BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint No.197 of 2017

                                                                   Date of Inst. 03.07.2017

                                                                   Date of Decision: 28.01.2020

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, IInd Floor, Nirmal Complex, GT Road, Jalandhar.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. S. C. Sood, Adv. Counsel for the Complainant.

Sh. Nitish Arora, Adv. Counsel for the OP.

Order

Karnail Singh (President)

1. The instant complaint has been filed by the complainant, wherein alleged that the complainant had availed medical insurance policy regularly since 26.06.2009. Earlier the complainant had been insured with Life Insurance Corporation of India (Health Policy) for all these years and thereafter the complainant shifted his health policy from Life Insurance Corporation of India (Health Policy) to OP as party had assured better and prompt services in settlement of the claim and accordingly, believing the assurance of the OP the complainant got himself medically insured from OP with the Annual Family Health Optima Insurance Policy with effect from 26.07.2013 to 25.07.2014, which covered four members of the family of complainant and on the said occasion an amount of Rs.10,826/- paid as premium vide cheque No.890309 dated 25.07.2013. The complainant continued the medical insurance for the next year with the OP itself from 27.02.2014 to 26.07.2015. The only reason for shift of the Insurance Provider was the assurance of the OP as the complainant was also being regularly insured in a settled manner with Life Insurance Corporation of India. When the policy was taken the complainant had provided all the details to the OP and accordingly, on filing of the proposal form without concealing any fact. Unfortunately, during the subsistence of the said policy the complainant was detected Diabetes Mellitus, Post PCNL, Hematuria. Stone was also detected in the Kidney of the complainant and the complainant had to undergo rigorous treatment regarding his ailment. The complainant was treated initially at DMC Hospital, Ludhaina and further the complainant was treated at Srinath Kidney Center, Jalandhar. The entire subsequent treatment of the complainant has taken place at Srinath Kidney Center, Jalandhar. The complainant had earlier sought cashless cover, but the OP refused to pay the same as the OP alleged that Srinath Kidney Center, Jalandhar is not covered in the Hospitals wherein cashless facility is to be given. This in itself amounts to unfair trade practice and deficiency in service on the part of the OP. On the same occasion the complainant submitted a claim of Rs.3,27,353/- which was wrongly repudiated by the OP on the ground that the complainant had concealed facts regarding his health at the time when the policy was taken. However, OP had annually also insured the complainant with effect from 26.07.2015 to 27.07.2016. The complainant in the mean time challenged the repudiation before the Consumer Disputes Redressal Forum and in complaint case No.373 of 2015 and the said complaint was contested by the OP by alleging that the repudiation was valid and had been rightly done by the OP. However, after the long drawn litigation the Consumer Forum, vide order dated 14.09.2016 accepted the complaint and held that the repudiation of the claim by the OP was wrong and was set aside. It is pertinent to mention here that the OP not only lost the complaint, but also accepted the order passed by the Hon’ble Consumer Forum and deposited an amount of Rs.3,27,353/- along with costs in the Forum, which has been received by the complainant. Thus, the OP honour the claim and the complainant was fully satisfied without any excuse having been filed by the complainant. For all intents and purposes the said order dated 14.09.2016 became final.

2. That the OP had not only lost the case in the said complaint, but the OP has rather earlier insured the complainant and granted the policy from 26.07.2016 to 25.07.2016 and had to this effect also received the premium from the complainant. The OP instead of repudiation of the claim received the premium, but after the complainant filed the complaint on 28.08.2015, the OP issued a letter to the complainant cancelling his insurance policy and had also sent a draft of Rs.6304/- vide letter dated 09.10.2015. The said cancellation was totally illegal and the complainant also replied to the said letter on 23.01.2016 and said draft was never encahsed by the complainant as the OP had no right to resile of the insurance cover once the concluded contract had already come into existence, thereafter again for the period of 26.07.2016 to 25.07.2017 the complainant approached the OP for his insurance, but the OP refused to insure the complainant. Such refusal was totally unjustified and illegal in view of the order dated 14.09.2016 the entire repudiation done by the OP has also been discarded and the reason was also disbelieved. Unfortunately, during the period for which the insurance cover was refused, the complainant fell ill and had to seek treatment from Fortis Hospital, Mohali, Sahibzada Ajit Singh Nagar and remained admitted there from 07.08.2016 to 16.08.2016 upon which the substantial amount was spent and receipt to the extent of Rs.6,85,000/- is attached with the present complaint. The relevant record of admission is also attached alongwith the present complaint. The OP is liable to indemnify the said claim to the extent of Rs.5,00,000/- as the complainant had applied for the insurance upto the insured values of Rs.5,00,000/- and as such, the OPs are liable to pay the said amount to the extent of Rs.5,00,000/- to the complainant. The complainant had approached the OP for insurance, but the OP had wrongly refused to insure the complainant only on the ground that there was concealment by the complainant while taking the policy in the year 2014 to 2015 itself. That right to be insured is a legal right of the complaint and the OP cannot refuse to insure the complainant without any valid cause and reason and as such, the said refusal is not only illegal, but is also liable to be set aside and it may also be pertinent to mention here that even from 26.07.2016 to 25.07.2016 also the policy had been wrongly cancelled by the OP. The OP is bound by the guidelines and norms setup by IRDA and as such, the OP has wrongly refused to insure the complainant on a ground of concealment of pre-existing disease, which has also been disbelieved and accordingly, the act and conduct of the OP is tantamount to deficiency in service which gave necessity to file the present complaint with the prayer that the complaint of the complainant may be accepted and further prayed that award may kindly be passed in favour of the complainant for an amount claimed Rs.5,00,000/-, damages Rs.50,000/-, litigation expenses Rs.30,000/- and interest @ 15% per annum.

