Haryana

Yamunanagar

CC/940/2012

Jayanti Prakash S/o.Nand Kishore - Complainant(s)

Versus

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

K.B.Mehta

08 Jun 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 940 of 2012

                                                                                                Date of institution: 05.09.2012

                                                                                                Date of decision: 08.06.2017.

Jayanti Parkash Goenka son of late Nand Kishore, aged 62 years R/o Jayanti Timber Industries, Saharanpur Road, Yamuna Nagar.                                                                                                                                                                                  

                                                                                                                       …Complainant.

                                      Versus

1. Star Health & Allied Insurance Company Ltd. through its Managing Director having its corporate/Registered office at No.1, New Tank Road, Valluvarkottam High Road, Hungambakkam, Chennai-34.
2. In charge Grievance Department of Star Health & Allied Insurance Company Ltd. through its Managing Director having its corporate/Registered office at No.1, New Tank Road, Valluvarkottam High Road, Nungambakkam, Chennai-34.
3. Manager of Star Health & Allied Insurance Company Ltd. at SCO No. 257, 2^nd Floor, Sector-44-C, Chandigarh.
4. Branch Manager of Star Health & Allied Insurance Company Ltd. at Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar.                                                                                                                                                            

                                                                                                                        …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT SAROJ BALA, MEMBER

 

Present: Sh. Ashwani Batra with Sh. K.B.Mehta, Advocate, counsel for complainant.

               Sh. Pankaj Sharma, Advocate, counsel for respondents.   

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     Complainant Jayanti Parkash has filed the present complaint under section 12 of the Consumer Protection Act 1986 against respondents (herein after Respondents will be referred as Ops)   

2,                     Brief facts of the present complaint, as alleged by the complainant, are that complainant being a senior citizen purchased a medi-claim insurance policy namely “Star Senior Citizen Red Carpet Insurance Policy” bearing No. P-161113/01/2011/000791 for a sum insured of Rs. 2,00,000/- valid from 20.07.2010 to 19.07.2011 from the OPs Insurance Company. Before issuing the policy in question, the complainant was got medically examined and having been found the complainant quite fit and healthy, the OPs Insurance Company insured the complainant. In the last week of July, 2010, the complainant happened to visit at Ahmedabad to his son and when the complainant was taking a bath, he slipped in bathroom and got injuries on hip and consulted Dr. Shalve Hsoptial, Ahmadabad in OPD on 01.08.2010 and after medically examination/x-ray of the left hip joint, it observed that complainant was suffering from fracture # in left hip joint and medical authorities recommended total hip replacement for which he deposited the required amount in the hospital on 03.08.2010 vide receipt No. 9015021. Thereafter, the complainant was admitted indoor patient on 04.08.2010 and he was operated for left side total hip joint replacement surgery on 05.08.2010, having metal implant in Situ in left hip and complainant was discharged from hospital on 12.08.2010. The complainant had paid Rs. 2,36,817/- to the hospital for his treatment vide receipt No. 9011082 dated 12.08.2010 and after that the complainant submitted all the bills amounting to Rs.2,36,817/- alongwith supporting documents in the office of the Ops and requested to make the payment under the policy in question but the complainant was very astonished to receive a repudiation letter dated 09.11.2010 (Annexure C-1) whereby medical claim of the complainant was declined alleging that the same is in respect of pre-existing disease/past surgical history and the same is outside the scope of insurance policy in question. Lastly, prayed for directing the Ops to pay the claim amount by setting aside the repudiation letter dated 09.11.2010 and also to pay compensation as well as litigation expenses.  

