BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.373 of 2015
Date of Instt. 28.08.2015
Date of Decision : 14.09.2016
Parvesh Gupta son of Heera Lal, P.K.Enterprises, Grain Market, Sultanpur Lodhi, Kapurthala.
..........Complainant
Versus
Star Health & Allied Insurance Company Limited, Branch Office:-EH-198, 2nd Floor, Nirmal Complex, GT Road, Jalandhar.
.........Opposite party
Complaint Under Section 12 of The Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Sh.Parminder Sharma (Member)
Present: Sh.SC Sood Adv., counsel for the complainant.
Sh.AK Arora Adv., counsel for the opposite party.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of 'The Consumer Protection Act' against the opposite party (hereinafter called as OP) on the averments that the complainant got insurance policy namely Family Health Optima Insurance Policy from OP for the period from 27.7.2014 to 26.7.2015 Ex.OP9. During the insurance policy period from 26.7.2014 to 25.7.2015, the complainant suffered medical ailment and was detected Diabetes Mellitus, Post PCNL, Hematuria, Stone was also detected in the kidney of the complainant. The complainant was initially treated at DMC Hospital, Ludhiana and thereafter he was treated at Shri Nath Kidney Center, Jalandhar and the complainant spent a sum of Rs.3,50,761/-. The claim for Rs.1,09,793/- vide claim No.CLI/2015/161125/0285765, claim for Rs.33,532/- vide claim No.CLI/2015/161125/0285760, claim for Rs.86,081/- vide claim No.CLI/2015/161125/0196009 and claim for Rs.1,21,355/- vide claim No.CLI/2015/161125/0174431 were lodged with the OP. However, the OP repudiated the claims of the complainant vide letters dated 28.7.2015 on the ground of non-disclosure of pre-existing disease of hypertension for the last 7 years which is prior to inception of the policy in the year 2013, as per letter dated 9.6.2015 of Dr.Ajay Marwaha. The complainant submitted that he was not having knowledge of any pre-existing disease of hypertension at the time of taking of the policy nor the complainant had ever taken medicine or treatment from any doctor or medical expert for the treatment of hypertension prior to inception of the policy in 2013. Rather this ailment has been detected in the second year of this policy. The complainant submitted that the OP has passed the claims of the complainant but did not pay the same to the complainant. On such averments, the complainant has prayed for directing the OP to pay the claimed amount i.e. Rs.3,50,761/-. He has also claimed compensation and litigation expenses.
2. Upon notice, OP appeared through counsel and filed a written reply pleaded that the complainant was admitted in Shri Nath Kidney Centre, Jalandhar on 31.10.2014 for the treatment of Diabetes Mellitus 2, Post PCNL, Hematuria, Hypertension and Acute on Chronic Kidney Disease. The OP got a letter from Dr.Ajay Marwaha dated 9.6.2015 who stated that the complainant has hypertension for the past 7 seven years i.e. which was prior to the inception of the first insurance policy for the period from 26.7.2013 to 25.7.2014. The present admission is for the treatment of chronic kidney disease which is complication of hypertension and therefore, it is pre-existing disease and the complainant has not disclosed his medical history/health details in the proposal form at the time of inception of first medical policy which amounts to misrepresentation/ non-disclosure of material facts. Therefore, OP has rightly repudiated the claim of the complainant vide letter dated 28.7.2015. However, the OP passed the claims of the complainant with certain deductions but as the complainant has not disclosed the material facts at the time of taking first policy in 2013. So, the OP has rightly repudiated the claim of the complainant.
3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CW1/A and CW1/B alongwith copies of documents Ex.C1 to Ex.C14 and closed his evidence.
4. On the other hand, learned counsel for the OP has tendered into evidence affidavit Ex.OP1/A and Ex.OP1/B alongwith copies of documents Ex.OP1 to Ex.OP15 and closed evidence.
