disease/illness irrespective of whether hospitalization for the same was done or not. In response to the additional questions asked through Ex.R-4A=Ex.R-26A, it was submitted by the complainant on 21.10.2010 itself as if she was not suffering from CVA/brain strokes. Tick on option of ‘No’ is marked on each of the asked questions regarding sufferance from Cancer; chronic kidney disease; CVA/brain stroke; Alzheimer disease and of Parkinson’s disease and as such, it is obvious that the complainant replied about not suffering from CVA/brain stroke disease at the time of submission of proposal form on 21.10.2010. That fact certainly incorrectly disclosed by the complainant to her knowledge even because pre-authorization request form Ex.R5=Ex.R12=Ex.R27 along with contents of documents Ex.R8, Ex.R11, Ex.R13 and Ex.R21 shows as if the complainant suffered from right hemiparesis since 2007. Signatures of Sh.Lakhwinder Singh through whom, the policy in question was purchased by the complainant are thereon this Ex.R5=Ex.R12=Ex.R27. In Ex.R6 and Ex.R7, the queries letters regarding treatment of complainant with date of admission as 2.9.2013, it is mentioned as if case of complainant diagnosed as case of right hemiparesis and RHD. Through 2D MRI brain report Ex.R8 of date 3.9.2013, it was found as if the study of MR images of brain of complainant shows a large gliotic area with encephalomalacic changes in left MCA territory. Chronic hemorrhagic residues were noted in left lentiform nucleus. Besides, wallerian degeneration of left half of brainstem was noted. In view of chronic hemorrhagic residues noted in left lentiform nucleus and also of wallerian degeneration of left half of brainstem noted through Ex.R8, it is obvious that the complainant was suffering from brain hemorrhagic problem not from 2.9.2013, but earlier thereto and that is why, the chronic hemorrhagic residues were found and wallerian degeneration of left half of brainstem was found. Degeneration was possible with the passage of time and not all of a sudden.

12.               Contents of letter Ex.R11, the request for pre-authorization cashless treatment submitted by Avtar Singh, brother in law of complainant shows as if treatment from SPS Apollo Hospital, Sherpur Chowk was obtained during period from 3.9.2013 to 4.9.2013. On the second page of Ex.R11 itself, it is mentioned that the complainant suffered from CVA/Stroke/TIUA with right hemiparesis since from 2007, for which, she was admitted in SPS Apollo Hospital, Ludhiana in 2007. Even at page no.3 of Ex.R11 in column of PED if any, it is mentioned as if complainant suffered from hemiparesis, CVA since 2007 and she also suffered from RHD and AF. So, this Ex.R11 along with Ex.R5 enough to show that it was in the knowledge of Lakhwinder Singh(son of complainant) as well as Avtar Singh(brother in law of complainant), as if complainant suffered from right hemiparesis/CVA since from 2007 and that is why, she got treatment from SPS Apollo Hospital, Ludhiana in 2007. Even in pre-authorization request form Ex.R13 submitted by Sh.Lakwhinder Singh(son of complainant), it is mentioned as if complainant was having pre-existing disease of CVA/right hemiparesis. Past history of illness of HPN given as one year and six months with old CVA in Ex.R13. Even in Out Patient Card Ex.R21 of complainant prepared by DMC & H, Ludhiana, it is mentioned as if complainant has old CVA with right hemiparesis. So, this documentary evidence available on record certainly establishes as if the complainant suffered from right hemiparesis and of old CVA since from 2007. Despite these sufferings from right hemiparesis or of being old CVA case, those facts not disclosed in the proposal form Ex.R4=Ex.R26 or additional questioners Ex.R-4A=Ex.R-26A because therein it is claimed as if the complainant has not suffered from that disease/illness irrespective of hospitalization. Insurance policy is always issued in good faith and it is not a case in which, the medical examination of complainant was got conducted by the insurer prior to issue of first policy with validity from 21.10.2010 to 20.10.2011 and as such, virtually the facts regarding pre-existing ailments/medical conditions within the knowledge of the proposer or the insured has been suppressed at the time of purchase of first policy itself. Subsequent policies including the policy in question were renewal of the earlier policies. In view of this documentary evidence available on record, it is obvious that the complainant suppressed the material facts at the time of submission of proposal form qua her pre-existing medical conditions/ailments qua sufferance from right hemiparesis or of old CVA since three years prior to the inception of the first policy. So, virtually the policy in question on the basis of which claim stacked purchased by mis-representation and as such, due to fraudulent suppression of material facts, repudiation of claim is quite proper. Claim form Ex.R34 has been submitted by Sh.Lakhwinder Singh, who himself disclosed through earlier pre-authorization request as if her mother i.e. present complainant suffered from right hemiparesis/old CVA since from 2007 and as such, it is obvious that person acting on behalf of the insurer wants to have claim by fraudulent means owing to suppression of material facts.

