Haryana

Ambala

CC/18/2019

Sumit Nagpal - Complainant(s)

Versus

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

Pardeep Batra

28 Jan 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case No.: 18 of 2019.

                                                          Date of Institution           :  17.01.2019.

                                                          Date of decision     :   28.01.2021

 

Sumit Nagpal son of Shri Kartar Nagpal, resident of House No.225, Sector-9 Urban Estate, Ambala City.

……. Complainant.

                                                Versus

 

Star Health & Allied Insurance Company Ltd., Branch Office SCO No.180, 1 to 3 third floor Minerva Complex, Rai Market, Ambala Cantt.

 

 

          ….…. Opposite Party.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Pardeep Batra, Advocate, counsel for complainant.

Shri Mohinder Bindal, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To direct the OPs to pay Rs.6,00,000/-, i.e. expenses incurred on the medical treatment of the insured.
2. To pay Rs.3,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.             

 

                   Brief facts of the case are that the complainant purchased Family Health Optima Insurance-2017 vide policy No. P/211117/01/2018/001516, from the OP, vide which he & his family members were insured for the period from 07.12.2017 to 06.12.2018. As per the terms and conditions of the policy, whenever any of the insured person had some problem and remained as Indoor Patient in the hospital, the company would fully re-reimburse the expenses of the treatment. Sheenam Nagpal, one of the insured got some problem in the abdomen and got checked herself from P.G.I. Chandigarh. During the course of the treatment the doctors diagnosed ulcer in the colon and started the treatment w.e.f. 13.02.2018. During the course of the treatment, doctors suggested Chemo Therapy Treatment. The insured has gone through the chemo therapy several times and incurred expenses to the tune of Rs.6 Lacs. Sheenam Nagpal, being insured lodged the claim with the OP vide claim intimation No.CLI/2019/211117/0038787. He furnished all relevant documents with the OP, but to the utter surprise of the complainant, the OP repudiated the claim of the complainant vide letter dated 3.8.2018. By not paying the claim amount, the OP has committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OP appeared through counsel and filed written version, raising preliminary objections regarding jurisdiction and cause of action. On merits, it is stated that the complainant has taken the policy for the period from 07.12.2017 to 06.12.2018, by concealing and suppressing the material facts about his pre-existing ailment of his wife Smt. Sheenam Nagpal to take illegal benefits of the policy. That the said insurance policy was issued subject to certain terms and conditions as per information provided by the complainant about his medical status including that of his family members. The complainant was legally duty bound to disclose each and every information and material fact about pre-existing ailment and about the health of all the members to be covered under the policy at the time of availing the policy and a proposal form was also submitted by the complainant with all his medical and treatment details but the complainant intentionally and deliberately due to ulterior motive concealed necessary information therein about the ailment which his wife Smt. Sheenam was suffering. From the OPD cum admission card issued by PG, Chandigarh, it is evident that wife of the complainant admitted in the hospital on 02.02.2018 and discharged on 09.02.2018, wherein it was specifically mentioned that she was suffering from abdomen pain since one year and was diagnosed a case of colon cancer and not of Ulcer. It is further stated that the Chemo Therapy treatment is given only to the cancer patient and not to a patient suffering from any ulcer. It is further stated that the complainant claimed an amount of Rs.59,888/- and has submitted bills for the same. On Scrutiny of the claim documents, it is observed that as per outpatient record of the complainant of PGI, Chandigarh, discharge card, the patient/wife of the complainant was suffering from abdomen pain since 5 months insidious onset gradually progressive and same diagnosed with CA Colon Stage III. It is established that the complainant was suffering from CA Colon prior to inception of the present medical insurance policy. The insured has a duty to disclose each and every information and material fact about pre-existing ailment and about his health at the time of availing of the policy. Since the complainant has intentionally and deliberately concealed and suppressed the material facts about pre-existing ailment to take illegal benefits of policy from the OP, hence the claim was rightly and legally held not maintainable and payable. The claim of the complainant was repudiated vide letter dated 03.08.2018. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint with costs.

3.                Complainant tendered his affidavit as Annexure C-A along with documents as Annexure C-1 to C-108 and closed the evidence. On the other hand, learned counsel for OP tendered affidavit of Rajiv Jain, Chief Manager, Star Health & Allied Insurance Company Ltd., Ist Floor, Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001 as Annexure OP-A alongwith documents Annexure OP-1 to OP-6 and closed the evidence on behalf of OP.