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections such as: - complaint is not maintainable; complainant has no locus standi to file the present complaint; complainant has concealed the true and material facts from this Forum. The true facts are that the complainant obtained the mediclaim Insurance policy bearing no. P/161113 /01 /2011/ 000791 for the period from 20.07.2010 to 19.07.2011 from the OPs Insurance Company. A claim was received from the complainant regarding his admission for treatment of post Traumatic Acetabulum with protrusion of L Hip at Shalby Hospital, Ahmedabad. The complainant was admitted there on 04.08.2010 and discharged on 12.08.2010. The diagnosis was post traumatic fracture ascertabulum with protrusion of left hip. Left hip total replacement was done on 05.08.2010. The treatment /discharge summary of the case issued by the hospital showed past surgical medical history and revealed to be known case of diabetes mellitus and past surgical history of fracture # ascertabulum treated with traction in January, 2010.  X-ray pelvis taken on 02.08.2010 reveals that bones show severe osteoporosis. So, the present problem of fracture  ascertabulum is a clearly complication of previous injury which happened in January, 2010 before obtaining the insurance policy on 20.07.2010. As per exclusion clause No.1 of the policy, the claim of the complainant has been rightly repudiated and on merit it has been mentioned that the complainant was told that as per exclusion clause No.1 of the policy, company is not liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all pre-existing disease as defined in the policy existing and suffered by the insured person for which treatment or advise was recommended or received during the immediately preceding 12 months from the date of proposal. The onset of disease in this case is prior to the inception of the policy and therefore, the claim being inadmissible under exclusion No.1 of the policy stands rightly rejected and rest contents of the complaint were controverted and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.  

4.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photo copy of claim repudiation letter dated 09.11.2010 as Annexure C-1, Photo copy of receipt No. 9011082 dated 12.08.2010 of Rs. 2,36,817/- as Annexure C-2, Photo copy of Insurance Policy as Annexure C-3, C-4 and C-5 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs Insurance Company tendered into evidence affidavit of Sh. P.C. Tripathy, Zonal Manager, Star Health & Allied Insurance Co. as Annexure RA and documents such as Photo copy of insurance policy as Annexure R-1, Photo copy of Hospital visit report as Annexure R-2, Photo copy of treatment record alongwith discharge summary as Annexure R-3 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. Counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that the complainant had purchased a mediclaim insurance policy namely Star Senior Citizen Red Carpet Insurance Policy bearing No. P-161113/01/2011/000791 for a sum insured of Rs. 2,00,000/- valid from 20.07.2010 to 19.07.2011 from the OP No.1 which is duly evident from the copy of insurance policy Annexure C-3/R-1. It is also not disputed that complainant remained under treatment and admitted in Shalby Hospital, Ahmedabad from 04.08.2010 to 12.08.2010 which is duly evident from the discharge summary Annexure R-3. It is also not disputed that complainant submitted the medical bills of the Shalby Hospital amounting to Rs 2,36,817/-(Annexure C-2) with the OPs Insurance Company for the reimbursement of the same under the policy.

8.                     The only version of the complainant is that the OPs Insurance Company has wrongly and illegally repudiated the claim of the complainant vide repudiation letter dated 09.11.2010 (Annexure C-1) on the false ground that complainant was having past surgical history of fracture ascertabulum treated with traction in January, 2010. Learned counsel for the complainant lastly, prayed for acceptance of complaint and referred the case law titled as New India Assurance Company Ltd. Versus Priya Blue Industries Pvt. Ltd. 2011(2) Apex Court Judgments page 60 (S.C.) wherein it has been held that :-

“C.P. Act, 1986, S.2- Insurance Claim- Plea of suppression of material facts and repudiation of claim raised for the first time at the time of filing written statement which is only an afterthought- No evidence on record to support such plea- Evidence on record well considered-Award passed by National Commission, upheld.”

9.                     On the other hand, learned counsel for the OPs argued at length that the claim of the complainant has been rightly repudiated by the Ops Insurance Company vide letter dated 09-11-2010 (Annexure C-1) as the complainant was having past surgical history of fracture # ascertabulum treated with traction in January, 2010 which is prior to inception of policy and the present treatment is continuation of the said surgery. Learned counsel for the Ops further argued that as per exclusion clause No.1 of the policy, the insurance company is not liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all pre-existing disease/conditions existing and for suffered by the insured person for which treatment or advise was recommended by or received during immediately preceding 12 months from the date of proposal. Learned counsel for the Ops further argued that in the present case, the complainant purchased the insurance policy on 20.07.2010 and got consulted Shelby Hospital; Ahmadabad in OPD on 02.08.2010 and after that got replaced his total hip joint on 05.08.2010. Meaning thereby that complainant got the treatment of hip replacement within a period of 10-11 days from the date of commencement of the policy in question. Learned counsel for the OPs further draw our attention towards the treatment record and discharge summary of Star Shelby Hospital; Ahmadabad Annexure R-2 and R-3 wherein it has been mentioned that

