Haryana

Panchkula

CC/178/2018

NISHANT GULATI - Complainant(s)

Versus

STAR HEALTH & ALLIED INSURANCE COMPANY LTD. - Opp.Party(s)

SHAM SINGH CHHOKAR

24 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

 

                                                       

Consumer Complaint No	:	178 of 2018
Date of Institution	:	11.10.2018
Date of Decision	:	24.09.2019

 

 

1.     Nishant Gulati aged about 19 years s/o Sh. Satish Gulati r/o H.No.574, Sector-11, Panchkula.

2.     Satish Gulati aged about 50 years s/o Sh. Sardara Mal Gulati r/o H.No.574, Sector-11, Panchkula.

                                                                           ….Complainants

 

Versus

1.     Star Health and Allied Insurance Company Ltd. through its authorized officer, new Tank Street, Valluvar High Road, Nungambakkam, Chennai.

2.     Star Health and Allied Insurance Company Ltd, through its authorized officer, SCO No.130-131, 4^th Floor Sector 34-A, Chandigarh.

3.     Vipin Manocha, Agent, Star Health and Allies Insurance Company Ltd. Investgate Financials, SCO No.288, 1^st Floor, Sector-20, Panchkula, Haryana

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh. Shyam Singh Chhokar, Advodate for complainant.   

Sh. Gaurav Bhardwaj, Advocate for OPs No.1 & 2

OP No.3 already ex-parte vide order dated 12.12.2018.

 

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the OP No.3   i.e. agent of the company approached to the complainant no.2 for sale of an insurance policy in the name of health insurance i.e. Family Health Optima Insurance Plan UID No.IRDAI/HLT/SHAI/P-H/VIII/129/2017-18 (called as policy) and he assured to give world class services and under the assurance of OP No.3 the father of the complainant got ready to purchase the said policy. The complainant no.2 purchased the said policy by paying an amount of Rs.17,635/-vide cheque no.097878 dated 06.11.2017 of Central Bank of India, Sector-10, Panchkula. The complainant no.2 stood proposer of the policy and as per the proposal form the size of the family was 2A+1C i.e. Satish Gulati (Father of the complainant), Bharti Gulati (mother of complainant no.1) and Nishant Gulati(complainant no.1) and the OP No.3 sold the said policy to the complainant no.2 on dated 06.11.2017. The OP No.1 issued the policy No.P/211100/01/2018/001953 on dated 07.11.2017.  The complainant no.1 after passing 10+2 examination planned to go to Australia for higher studies (Hospitality Management). The complainant no.1 received offer letter from LE CORDON BLEU Australia and deposited the requisite fee amounting to $14074 AUD on dated 22.11.2017 as per schedule. The complainant no.1 was gotten medically examined from the Doctor mentioned in the list of Australian Embassy (Dr. Shobha Kansal). The complainant visited the doctor on dated 07.12.2017. Dr. Shobha Kansal called complainant no.2 and told that he had some doubt regarding the right lung of complainant and suggested him for NCCT Chest and FEVI Test. The complainant no.1 got these tests conducted from Alchemist Hospital, Panchkula  and Jindal Clinic Chandigarh respectively. The complainant no.1 after the medical examination from Alchemist Hospital Panchkula and Jindal Clinic Chandigarh discussed the reports with Dr. Shobha Kansal and after discussing on suggestion of the said doctor the complainants visited Prof.(Dr.) Arvind Kumar, Shri Ganga Ram Hospital, New Delhi on dated 03.01.2018, where the complainant no.1 was suggested to undergo an operation. On the advice of the doctor, the complainant no.1 got admitted in Sir Ganga Ram Hospital on 08.01.2018. The complainant no.2 contacted the TPA Department who asked the complainant no.2 that pre-authorization request form is to be filled and send to the insurance company. The part II of Pre-authorization form was to be filled up by the doctor on duty and part III was asked to be signed by the complainant no.2 and thereafter the said form was sent to the Ops directly by the hospital through e-mail/online. After receiving the information from the hospital the OPs raised a query and asked the hospital to send the record of CT Chest images and the treatment record from when it was first time diagnosed. Since there was no record of previous treatment (as no disease was ever diagnosed before this and hence there was no question of previous treatment), however the report of CT Chest images were sent to the OPs. The OP Company repudiates the claim on dated 11.01.2018 on the ground of PED (Pre-Existing Disease).  This stand  of the Ops is baseless, false and frivolous as the complainants  does not have any past history of the any kind of disease, this fact was conveyed  to the OPs by the complainant No.2 by sending mail on dated  12.01.2018 itself and requested to the OP to reconsider the case of the complainants. The OPs again repudiated the claim of the complainants on the same ground on the same date i.e. 12.01.2018 without considering the genuine request of the complainants. The complainants and the family members were involved in the treatment of complainant no.1. The complainant No.1 remained admit in the hospital from 08.01.2018 to 19.01.2018. On the advice of the hospital the complainants stayed at Delhi after getting discharge on 19.01.2018 but the next very date i.e. 20.01.2018 again the complication  arose  to the complainant no.1 and he was forced  to get admitted  in the hospital and again undergo operation on dated 24.01.2018 and remained there from 20.01.2018 to 05.02.2018. The OPs repudiated the claim of the complainants and they cancelled the policy qua the complainant no.1 and issued new policy coverage for the rest of the persons vide letter dated 27.02.2018 and sent DD of Rs.1,929/- dated 26.02.2018 without any rule and regulation and without any law. Complainants have not encashed the said demand draft of Rs.1,929/- and the amount is still lying with the OPs. After complete treatment, the complainant no.1 discharged from the Sir Ganga Ram Hospital on dated 05.02.2018. In discharge summary it is clearly mentioned that there is no past history of breathlessness, chest pain, cough or hemoptysis. Due to the act and conduct of the OPs, the complainants have suffered a great mental agony, physical harassment and financial loss.   The OPs have also committed deficiency in service and unfair trade practice. Hence, the present complaint.