5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that the complainant got insurance policy namely Family Health Optima Insurance Policy from OP for the period from 27.7.2014 to 26.7.2015 Ex.OP9. During the insurance policy period from 26.7.2014 to 25.7.2015, the complainant suffered medical ailment and was detected Diabetes Mellitus, Post PCNL, Hematuria, Stone was also detected in the kidney of the complainant. The complainant was initially treated at DMC Hospital, Ludhiana and thereafter he was treated at Srinath Kidney Center, Jalandhar and the complainant spent a sum of Rs.3,50,761/-. The claim for Rs.1,09,793/- vide claim No.CLI/2015/161125/0285765, claim for Rs.33,532/- vide claim No.CLI/2015/161125/0285760, claim for Rs.86,081/- vide claim No.CLI/2015/161125/0196009 and claim for Rs.1,21,355/- vide claim No.CLI/2015/161125/0174431 were lodged with the OP. However, the OP repudiated the claims of the complainant vide letters dated 28.7.2015 Ex.C1 to Ex.C4 on the ground of non-disclosure of pre-existing disease of hypertension for the last 7 years which is prior to inception of the policy in the year 2013 Ex.C7, as per letter dated 9.6.2015 of Dr.Ajay Marwaha Ex.OP3. The complainant submitted that he was not having knowledge of any pre-existing disease of hypertension at the time of taking of the policy nor the complainant had ever taken medicine or treatment from any doctor or medical expert for the treatment of hypertension prior to inception of the policy in 2013. Rather this ailment has been detected in the second year of this policy. Learned counsel for the complainant submitted that the OP has passed the claims of the complainant vide vouchers Ex.OP13 to Ex.OP16 but did not pay the same to the complainant on the aforesaid ground which is totally illegal and all this amounts to deficiency of service on the part of the OP qua the complainant.
7. Whereas the case of the OP is that the complainant was admitted in Shri Nath Kidney Centre, Jalandhar on 31.10.2014 for the aforesaid diseases. The OP got a letter from Dr.Ajay Marwaha dated 9.6.2015 who stated that the complainant has hypertension for the past 7 seven years i.e. which was prior to the inception of the first insurance policy for the period from 26.7.2013 to 25.7.2014 Ex.C7. The present admission is for the treatment of chronic kidney disease which is complication of hypertension and therefore, it is pre-existing disease and the complainant has not disclosed his medical history/health details in the proposal form at the time of inception of first medical policy Ex.C7 which amounts to misrepresentation/ non-disclosure of material facts. Therefore, OP has rightly repudiated the claim of the complainant vide letters dated 28.7.2015 Ex.C1 to Ex.C4. However, the OP passed the claims of the complainant with certain deductions vide vouchers Ex.OP13 to Ex.OP16 but as the complainant has not disclosed the material facts at the time of taking first policy in 2013 Ex.C7. So, the OP has rightly repudiated the claim of the complainant. Therefore, learned counsel for the OP submitted that there is no deficiency of service on the part of the OP qua the complainant.
8. From the entire above discussion, we have come to the conclusion that the complainant obtained policy namely Family Health Optima Insurance Policy from OP in the 2013 for the period from 26.7.2013 to 25.7.2014 Ex.C7 and for the period from 26.7.2014 to 25.7.2015 Ex.OP9 and also for the period from 26.7.2015 to 25.7.2016 Ex.C12. However, during the policy period from 26.7.2014 to 25.7.2015 Ex.OP9, the complainant fell ill and he was admitted in Shri Nath Kidney Centre, Jalandhar on 31.10.2014 and was diagnosed Diabetes Mellitus 2, Post PCNL, Hematuria, Hypertension and Acute Chronic Kidney Disease for which the complainant spent a sum of Rs.3,50,761/-. The complainant lodged four claims i.e. claim No. CLI/2015/161125/0285765 for a sum of Rs.1,09,793/-, claim No. CLI/2015/161125/0285760 for a sum of Rs.33,532/-, claim No. CLI/2015/161125/0196009 for a sum of Rs.86,081/- and claim No.CLI/2015/161125/0174431 for a sum of Rs.1,21,355/-. The OP scrutinized and processed these claims and passed these claims i.e. claim No. CLI/2015/161125/0285765 