Haryana

Yamunanagar

CC/261/2015

Pawan Kumar S/o Mangat Rai - Complainant(s)

Versus

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

S.C.Jindal

24 Oct 2017

ORDER

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

 

                                                     Complaint No.261 of 2015.

                                                     Date of institution: 27.07.2015.

                                                     Date of decision: 24.10.2017.

Pawan Kumar Gupta, aged about 72 years, s/o Sh. Mangat Rai Gupta, resident of # No.375, Pandit Raja Ram Gali, Jagadhri Road, Yamuna Nagar-135001.

                                                                                                 …Complainant.

                          Versus

Star Health and Allied Insurance Company Ltd., Office No.3, Ganpati Building, Opposite Madhu Hotel, Yamuna Nagar through its Branch Manager.

 

 ….Respondent.

BEFORE     SH. SATPAL, PRESIDENT

                    SH. S.C.SHARMA, MEMBER.

                    SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:     Sh. S.C.Jindal, Advocate, for complainant.   

                 Sh. Pankaj Sharma, Advocate for the OP.

               

                ORDER

         

(SATPAL, PRESIDENT)

                The complainant-Pawan Kumar has filed this complaint under section 12 of the Consumer Protection Act 1986, as amended up to date (hereinafter respondents will be referred as OPs). 

2.             Brief facts of the complaint, as alleged by the complainant, are that he purchased one Medi-claim Coverage for himself vide policy No.P/211120/01/2014/000837 for the period w.e.f. 11.11.2013 to 10.11.2014 after paying a premium of Rs.14,494/- for a sum insured of Rs.3,00,000/-.  It is alleged that the Op issued the policy but never issued or supplied the terms and conditions with this policy to the complainant.  It is further alleged that on 04.05.2014, the complainant went to a relative in Ponta Sahib in connection with a death and during sad moments there, he felt pains in chest at Ponta Sahib.  The complainant went to Max Super Speciality Hospital, Mohali for examination and check-up and on examination and after going through all the investigations and reports of patient, he was found to be suffering from heart problem and advised surgery.  The complainant was admitted there on 05.05.2014 and his surgery was performed on 07.05.2014 and discharged on 12.05.2014.  The complainant paid Rs.2,16,505/- for the said operation/surgery including all the tests and surgery.  The complainant lodged the claim with the Op and submitted all the necessary documents but the Op repudiated the claim of complainant vide letter dt. 25.06.2014.  The said repudiation of claim is wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of Op and prayed for acceptance of complaint with the direction to Op to pay Rs.2,16,505/- including bonus alongwith interest @ 24% p.a. and further to pay Rs.50,000/- as compensation for harassment and mental agony as-well-as a sum of Rs.22,000/- as litigation charges.  Hence, this complaint.

3.            Upon notice, the OP appeared and filed written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that at the time of purchase of policy, the ailment of the complainant was a pre-existing disease which he concealed from the Op and even otherwise, his medical reports/CAG shows severe, multiple, chronic, longstanding coronary artery disease denoting pre-existing disease with symptoms and the complainant suppressed the medical history/health details and thus, as per condition No.7 of the policy, the Op is not liable for payment of any claim and accordingly, the claim of complainant was rightly repudiated by the Op.  There is no deficiency in service on the part of Op.  On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.             Ld. Counsel for the complainant tendered in evidence affidavit of complainant as Annexure-CA and documents Annexure-C1 to Annexure-C11 and closed evidence on behalf of complainant. 

5.             On the other hand, ld. Counsel for the Op tendered in evidence affidavit of Sh. P.C.Tripathy, Zonal Manager as Annexure-RW1/A alongwith documents Annexure-R1 to Annexure-R5 and closed evidence on behalf of Op.    

6.             We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.

7.             After hearing ld. Counsel for both the parties and on perusal of record, the foremost question which arises before us for consideration is that whether the complainant concealed the true facts regarding his health/pre-existing disease from the Op company at the time of taking the policy and the claim of complainant was repudiated by the Ops rightly or not?