13.               As per law laid down in cases titled as Himanibai SohanLal Mehta vs. New India Assurance Company Limited and another-II(2015)CPJ-654(N.C.); Shakuntala vs. Life Insurance Corporation of India-III(2014)CPJ-517(N.C.); S.Bakirathan Marthandan vs. New India Assurance Co.Ltd-I(2007)CPJ-203(N.C.); Ratanchand J.Shah (since deceased) vs. Oriental Insurance Co.Ltd-III(2009)CPJ-111(Gujarat State Consumer Disputes Redressal Commission, Ahmedabad); National Insurance Company Limited vs. Satya Pal Tuli-IV(2003)CPJ-98(N.C.); LIC of India and others vs. Smt.Shahsi Bala-IV(2003)CPJ-91(N.C.); Kulwant Singh vs. United India Insurance Co.Ltd and another-IV(2008)CPJ-196(N.C.); Sapna Arora vs. Life Insurance Corporation of India and others-I(2009)CPJ-588(Punjab State Consumer Disputes Redressal Commission, Chandigarh); Shakuntala R.Khosla vs. Oriental Insurance Co.Ltd-II(2012)CPJ-78(Maharashtra State Consumer Disputes Redressal Commission, Mumbai); Oriental Insurance Company Limited vs. Shanti Parshad Goyal and others-I(2013)CPJ-152(Haryana State Consumer Disputes Redressal Commission, Panchkula); United India Insurance Co.Ltd vs. Kanta Gupta-II(2012)CPJ-191(N.C.) Shakuntala vs. Life Insurance Corporation of India-III(2014)CPJ-517(N.C.); Life Insurance Corporation of India vs. Neelam Sharma-IV(2014)CPJ-658(N.C.), if the proposer or insurer at the time of submission of proposal form suppressed the material facts of previous ailments or of previous medical conditions deliberately, then in view of non-furnishing of information qua pre-existing medical ailments/medical conditions, insurer entitled to repudiate the claim due to suppression of material facts. Same is the position in the case before us because here though, complainant suffered from right hemiparesis or of old CVA since from 2007 and got treatment from SPS Apollo Hospital, Ludhiana, but despite that those material facts of previous ailments were not disclosed at the time of submission of the proposal form and as such, repudiation of claim is duly justified.

14.               As per law laid down in cases titled as Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.), contract of insurance is a contract of utmost good faith and the terms and conditions of the insurance policy are binding on the parties and nothing can be added or subtracted thereto. So, certainly terms and conditions of the insurance policy as referred above has to be taken into consideration for finding as to whether repudiation of claim is justified or not? In view of clause 7 of the terms and conditions of the policy, it is held that as suppression of material facts regarding previous ailments/medical conditions of suffering from right hemiparesis/CVA since from 2007 was suppressed and as such, in view of mis-representation made in the proposal form qua non-sufferance of the complainant from any disease prior to 21.10.2010, there is no escape from conclusion that policies purchased since from beginning by mis-representation or fraudulent suppression of material facts, being so repudiation of claim is duly justified.

