Haryana

Karnal

CC/323/2019

Ajay Sharma - Complainant(s)

Versus

Star Health & Allied Insurance Company Limited - Opp.Party(s)

P.K. Mandi

02 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 323 of 2019

                                                        Date of instt.10.06.2019

                                                        Date of Decision:02.05.2022

 

Ajay Sharma son of Shri Rameh Chand Sharma, resident of house no.E-85, Poultry Area, near Government Press, Nilokheri, District Karnal.

                                               …….Complainant.

                                              Versus

 

Star Health & Allied Insurance Co. Limited through its Divisional Manager, having its Branch office at 2^nd floor, SCF no.137, Sector-13, near ICICI Bank, Karnal.

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri P.K. Mandi, counsel for complainant.

                   Shri Naveen Khetarpal, counsel for OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OP’) on the averments that complainant purchased a Family Health Insurance Policy bearing no.P/211114/01/2018/007590 from the OP on 19.01.2018 and paid a premium of Rs.15,287/-.  As per terms and conditions of the insurance policy, the whole family including i.e. complainant himself, his wife Rajni Sharma, his son Raghav Sharma and his daughter Vani were covered under the aforesaid policy. In the month of April, 2018 the complainant was having some problems in the body including some cramps and also having some appetite problem. The complainant got his fully body test done from Modern Diagnostic and Research Centre (P) Limited, New Railway Road, Gurugram on 18.04.2018. Then complainant contacted the doctors I.V.Y. Hospital, Sector-71, Mohali and where some tests were also got conducted on 01.05.2018 from Polo Labs IVY Hospital, Sector 71, Mohali. The complainant was found suffering from some kidney disease. The complainant got the treatment of the aforesaid disease from the abovesaid hospital as well as from Sanjiv Bansal Cygnus Hospital, Railway Road, Karnal and Rama Super-specialty and Critical Care Hospital, Karnal, thereafter from Mool Chand Kidney Hospital Karnal and also got the dialysis from time to time as per advice of the doctor concerned and still getting the said treatment and dialysis from the abovementioned hospital. Complainant spent an amount of Rs.3,50,000/- on his treatment, tests and dialysis etc. The complainant is still getting the treatment of abovementioned ailment. The complainant also purchased another Family Health Policy from United India Insurance Co. Limited for the entire family on 07.11.2017 and also paid an amount of Rs.7788/-. After the treatment the complainant also applied for the reimbursement/claim of the treatment amount including tests dialysis and other expenses whereby the claim of the complainant has not been allowed by the company as a result of which the complainant is filing a complaint before this Commission. It is further averred that OP repudiated the claim of the complainant, vide email dated 14.01.2019 on the ground of pre-existing disease. In this way there is deficiency in service on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that the insured availed Family Health Optima Insurance Plan covering Mr. Ajay Sharma-self, Rajni Sharma-pouse, Raghav Sharma and Vani Sharma-dependent children for the sum insured of Rs.5,00,000/-, vide policy no.P/211114/01/2018/007590 for the period for 19/01/2018 to 18/01/2019. It is further pleaded that the terms and conditions of the policy were explained to the complainant at the time of proposing policy and same was served to the complainant alongwith the policy schedule. Moreover, it is clearly stated in the policy schedule that the insurance under this policy is subject to conditions. It is further pleaded that the insured patient, Ajay Sharma was hospitalized in Sri Mool Chand Kidney Hospital and Urological Institute-Hathlana (4) on 01.05.2018 and subsequently admitted in Sajiv Bansal Cygnus Hospital and was diagnosed with CKD/ESRD with hypertension. The insured submitted claim for reimbursement of Rs.1,57,482/- in the 5^th month of the policy. On scrutiny of the claim documents, it is observed that the ultrasound abdomen report dated 01.05.2018 shows bilateral chronic, renal parenchymal disease. Thus, the claim was referred for the specialist, and the following were the findings of the specialist.

.       USG dated 30.04.2018, shows small kidney on both sides.

.       USG dated 01.05.2018 shows loss of corticomedullaty differentiation.

.       eGFR is only 4.8ml/min.

.       Hemoglobin is only 9.4 gm/dl dated 18.04.2018.