             The version of the complainant is that he purchased one Medi-claim Coverage policy after paying a premium of Rs.14,494/- for a sum insured of Rs.3,00,000/-.  On 04.05.2014, the complainant felt pains in chest at Ponta Sahib.  The complainant went to Max Super Speciality Hospital, Mohali for examination and check-up and on examination and after going through all the investigations and reports of patient, he was found to be suffering from heart problem and advised surgery.  The complainant was admitted there on 05.05.2014 and his surgery was performed on 07.05.2014 and discharged on 12.05.2014.  The complainant paid Rs.2,16,505/- for the said surgery including all the tests and surgery.  The complainant lodged the claim with the Op and submitted all the necessary documents but the Op repudiated the claim of complainant vide letter dt. 25.06.2014.  Ld. Counsel for the complainant submitted authority cited in 2016(4) CLT page 372 (State Commission, U.T., Chandigarh) titled as SBI General Insurance Company Ltd. Vs. Balwinder Singh Jolly & another, wherein it has been held that “Insurance claim (Medi-claim)-Hypertension-Pre-existing disease-Age of insured when mediclaim insurance policy was issued was more than 45 years-Held-In that event, as per instructions issued by Insurance Regulatory & Development Authority of India (IRDAI), it was duty of the Insurer to put insured to thorough medical examination-Claim raised after issuance of Insurance of policy cannot be rejected on account of non-disclosure of the fact of pre-existing disease when policy was obtained.”  Ld. Counsel for the complainant also submitted authority cited in 2015(1) CLT page 590 (Haryana State Commission) titled as Star Health and Allied Insurance Co. Ltd. Vs. Asha & others, wherein it has been held that “Insurance policy-Terms and conditions-Exclusion clause-Held-It is the duty of the insurance company to prove that these terms and conditions were explained to the insured when cover note was issued-No where mentioned therein that the insured was explained about this exclusion clause-With very small letters clauses, warranties, endorsement, etc. are mentioned-Insurance policy is issued by the company lateron-It is well settled that the company, who is taking specific plea about repudiation of any claim is to prove that the exclusion clause was explained the consumers-When the Ops have failed to prove this fact they cannot derive any benefit from this exclusion clause.”  Ld. Counsel for the complainant also submitted authorities cited in 2000(1) CPJ page 1 (SC) titled as M/s. Modern Insulators Ltd. Vs. OIC and 2015(2) PLR page 75 (Punjab and Haryana High Court) titled as OIC Vs. Naresh Sharma and others and in the said authorities, the similar question of law have been discussed.       

                On the other hand, the plea of the Op is that the ailment of the complainant was a pre-existing disease which he concealed from the Op and even otherwise, his medical reports/CAG shows severe, multiple, chronic, longstanding coronary artery disease denoting pre-existing disease with symptoms and the complainant suppressed the medical history/health details and thus, as per condition No.7 of the policy, the Op is not liable for payment of any claim and accordingly, the claim of complainant was rightly repudiated by the Op.  Ld. Counsel for the Op submitted authority cited in 2009(1) CLT page 488 (NC) titled as Angoori Devi Vs. LIC of India & others, wherein it has been held that “Suppression of material fact-The Insurance Company could establish the pre-existing disease by means of cogent hospital record-Order of the District Forum allowing the complaint rightly upset by the State Commission.”.  Similarly, ld. Counsel for the Op submitted authorities cited in 2009(3) CLT page 221 (Consumer Disputes Redressal Commission, Union Territory, Chandigarh) titled as OIC Vs. Balwanti Devi Dahiya; 2009(4) CPJ page 77 (NC) titled as Best Food International Vs. National Insurance Co. Ltd. & another and in the said authorities, the similar question of law have been discussed.               8.            We have perused the document Annexure-C4 which is discharge summary of complainant wherein it is clear that the complainant was admitted in the hospital with the complaint of chest pain with radiation to left arm since yesterday c/o breathlessness on exertion since 4/5 days.  Pt. had increased B/P reading yesterday.  No H/O syncope/sweating.  No H/O HTN, No H/O DM type2. 