3. Notice of the complaint was given to the OP, who appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that no cause of action arisen in favour of the complainant to file the present complaint and further submitted that the present case is premature as the complainant had not submitted the required documents for the purpose of the claim despite of repeated requests by the answering OP. It is further averred that the relief sought in the present complaint is in violation of the terms and conditions contained in the policy. Therefore, the complaint is liable to be dismissed with exemplary costs. It is further alleged that the complainant had no locus-standi and cause of action to file the present complaint. On merits, the factum in regard to issuing of insurance policy for the period 26.07.2015 to 25.07.2016 is admitted, but the same has been allegedly cancelled qua complainant. In regard to claim of previous insurance policy for the period 2014-15, a complaint was filed by the complainant and the same was allowed and the awarded amount has been also admittedly paid by the OPs. Further, the OP alleged that the complainant was hospitalized on 07.08.2016 in Fortis Hospital, Mohali i.e. after 10 months of cancellation of the policy. Thus, no insurance cover is available for the insured during the period of the hospitalization as per condition 9 of the terms and conditions to the policy contract and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. Rejoinder not filed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-14 and closed the evidence.

6. Similarly, counsel for the OP tendered into evidence affidavit Ex.OP1/A alongwith some documents Ex.OP-1 to Ex.OP-5 and closed the evidence.

7. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant as well as gone through the case file very minutely.

8. In nutshell, the case of the complainant qua previous policy for the year 2014-15 and during the inception of the that policy, the complainant was remained admitted in hospital and after discharge from the hospital submitted a claim, which was repudiated and accordingly, the complainant filed a complaint, which was allowed and copy of the judgment is Ex.C-8 and award was passed and the said award was admittedly paid by the OP and during the pendency of that complaint, a further insurance of the complainant alongwith other family members was issued by the OP for the period 26.07.2015 to 25.07.2016 and copy of the said policy is available on the file Ex.C-4, but the said policy was cancelled by the OP on 09.10.2015, vide letter Ex.C-5 and even the complainant alleged that he further approached to the OP for issuing of insurance policy for the period 26.07.2016 to 25.07.2017, but the OP refused. There is no documentary evidence came on the file that the complainant ever approached to OP for issuing insurance policy for the period 26.07.2016 to 25.07.2017 and as such, this oral allegation of the complainant is not established, if so, then it have no value in the eyes of law. Further, the version of the complainant that during the inception of the policy i.e. 26.07.2015 to 25.07.2016, he again fell ill and remained admitted in Fortis Hospital, Mohali and he admitted thereon 07.08.2016 and also alleged that the insurance policy for the period 26.07.2015 to 25.07.2016 have been illegally and wrongly cancelled by the complainant, even after accepting the premium. This argument of the counsel for the complainant is having some value in the eyes of law because when premium is accepted, then the OP has no right to straight way cancel the policy except giving a patience hearing to the insured, but in this case, the OP never gave any notice or hearing to the complainant for cancellation of the policy for the period 26.07.2015 to 25.07.2016, so, for the argument if we considered that the policy for the period 26.07.2015 to 25.07.2016 remained alive in favour of the complainant, even then the complainant is not entitled for the treatment charges from the OP because the period of the said policy is upto 25.07.2016, whereas the complainant himself submitted in Para No.8 of the complaint that he admitted in Fortis Hospital, Mohali on 07.08.2016 to 16.08.2016, where he spent an amount of Rs.6,85,000/-, but the OP failed to indemnify the said claim of the complainant and as such, the complainant is entitled for that amount as well as compensation. We find that on 07.08.2016, there is no insurance policy issued by the OP in favour of the complainant, if so, then the complainant is not entitled for any relief from the OP and accordingly, we came to conclusion that the ruling referred by learned counsel for the complainant cited in 2001 (5) SLT 558 SC, titled as “Biman Krishna Bose Vs. United India Insurance Co. Ltd.”, is not helpful to the complainant, being reason the facts of that judgment are not identical to the facts of the case in hand.

9. In view of the above detailed discussion, the complaint of the complainant is without merits and accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

28.01.2020 Member President