2.             Upon notice OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no action; and suppressed the material facts. On merits, OPs No.1 & 2 stated that the contract of insurance is based on the principles of ‘Uberrima Fide’ i.e. utmost good faith. The contract is based on the information provided by one party to the contract i.e. proposer/insured.  Based on the information provided by the insured, the insurance company accepts or rejects the proposal. The complainant no.1 was admitted in the hospital on 08.01.2018 and sought for cashless treatment in the 2^nd month of the policy. It was mentioned in the Pre authorization request form that the insured patient is suffering from Congenital Lobar Emphysema of Right Lung and presenting with the symptoms of breathlessness since 3 months. (The policy inception date is 07.11.2017). Meaning thereby that the complainant had the symptoms one month prior to the taking of the policy. The said facts was never disclosed  in the proposal form, thus the pre authorization  was rejected  and the policy  was cancelled on the ground  of non-disclosure of material facts, qua complainant no.1 only and proportionate premium of Rs.1,929/- was refunded. As per condition no.12, the policy is also liable to be cancelled if there is any misrepresentation or non-disclosure of material facts. Further, both the parties are bound by terms and conditions of the policy and as per Condition No.6, if there is any misrepresentation/non-disclosure of material facts 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. The terms and conditions were duly supplied alongwith the policy schedule. Further, the request for pre-authorization of the treatment was denied on the ground of non-disclosure of the facts, as the patient had the record of breathlessness, since three months i.e. prior to inception of the policy. Prior to that, a query dated 10.01.2018 was also raised with regard to the said disease and the complainant was asked to submit the previous medical record and a letter from the treating doctor as to when the patient was first diagnosed with congenital lobar emphysema alongwith CT scan images but the same were not provided and the pre-authorization was rejected. The complainant was still under treatment and he had the option of getting re-imbursement after submitting bills in original and alongwith medical record with claim for consideration but the complainant failed to provide material information regarding his health and ailment in the proposal form, the policy was duly cancelled. Moreover, even if the claim is found payable, then also the amount payable is only Rs.5,00,000/-after standard deductions as per policy, as the sum insured i.e. the limit of coverage is only Rs.5,00,000/- as per the policy. Thus, there is no deficiency in service on the part of Ops No.1 & 2 and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint.

3.             To prove his case, the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-17 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R1/A along with documents Annexure R1/1 to R1/8 and closed the evidence.

4.             We have heard the learned counsel for both the parties, considered the written arguments filed by the parties and gone through the record minutely and carefully.