                 Past History-No medical illness/Non-smoker/Non-alcoholic. Meaning thereby when the complainant was admitted in the Max Super Speciality Hospital Mohali for his treatment, only then he came to know that he was suffering from heart problem because in the I.P.Cardiology/Summary, it has been clearly mentioned that the complainant felt breathlessness and exertion since 4/5 days.  Moreover, the doctors of the hospital also mentioned in the column of past history that the complainant was having no medical illness/non-smoker and non-alcoholic.  No doubt, ‘Coronary Artery bypass grafting’ of complainant was conducted on 07.05.2014 which confirms that he had a long standing heart problem but while filling-up the proposal form, facts about existence of an ailment was not concealed because it is known that, many times the healthy person are unaware of such silent ailments of diabetes, hyper tension and heart problem, which come to their knowledge first time during health check-up camps or in any emergent situation.  Thus, the Op cannot apply a hard and fast rule to presume that the life assured was suffering from pre-existing disease prior to obtaining the insurance policy.  In the present case, in the discharge summary of hospital, it is clearly mentioned that when the complainant was brought to the hospital, the complainant felt breathlessness and exertion since 4/5 days only.  Besides this, the complainant was not suffering from diabetes/hypertension/any illness.  In the present case, the age of complainant was more than 70 years when medi-claim insurance policy was issued.  In that event, as per instructions issued by Insurance Regulatory and Development Authority of India (IRDA), it was the duty of the insurance company to examine medically the insured when the complainant is more than 70 years old.  The Op has also failed to produce any cogent evidence to prove that prior to date of taking the policy, the complainant was suffering from any illness/heart problem and he was getting any treatment and that fact was in the knowledge of complainant and he intentionally concealed the same.  There is no dispute with regard to the law laid down in the judgments referred by ld. Counsel for the Op, but the same are not applicable to the facts of present case because in the present case, the Op has failed to produce any cogent evidence to the effect that the complainant had knowledge of heart problem and had intentionally concealed the disease or treatment.  It is pertinent to mention here that except the opinion of Dr. M.M.Rathina Sabapathy, M.S.General, M.Ch. (Cardio-Vascular & Thoracic) (Annexure-R2) wherein the doctor after verification of medical records of complainant opined that severe triple vessel disease involving LAD-total occlusion and RCA total occlusion and symptoms of breathlessness indicates long standing coronary artery disease.  We have also perused the aforesaid document, wherein the doctor has mentioned that the complainant admitted in Max Health Care Hospital with complaints of breathlessness for 5 months duration, whereas we have also gone through the cardiology summary Annexure-C4 wherein it is clearly mentioned by the treating doctor that “the patient/complainant admitted in the hospital with a complaint of chest pain with radiation to left arm since yesterday.  C/o breathlessness on exertion since 4/5 days.”  Whereas, the Op company has relied upon the opinion of the expert doctor (Annexure R-2) wherein it has been mentioned that the complainant was having symptom of  breathlessness for 5 months duration.  However, the complainant was feeling breathlessness and exertion only since 4/5 days before his admission.  Hence, the document/expert opinion lacks credibility.  Further, the Op has also not filed any affidavit of the expert doctor, who gave this opinion.  The Op company has also not placed the relevant document on record which they relied upon wherein it is mentioned that the complainant was suffering from breathlessness since 5 months.  Hence, the aforesaid opinion (Annexure R-2) is not admissible in the eyes of law.  So, the Op has failed to establish that the complainant was suffering from any pre-existing heart disease before taking the policy and he has concealed the true facts at the time of taking the policy and thus, the Op is deficient in providing services to the complainant.

9.             Now the next question which arises before us for consideration is  as to what amount the complainant is entitled to be reimbursed for the treatment taken by him in Max Super Speciality Hospital, Mohali from 05.05.2014 to 12.05.2014.  We have perused the evidence tendered by the complainant but there is no document on the record from which it could be ascertained that what amount was incurred by the complainant at the time of taking treatment in the hospital.  In the prayer clause, the complainant has demanded Rs.2,16,505/- on account of treatment charges.  The Op has also not placed on file any document relating to the  amount demanded/claimed by the complainant in lieu of his treatment. 

10.            Thus, as a sequel of above discussion, we partly allow the complaint of the complainant.  However, in the absence of any bill relating to the expenses incurred by the complainant on his treatment, we direct the Op to pay the admissible amount which was incurred by the complainant in Max Hospital, Mohali during his admission vide S.S.N.No.66953, IP No.19162 alongwith interest @ 6% p.a. from the date of filing of this complaint till its realization on submission of relevant bills/documents by the complainant.  The Op is also directed to pay Rs.5,000/- as compensation for harassment and mental agony as-well-as Rs.2200/- as litigation charges.  Let the order be complied with within 30 days from the date of communication of this order.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.     

Announced in open court:

Dated: 24.10.2017.

                                                          (SATPAL)

                                                          PRESIDENT.

 

 

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

MEMBER                                          MEMBER