From the above findings, it is observed that the insured has long standing ailment prior which take more than five months to develop, hence it is pre exiting disease. At the time of inception of policy which is from 19.01.2018 to 18.01.2019, the insured have not disclosed the abovementioned medical history/health details of the insured person in the proposal form which amounts to misrepresentation/non-disclosure of material facts. As per condition no.6, if there is any misrepresentation whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim. Insurance is based on utmost good faith. As per the contract of insurance, the insured is expected to declare in the proposal form about details of his ailments/sickness-past medical history and reply for the same helps the insurer to evaluate the material facts and to decide whether to accept the proposal or not. As per condition no.12 of the policy, “the company may cancel this policy on grounds of misrepresentation, fraud, moral hazard, non-disclosure of material fact as declared in the proposal form/at the time of claim or non-cooperation of the insured person”. Hence, the policy was cancelled. It is further pleaded that the insured submitted representation to reconsider the claim alongwith the previous insured. On receipt of the same, it is observed that the insured has not disclosed the previous policy in the proposal form. Thus, the claim could not be considered favorably and the same was informed to the insured, vide letter dated 30.10.2018. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel or complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of bill details Ex.C2, copy of repudiation letter Ex.C3, copy of complaint Ex.C4 and closed the evidence on behalf of complainant on 03.08.2021 by suffering separate statement.

5.             On the other hand, learned counsel for OP has tendered into evidence affidavit of Rajiv Jain, Chief Manager Ex.RW1/A, copy of proposal form Ex.R1, copy of insurance policy Ex.R2, copy of endorsement schedule Ex.R3, copy of terms and conditions of the insurance policy Ex.R4, copy of policy declaration Ex.R5, copy of claim form Ex.R6, copy of discharge summary Ex.R7 and Ex.R10, ultrasound report Ex.R8 and Ex.R9, copy of medical bills Ex.R11 and Ex.R12, copy of doctor’s certificate Ex.R13, copy of calculation sheet Ex.R14, copy of repudiation letter Ex.R15 and Ex.R16, CD Ex.C17 and closed the evidence on behalf of OP on 02.11.2021 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties

7.             Learned counsel of complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a health insurance policy from OP. The complainant was/is suffering from kidney disease and got the treatment from various hospitals for the said disease and also got the dialysis from time to time as per advice of the doctor and still getting the said treatment and dialysis. Complainant spent an amount of Rs.3,50,000/- on his treatment, tests and dialysis etc. After discharge from the hospital complainant applied for reimbursement of the claim with the OP but OP did not pay any claim and repudiated the same on the false and frivolous ground. Hence, prayed for allowing the complaint.

8.             Per contra, learned counsel of OPs while, reiterating the contents of written version, has vehemently argued that at the time of obtaining the policy life assured had not disclosed in the proposal form that he had already availed the parallel insurance policy from United India Insurance company Ltd. prior to purchase of the policy in question from the OP. He further argued that during the claim investigation, it was found that the life assured was suffering from Kidney disease and was under treatment for the same. This fact was not disclosed by the life assured, at the time of obtaining of the policy. Learned counsel for the OP relied upon the judgment of Hon’ble Supreme Court in case titled as LIC of India and Anr. Versus Vidya Devi and Anr. 2013 (3) WBLR 674; Satwant Kaur Sandu Versus New India Assurance Company Ltd. in civil appeal no.2776 of 2002 date of decision 10.07.2009 and Dineshbhi Chandarana and Anr. Versus Life Insurance Corporation and Anr. 20011 (1) CPR 63 and prayed for dismissal of the complaint.

9.             We have duly considered the rival contention of the parties.

10.           Admittedly, the complainant had purchased a Health insurance plan on 19.01.2018 for the sum insured of Rs.five lakhs for the period 19.01.2018 to 18.01.2019. It is also admitted that complainant was found suffering from kidney disease during the subsistence of the insurance policy.

11.           The complainant was hospitalized in Sri Mool Chand Kidney hospital and Urological Institute on 01.05.2018 and subsequently admitted in Sanjiv Bansal Cygnus Hospital and was diagnosed with CKD/ESRD with hypertension. The claim of the complainant has been repudiated the by the OP, vide repudiation letter Ex.C3/Ex.R15 dated 29.12.2018 on the ground, which reproduced as under:-

“our medical team has perused your representation and has noted the contents. The team which re-examined the claim records has observed that as per the submitted records, the patient is diagnosed with end stage renal disease, ultrasound abdomen report dated 01.05.2018 shows bilateral chronic renal parenchymal disease, contracted kidneys and proteinuria+++. Based on these findings our medical team is of the opinion that the insured patient has chronic, longstanding kidney disease exiting prior to our policy. Also the insured has parallel policy from United India Insurance Company Ltd. which the insured has not disclosed at the time of taking the policy.