“Mr. Jyanti Prakash Goenka, 61 years old male patient presented to Shalby Hospital on 04.08.2010 with chief complaints of pain in left hip joint. The patient was examined and evaluated by orthopedic surgeon Dr. V.I. Shah & team and was advised appropriate laboratory investigations and x-rays of left hip joint. Investigations suggested that the patient was suffering from post traumatic fracture acetabulum with protrusion of the left hip and surgical intervention in terms of left total hip replacement surgery was advised and planned. The patient was admitted to Shalby Hospitals on 04.08.2010 under care of Dr. Vikram Shah & team. Thereafter, the patient was thoroughly evaluated and past medical history revealed to be known case of diabetes mellitus and past surgical history of fracture acetabulum treated with traction in January, 2010, traction removed in March 2010.”

 And argued that from the above noted history it is clear that, the complainant was having past surgical history since January, 2010 i.e. before taking the insurance policy in the month of July 2010 hence, the claim of the complainant has been rightly repudiated by the Ops Insurance Company. Lastly, learned counsel for the Ops referred the case law titled as Angoori Devi Versus LIC of India & others, 2009(1) CLT Page 488, Oriental Insurance Company Ltd. Versus Balwanti Devi Dahiya, 2009(3) CLT page 221, Best Food International Versus National Insurance Co. ltd. and Another, IV(2009) CPJ page 77 (NC) and Sr. Divisional Manager,Life Insurance Corporation of India and another Versus Mohini Devi, 2012(1) CLT page 387 H.P. State Commission.

10.                   After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs as from the perusal of treatment record (Annexure R-2) and discharge summary dated 12.08.2010 (Annexure R-3) issued by the Shelby Hospitals, Ahmadabad, it is duly evident that the complainant was known case of diabetes mellitus and past surgical history of fracture acetabulum treated with traction in January, 2010, Traction removed in March, 2010. Further, it is also not disputed that the complainant obtained the insurance policy in question on 20.07.2010 and got treatment for total hip replacement from 02.08.2010 i.e. within a period of 11 days from the purchase of insurance policy in question, meaning thereby that the complainant obtained the insurance policy in question just to cover the expenses of replacement of hip by suppressing the material facts from the insurance company. Further, No cogent evidence has been placed on file by the complainant in support of his version that he slipped in the bathroom in the last week of July, 2010. Even, the complainant did not bother to place on file any OPD slip issued by the hospital on 02.08.2010 i.e. on first day when the complainant visited the hospital due to the reason best known to him. However, we have gone through the discharge summary wherein also no such incident regarding slipping in the bathroom and receiving the injuries have been mentioned by the treating doctor. So, we are of the considered view that the complainant has concocted a false story regarding slipping in the bathroom just to bring the case in the purview of insurance policy in question otherwise it is duly evident from the medical record placed on file by the OPs (Annexure R-3) that complainant was having past surgical history of fracture asetabulum treated with traction in January, 2010 and traction removed in March 2010. The case law referred by the complainant is not disputed but not helpful in the present case. As in the present case, the Ops Insurance Company has duly placed on file treatment record/discharge summary issued by the hospital in support of their version. The case law titled as Oriental Insurance Company limited Versus Balwanti Devi Dahiya,(supra) is fully applicable to the facts of the present case wherein it has been held that

‘’Medi-Claim Policy- Insurance Claim- Repudiation- Suppression of material fact- Admission of respondent in the hospital nowhere mentioned her having sustained any injury and the admission resultant therefrom- Though it is categorically mentioned that the complainant is an old patient suffering from painful knees- The records leads to the conclusion that the insurance policy was taken by the complainant with a view to cover the medical expenses for the replacement of the knees- No deficiency can be alleged if the complainant has got the policy by omitting deliberately to mention such conditions in the proposal form which were very vital for her to disclose- Order of the District Forum allowing the complaint liable to be set aside.

11.                   Resultantly, in the circumstances noted above and after going through the case law referred by the counsel for the Ops, we are of the considered view that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide letter dated 09.11.2010 (Annexure C-1). Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced: 08.06.2017.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF, YAMUNANAGAR

 

 

                   (VEENA RANI SHEOKAND)             (S.C.SHARMA    )

                    MEMBER                                               MEMBER