5.             The sole question to be decided by us in the present complaint, is, whether the complainant was suffering from the pre-existing disease of Congenital Lobar Emphysema of Right Lung prior to taking of health insurance policy namely Family Health Optima Insurance Plan UID No. IRDAI/HLT/SHAI/P-H/VIII/129/2017-18 (herein after called as the insurance policy) from OP covering the risk from 07.11.2017 to 06.11.2018 during the period of insurance. The OP has refused to accede to the request of the complainant with regard to the cashless treatment and further repudiated the claim vide rejection letter dated 17.01.2018 (Annexure R1/6) and letter dated 27.02. 2018 (Annexure C-12) respectively stating that the complainant did not reveal the medical history/details of Congenital Lobar Emphysema of Right Lung while submitting the proposal form with the OP at the time of taking the policy in question. 

6.            In the present complaint the main ground of the OP, while repudiating the claim of the complainant, is based upon the remarks made by Dr. Arvind Kumar while filling up part two of the Pre-Authorisation Request Form (Annexure C-8/R-1/2) wherein the complainant has been alleged to have been suffering from the ailment of breathlessness for the past three months. Therefore, we have to peruse the aforesaid Pre-Authorisation Request Form (Annexure C-8/R-1/2) minutely alongwith the other treatment record available on the file. 

7.             The learned counsel for the OP No.1 and 2, while reiterating the contentions has raised in the written statement supported with affidavits Annexure R-1/A and Annexure R-1/1 to R-1/8 contended that the complainant was suffering from the decease of Congenital Lobar Emphysema of Right Lung prior to the taking of the insurance policy as is evident from the observations made by Dr. Arvind Kumar while filling up part two of Pre-Authorisation Request Form (Annexure C-8/R-1/2) to the effect that the complainant was suffering from the ailment of breathlessness from the past three months. The learned counsel stated that the complainant was admitted in the hospital on 08.01.2018 and sought the cashless treatment in the second month of the insurance policy. The learned counsel further contended that the OP No. 1 and 2 has rightly repudiated the claim of the complainant as per condition No.6 of the insurance policy. It is stated that the company may cancel the policy on the grounds of mis-representation, non-disclosure of material fact as per clause No.12 of the insurance policy. The learned counsel vehemently contended that the contract of insurance is based upon utmost good faith i.e. Uberrima fides and thus, the complainant has been found violating the principle underlying the doctrine of disclosure and the rule of good faith. Concluding the arguments, learned counsel stated that the complaint is liable to be dismissed on the ground that the complainant has never provided the bills of the treatment to the OPs for claiming reimbursement of medical claims. It is submitted that even if the claim is found payable, then in that eventuality, policy amount i.e. Rs.5,00,000/- only would be payable subject to applicable deductions as per the policy.

8.             On the other hand, the learned counsel for the complainant, while controverting the assertions and contentions as raised by the OP, reiterated the facts as contained in the complaint as well as affidavit Annexure C-A along with Annexure C-1 to C-17 and contended that nothing was concealed from the OP by the complainant while availing the policy. The learned counsel asserted that the assertions of the OPs with regard to concealment of pre-existing decease prior to the taking of the policy stands negated in view of the clear recital of facts as contained in the discharge summary Annexure C-14 against the column of “History” wherein it was specifically mentioned that there was no history of breathlessness, chest pain, cough or haemoptysis.

In order to establish and prove the plea of pre-existing disease, the legal proposition is well settled that the burden of proof lies upon the person/party, who alleges about the existence of a particular fact and in the present case the OP has alleged that the complainant was having a pre-existing disease of Congenital Lobar Emphysema of Right Lung prior to taking of policy in question on 07.11.2017. It is a well settled proposition of law that the burden of proving the pre-existing disease lies upon the insurance company i.e. OP and the same has to be proved by it by way of adducing adequate, cogent and credible evidence relating to the treatment of pre-existing disease. It has also to be proved by the insurance company that the complainant/insured was well aware about the alleged pre-existing disease prior to the taking of insurance policy. The legal proposition is well settled that the insured is under an legal obligation to disclose and share each and every aspect pertaining to his health before obtaining the insurance policy but the obligation upon the insured extends only to the extent to which he is well aware about any facts/disease/ailments pertaining to his health. The Hon’ble Supreme Court in the case of Satwant Kaur Sandhu Vs. New India Insurance Co. reported in 6(2009) 8 SCC 316 observed that the obligation to disclose necessarily depends upon the knowledge one possesses.  The Hon’ble National Commission in the case titled as National Insurance Company Ltd.  Vs. Ashok Kumar Gupta reported in 2012(1) CPJ 547 observed as under:-

“C.Insurance- Utmost good faith-Duty of utmost good faith  in disclosing  the material  facts  lies with the insured- The only  exception is when  the insured  is and could not have been personally  aware  of the said material fact, including  any incipient disease”.