15.               Certainly, law laid down in case of Iffco Tokio General Insurance Company Limited vs. Permanent Lok Adalat(Public Utility Services), Gurgaon and others-2012(1)RCR(Civil)901(Punjab & Haryana High Court) lays that insurance contract in respect of medi-claim policy is a contract amongst unequal because the bargaining  parties are unequal and consumer has no          real freedom to the contract. As per ratio of this case, Courts can strike down unfair and unreasonable clause in a contract of insurance where parties are not equal in bargaining power. In the reported case, it was found that pre-existing conditions existed 5 years prior to acquiring of the insurance policy and as such, claim cannot be repudiated. After going through para no.2 of this cited case, it is made out that exclusionary clause qua repudiation on account of pre-existing condition to cease to apply, if the insured has maintained an individual medishield insurance policy with the insurer with consecutive 3 years period prior to the present policy coverage. However, the claim in this case put forth in 3^rd year of the policy and as such, terms and conditions of the insurance policy forming the subject matter of the reported case are distinct, than those of referred terms and conditions of the insurance policy of this case. Besides, in the reported case, question of fraudulent suppression or mis-representation of facts pertaining to medical ailments/pre-existing medical conditions was not involved, but that question involved in this case and as such, benefit from above cited case can’t be gained by counsel for complainant. In case titled as Life Insurance Corporation of India and others vs. Dr.P.S.Aggarwal-2005(1)CPJ-41(N.C.), it was found that policy was issued in March 1999 after detailed examination, investigation and check up and insured was not being treated at any point of time for any heart ailments earlier to the purchase of the policy. Reference to para no.4 of the cited case in this respect can be specifically made. However, in the case before us, admission of the son of the complainant itself shows that complainant was treated for right hemiparesis/CVA in SPS Apollo Hospital, Ludhiana in 2007 i.e. three years prior to the inception of the policy. So, facts of this reported case are quite distinct, then those of the facts of the case before us. In the reported case as well as in case of LIC of India vs. Joginder Kaur and others-2005(2)CPJ-78(N.C.); New India Assurance Co.Ltd vs. Tribhuvan Parkash Gupta-2003(3)CPJ-113(Punjab State Consumer Disputes Redressal Commission, Chandigarh); LIC of India vs. Mohinder Kaur-2003(2)CPJ-30(N.C.) and LIC of India vs. Promila Malhotra-2003(2)ALT-11(N.C), it was found that it was the insurer who failed to  prove that there was deliberate suppression of material facts qua sufferance of previous ailments of the insured. As pre-existing disease in the reported case was found to be not in the knowledge of the complainant/insured/proposer and that is why it was found that the insurer failed to prove as if there is deliberate suppression of material facts qua pre-existing ailments/medical conditions. That is not the position in the case before us because here as already referred above, son and brother in law of the complainant were knowing from sufferance of complainant owing to brain stroke problem since from 2007, but despite that the same was not disclosed at the time of submission of the proposal form deliberately.

16.               Hemiparesis is unilateral paresis, that is, weakness of the entire left or right side of the body. Hemiparesis and hemiplegia can be caused by different medical conditions, including congenital causes, trauma, tumors or stroke and as such, it is contended by counsel for complainant that in fact, the previous medical conditions/ailments of the complainant was not known to her or to her son and other relatives. However, present is not a case of suffering from right hemiparesis alone, but it is a case of sufferance from CVA since from 2007 also as discussed above and as such, it is obvious that right hemiparesis took place in this case due to stroke on account of impairment of blood flow to the brain. The present as such is not a case of weakness of right side of the body of complainant alone, but it is a case of brain stroke/CVA since from 2007. So, submission of counsel for complainant has no force that there was no suppression of material facts at all. There was no necessity to call Sh.Pankaj Bhalla, particularly when record discussed in detail above establishes sufferance of complainant since from 2007 as per admission suffered by son and brother in law of complainant.            Admission binds a party or his representative. In case of                            admission suffered by a party or his representative, the other evidence for proving that admission is not required. So, non-calling of Pankaj Bhalla by OP is not much material. No deficiency in service on the part of OP as such inferable and nor it is proved that they adopted any unfair trade practice by repudiating the claim.

17.               Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

18.                         File be indexed and consigned to record room.

 

 

                      (Param Jit Singh Bewli)                  (G.K. Dhir)

            Member                                            President

Announced in Open Forum

Dated:06.07.2017

Gurpreet Sharma.