for Rs.1,05,654 vide voucher Ex.OP13, claim No. CLI/2015/161125/0174431 for Rs.104784/- vide voucher Ex.OP14, claim No.CLI/2015/161125/0285760 for Rs.32266/- vide voucher Ex.OP15 and claim No. CLI/2015/161125/ 0196009 for Rs.84648/- vide voucher Ex.OP16. Thereby, the OP has decided to pay the aforesaid amounts i.e. Rs.1,05,654 + Rs.1,04,784/- + Rs.32,266/- + Rs.84,648/- = Rs.3,27,352/- to the complainant against the aforesaid claims but OP repudiated the claim of the complainant vide letters Ex.C1 to Ex.C4 respectively all dated 28.7.2015 on the ground that the complainant was suffering from hypertension for the past 7 years i.e. prior to the inception of the policy and the complainant has not disclosed this health history in the proposal form Ex.OP8 at the time of taking first policy for the year 2013-14 Ex.C7. In this regard, the OP has produced letter from Dr.Ajay Marwaha dated 9.6.2015 Ex.OP3 in which he has stated that the complainant is a known case of hypertension since 6-7 years. However, he was diagnosed on 31.10.2014. The OP neither filed any affidavit of Dr.Ajay Marwaha nor produced any medical treatment record of the complainant that he was being treated for hypertension for the last 6-7 years nor the OP could produce any other evidence that the complainant had taken any medicines for the treatment of hypertension from any medical expert/doctor nor the OP could produce any evidence that the complainant had knowledge regarding this disease of hypertension for the last 6-7 years i.e. prior to the inception of the policy in the year 2013 Ex.C7. It has been held by our own Hon'ble State Commission in case LIC Vs. Priya Sharma and others 2011 (3) CLT 549 that “burden of proof that the insured was suffering from any pre-existing disease at the time of purchasing the policy, is on the insurance company. The doctor who examined life assured, also not examined by the OP in the Forum. No evidence to prove that the deceased was ever admitted or took any treatment from any hospital or doctor regarding the alleged pre-existing disease. The order of Forum was up-held”. The same view has been taken by Hon'ble National Commission in case Life Insurance Company of India and ors Vs. Dr.P.S.Aggarwal, 2005(1) CPJ 41 as well as by our own Hon'ble State Commission in case Kotak Mahindra Old Mutual Life Insurance Limited and others Vs. Veena Rani 2015(4) CPJ 37. In this case, the OP has neither produced any medical treatment record of the complainant that he has taken medicine/treatment for hypertension from any hospital/doctor nor the OP has examined any doctor who could depose that he treated the complainant for the said disease of hypertension for the last about 6-7 years as alleged by the OP nor the OP has filed affidavit of Dr.Ajay Marwaha who has simply diagnosed the complainant on 31.10.2014 that the complainant was known case of hypertension since 6/7 years as per his letter dated 9.6.2015. So, we hold that the OP has failed to prove on record that the complainant was suffering from hypertension or he has knowledge about this disease prior to inception of the first policy in 2013 Ex.C7. Resultantly, we hold that the OP has wrongly repudiated the aforesaid claims of the complainant vide letters Ex.C1 to Ex.C4 respectively all dated 28.7.2015. The OP has passed the aforesaid claims of the complainant vide voucher Ex.C13 to Ex.C16 for a sum of Rs.1,05,654, Rs.1,04,784/-, Rs.32,266/-, Rs.84,648/- respectively in all Rs.3,27,352/-. As such we hold that the OP is liable to pay this amount of Rs.3,27,352/- to the complainant. Resultantly, the complaint is partly allowed with cost and the OP is directed to pay the aforesaid amount Rs.3,27,352/- to the complainant within one month from the date of receipt of copy of this order, failing which OP shall be liable to pay interest @ Rs.9/- % per annum on this amount from the date of filing of the complaint till the payment is made to the complainant. The OP is also directed to pay the cost of litigation to the complainant to the tune of Rs.3000/-. Copies of the order be sent to the parties free of cost, under rules. File be consigned to the record room.
Dated Parminder Sharma Bhupinder Singh
14.09.2016 Member President