9.             We may rely upon the law reported in 2017 (1) CLT 24(NC) titled as Chand Ratan Lahoti & others Vs. Aviva Life Insurance Co. India, Ltd & anr. wherein it has been held by Hon’ble National Commission that the suspicion  howsoever  strong is not substitute for the  proof-Thus, in order to justify the repudiation  of the insurance claim onus lies heavily on the opposite party to establish  that the insured concealed his medical condition already known to him while submitting proposal  form for purchasing  the insurance policy.

10.            In view of the above stated legal proposition it has to be ascertained as to when factum of suffering from the disease of Congenital Lobar Emphysema of Right Lung came into the notice of the complainant. It is evident that the complainant had to go to Australia for higher studies and in this regard offer letter (Annexure C-3) from LE CORDON BLEU Australia is available on the record. It is not disputed that the complainant deposited a requisite amount i.e. $14074 AUD on dated 22.11.2017 as it is evident from Annexure C-4. It is also not disputed that before going to Australia it is a mandatory requirement for a person to get himself medically examined from any one of the doctor who is on the panel of Australian Embassy and in this regard complainant No.1 visited Dr. Shobha Kansal, who was on the panel of Australian Embassy, who advised the complainant to undergo the test of NCCT Chest and FEVI Test. As per the advice of above mentioned Dr.Shobha Kansal, the complainant got these tests conducts from Alchemist Hospital Panchkula whose reports are available on record Annexure C-6. In our considered opinion, the complainant No.1 got information regarding the disease of Congenital Lobar Emphysema of Right Lung first time when he underwent the above test of NCCT and FEVI Test.

11.            It is pertinent to mention here that if the complainant had been any notice or knowledge about the disease of Congenital Lobar Emphysema of Right Lung, then he would not have deposited the amount i.e. $14074 AUD on 22.11.2017.

12.            Since the OPs have taken the shelter of the plea of pre-existing disease and concealment of facts, so, it was incumbent upon the OPs to adduce cogent credible and adequate evidence on record to establish the plea of pre-existing decease. The OP No.1 and 2 have utterly failed to adduce any evidence on record except the Pre-Authorisation Request Form (Annexure C-8/R-1/2). The remarks made with regard to breathlessness from the past three months in the Pre-Authorisation Request Form (Annexure C-8/R-1/2) stands completely belied in the light of the clear recital of facts stated by doctor in the discharge summary Annexure C-14/C-15 in the column of “History” to the effect that there was no history of breathlessness, chest pain, cough of hemopthysis. For the sake of convenience and clarity, the history as recorded in discharge summary Annexure C-14/ C-15 is reproduced as under:-

                        “This is 18 years young healthy boy had planned for higher studies outside India. He underwent a chest X Ray as part of his medical requirement for VISA. CXR (8/12/2017) was suggestive of? Bullous lesion in right lung/? Righ pneumothorax with shift of mediastinum to opposite side. There was no history of breathlessness, chest pain, cough or hemoptysis. He then consulted a local physician, who adviced NCCT Thorax (8/12/21017), which was suggestive of right lung emphysema with mediastinal shift. He then came to Sir Ganga Ram Hospital for further evaluation and was admitted under our care”.

In view of the above, we have no hesitation to conclude that the complainant was not having any kind of knowledge or notice about the Congenital Lumbar Empyhsema of Right Lung Apart  prior to the obtaining of policy on  07.11.2017. The OP No.3 is not liable to compensate the complainant and hence, the present complaint is dismissed qua OP No.3.

 13.           In view of the above discussion we conclude that the denial of cashless claim as well as cancellation of policy by the OPs No.1 & 2 were  not valid and justifiable; Hence, there has been lapse and deficiency on the part of the OPs  No.1 & 2 while delivering  services to the complainant.

14.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To pay a sum of Rs.5,00,000/-(Rupees Five Lacs only)i.e. total insured amount to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay an amount of Rs.50,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

15.            The OPs  No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:24.09.2019

 

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                       President

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                                Satpal,                               

President