4.                We have heard the learned counsel of the parties and carefully gone through the case file.  

5.                The Ld. counsel for the complainant submitted that the OP has wrongly repudiated the claim because prior to taking the policy in question, it was not in his knowledge that his wife was suffering from Colon cancer. The insurance company has not been able to lead any convincing evidence to prove that it was into the knowledge of insured that she was suffering from colon cancer before taking the policy in question. In support of his contention the ld. counsel for the complainant has placed reliance on the case titled as United India Insurance Compay Ltd. & Anr. Versus S.K. Gandhi, decided on 05.01.2015, wherein the Hon’ble National Commission has observed that “it is quite possible that complainant, despite suffering from hypertension was not actually aware of the same. In that case, he cannot be accused of misstatement or concealment. The onus was upon the insurance company to prove that he had made a representation while obtaining the insurance policy. In order to succeed the insurance company was required to produce evidence either from Kailash Hospital or from the doctor who treated the complainant to prove that the complainant at the time of admission in this hospital had himself stated that he was suffering from high blood pressure from last 8-9 years. He further relied upon the case titled as Religare Health Insurance Co. Ltd. Versus Swaran Kanta Jain, 2018 (3) CLT 441, wherein the Hon’ble State Commission, Punjab has held that the history recorded in the discharge summary cannot be taken as an evidence, mere averment in the discharge summary is not sufficient to conclude that insured was in the knowledge that she was suffering from the disease of Saeroidisis with unveitis. It is also matter of concern that in India number of people continue to live for number of years, without notice of any disease for which they are suffering and yet comes to the light only during investigation or at the time of treatment and as such claim was wrongly rejected.

                   On the other hand, the ld. counsel for the OP argued that the repudiation of the claim was legal and valid because there was suppression of material facts as at the time of inception of the policy and while filling up the proposal form, the insured did not disclose that his wife was suffering from colon cancer. In the OPD card of PGI Annexure OP5, it is clearly mentioned that the wife of the complainant was having pain in abdomen on and off, since one year. Furthermore, from discharge and follow up card Annexure OP6, it is evident that wife of the complainant was suffering from CA Colon-III and Treating Doctor recommended for Chemo Therapy. Ld. counsel for the OP has placed reliance upon the case titled as Nori Venkata Ramana Versus Reliance General Insurance Co. Ltd., revision petition No.494 of 2018, decided on 15.02.2018, wherein the Hon’ble National Commission, has held that the information withheld by the complainant/petitioner from the insurer was certainly a material fact which influenced the decision of the Insurer on the question whether to accept the proposal for the insurance of the complainant or not and dismissed the said revision petition. He further placed reliance upon case titled as Prem Kumar Chhabra Versus Life Insurance Corporation Ltd. RP No.3405 of 2017, decided on 04.12.2017, wherein Hon’ble National Commission has observed that the deceased insured was suffering from Thalassemia since childhood. Disease not disclosed in the proposal form. Insured had suppressed the material facts regarding his health and has dismissed the said revision petition.

                   It may be stated here that the plea taken by the OP to the effect that Doctor concerned has written on the OPD card that the insured was having pain in abdomen on and off, since one year is concerned, the same does not merit acceptance, in view of the law laid down by the Hon’ble National Commission, in the case of LIC of India Versus Joginder Kaur, 2005 CPJ (78), wherein it was held that unapproved case history recorded by some person on the date of admission of deceased would not be cogent and convincing evidence to repudiate the claim, unless it was coupled with medical report for treatment prior to submission of proposal form. No such document has been produced on record by the OP to show that the insured was having knowledge that she was suffering from Colon Cancer prior to taking the policy in question. The Insurance Company had issued an insurance policy on 07.12.2017, whereas the insured was subsequently diagnosed with Colon cancer on 24.02.2018 as is evident from discharge summary C-14, and the OP failed to provide medical record to show that the wife of the complainant was suffering from colon cancer and it was well within the knowledge of the complainant, before the inception of the policy in question. Thus, it cannot be said that complainant had concealed the disease of his wife, while filling up the proposal form.

6.                Our view is fortified by the case titled as Future Generali India Insurance Co. Ltd. Vs. Inderjit Singh, decided on 18.04.2019, whereby Hon’ble National Commission, has upheld the concurrent orders of the Hon’ble State Commission and District Commission on the ground that policy in question was purchased by the insured prior to the detection of the disease. Keeping in view the ratio of the law laid down in the case of LIC of India Versus Joginder Kaur (supra) and Future Generali India Insurance Co. Ltd. (Supra) and the facts and circumstances of the present case, we are of the considered opinion that the insurance company is not able to prove the allegations on the basis of which, it has repudiated the claim of the complainant. Thus, the repudiation of the claim by the insurance company is held to be unjustified and amounts to deficiency in service. The OP is thus liable to indemnify the complainant for the expenses incurred by him on the treatment of his wife. From the perusal of copy of proposal form Annexure C-2, it is evident that the complainant and his wife were duly insured with the OP for a sum of Rs.10,00,000/-. The complainant has averred that he had spent Rs.6,00,000/- on the treatment of his wife and has placed on record the receipts/bills Annexure C-17 to Annexure C-105. However, from the said receipts, it is revealed that complainant had spent Rs.5,29,728/- for the treatment of his wife and not Rs.6,00,000/- as sought for. The OP is thus liable to pay Rs.5,29,728/-. OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by him.

7.                In view of the aforesaid discussion, we hereby allow the present complaint against the OP and direct it in the following manner:-

1. To pay the amount of Rs.5,29,728/- i.e. the expenses incurred by the complainant on the treatment of his wife.
2. To pay Rs.10,000/- as compensation for mental agony and physical   harassment suffered by the complainant.

 

                    The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which OP shall pay interest @ 6% per annum on the awarded amount from the date of decision of the present complaint, till its realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on : 28.01.2021

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

          Member                                    Member                          President