We are, therefore, unable to consider your representation favourably and we inform you that repudiation of your claim and cancellation of the policy are in order”.

 

12.           The claim of the complainant has been repudiated by the OP on the ground of concealment of material facts with regard to his health and with regard to not to disclose the previous insurance policy at the time of filling the proposal form.

13.           The onus to prove its case, relied upon the OP. To prove its case OP has placed on record ultra sound report Ex.R9 of Ivy Hospital Super Specialty Healthcare, Mohali (Pb.), which reproduced as under:-

                USG KUB

Kidney- Righty kidney is small in size measuring 7.3x4.0 cm and shows raised cortical echogenicity

Corticomedullary differentiation is lost

No calculi/hydronephrosis is seen

Left Kidney is borderline in size measuring 8.2x4.4.cm and shows raised cortical echogenicity. Corticomedullary differentiation is lost

No calculi/hydronephrosis is seen

GAL-BLADDER: is partially distended at the time of examination with normal wall thickness. No e/o calculus/mass seen.

PROSTATE: is normal in size outline and echotexture. No focal lesion is seen.

IMPRESSION:

BILATERAL CHRONIC RENAL PARENCHYMAL DISEASE.

OP also relied upon the report Ex.R13 of Dr.S.Guru Mageswaran. The opinion of the said doctor reproduced as under:-

.       USG dated 30.04.2018 shows small kidneys on both sides, USG dated 01.05.2018 shows loss of corticomedullaty differentiation.

.       Hemoglobin is only 9.4 gm/dl dated 18.04.2018.

All the above indicate chronic long duration renal pathology prior to January, 2018.

14.           From the abovesaid reports, it has been proved on the record that complainant had longstanding ailment prior to obtaining the insurance policy which cannot be developed in short period. Such type of disease cannot be developed in short duration, but same has taken a long time for developing. Hence, it has been proved on record that at the time of taking the policy complainant has concealed the true and material facts with regard to his health.

15.           The next plea taken by the OP is that insured has purchased another parallel policy from United India Insurance Company Limited and the said fact has not disclosed by the insured at the time of taking the policy in question. The said fact has also admitted by the complainant in para no.6 of his complaint. Both the policies have been taken by the insured within two months firstly on 07.11.2017 and policy in question on 19.01.2018. It creates the doubt in our mind that the complainant was having any disease at that time as the reason for obtaining two different policies within two months is best known to the policyholder. As per Section 45 of the Insurance Act, 1938 it is mandatory for a policyholder to declare the other policy or policies held by him/her in the claim form with the claiming insurer. In this regard, we are fortified with the observations of Hon’ble Supreme Court in case titled as Branch Manager, Bajaj Allianz Life Insurance Company Ltd. and others Vs. Dalbir Kaur in civil appeal no.3397 of 2020 decided on 09.10.2020 wherein Hon’ble Supreme Court held that a policy of insurance is governed by the principles of utmost good faith. The suppression of material facts by the insured/policyholder entitles the OP to repudiate the policy under section 45 of the Insurance Act. The said authority is fully applicable to the facts of the present case.

16.           It is settled principle of insurance law that contract of insurance is a contract uberrima fides and utmost faith must be observed by the contracting parties. Every material fact must be disclosed, otherwise there is good ground for rescission of contract. If, there are misstatements or suppression of material facts, the policy can be called into question. In this regard reference may be made to the judgment of the Hon’ble Supreme Court in case titled Satwant Kaur Sandhu Versus New India Assurance Co. IV( 2009) CPJ 8 (SC) and judgment of Hon’ble National Commission in case Life Insurance Corporation of India and another Versus Bimla Devi Revision Petition no.3806 of 2009 decided on 12.8.2015.

17.           In the present case complainant has concealed the true and material facts at the time of obtaining the policy in question. Hence, we are of the considered view that OP has rightly repudiated the claim of the complainant. Thus, we found no deficiency in service on the part of the OP, while repudiating the claim of the complainant. Thus, present complaint is devoid of any merits and same deserves to be dismissed.

18.           Thus, as a sequel to abovesaid discussion and in view of law cited above, we do not find any merits in the complaint and the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:02.05.2022

 

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                    Member                         Member