Present:-

                         For the appellant  : Sh. Vinod Gupta, Advocate

                         For the respondent : None.

SMT.SURINDER PAL KAUR, MEMBER

                         This appeal has been preferred  by the appellant/ opposite party  against the order dated 21.04.2011 passed by  the District Consumer Disputes Redressal  Forum, Barnala  (in short “District Forum”), vide which the complaint filed by the complainant  under Section 12 of the Consumer Protection Act, 1986, (in short "the Act") was allowed  and the opposite party was directed to pay Rs 2,000,00/-, along with interest @ 9% per annum from the date of death of insured, and Rs.5,000/- as compensation.

2.                      Brief facts, stated in the complaint, are that Govinder Singh, husband of the complainant purchased Domiciliary Hospitalization Benefit Insurance Policy, No.404201/48/08/850000020, from opposite party (National Insurance Company). The same was issued after getting him medically examined.  As per the said policy her husband was entitled to receive cashless treatment in case of any ailment suffered by him. He suddenly fell ill and admitted in Apollo Hospital Ludhiana on 15.10.2009 and expired there on 28.10.2009. He never suffered from any disease prior to 15.10.2009.  No cashless treatment was given to him, as per the terms of the aforesaid policy. She spent huge amount on his treatment. After his death, she lodged the claim for reimbursement of the amount spent on his treatment; being the nominee under the policy. She submitted all the original documents along with bills of the amount spent on his treatment, but no amount was reimbursed to her by the opposite party.  That act of the opposite party amounts to deficiency in service. Ultimately, she filed the complaint before the District Forum for seeking the following directions:

(i) to refund the amount of Rs.5,84,017/- that was spent on the treatment of her husband;

(ii) to pay compensation  Rs.5,00,000/- for mental agony and harassment ; and

(iii) to pay Rs.50,000/-, as litigation expenses.

3.                      Upon notice, written reply was filed by the opposite party before the District Forum. It took the preliminary objections that the complainant  has no cause of action/locus-standi to file the present complaint against it. The same was bad for non joinder and mis-joinder of necessary parties as Vipul Med Corp TPA Pvt. Ltd. has not been made party in the complaint. It  admitted that insured Govinder Singh, fell ill and was admitted in Satguru Partap Singh Apollo (SPS) Hospital, Ludhiana on 15-10-2009 and expired there and no cashless treatment was given to him as per terms and conditions of the policy. While denying all other allegation made in the complaint, it pleaded that the insured was already suffering from disease prior to 15-10-2009. The policy was purchased by him with mala fide intention by concealing the  true facts of his previous existing disease/illness. On receipt of the request for pre-authorization for cashless facility for treatment of the insured from SPS Apollo Hospital, Ludhiana, Vipul Med Corp. Pvt .Ltd. (TPA) wrote a letter dated 19-10-2009 to the said SPS Apollo Hospital, Ludhiana that Vipul Med Corp was unable to inability to issue any authorization for cashless treatment of the ailment of the insured for the reason that  Diabetes Mellitus (DM) and Hypertension  (HTN) were present prior to the inception of the above said policy and the claim being related to heart disease was not payable as per terms and conditions of the policy. However, it was advised that the patient could have to pay the charges at the hospital and would send the bills and related documents in original and lodged reimbursement claim which would be processed and settled subject to the terms and conditions of the policy. Vide letter dated 16-12-2009, the bills along with claim form duly signed by the complainant were forwarded by it to Vipul Med Corp. Pvt .Ltd (TPA) Chandigarh. Vide letter dated 30-12-2009, TPA requested the complainant to send all the original documents along with original discharge summary and payment of receipt for early processing of the case, but he failed to comply with the said letter. After that reminders dated 25-01-2010 and 18-02-2010, were issued to her. She submitted the original bills i.e., retail invoice page 1 to 16 any AHEL Pharmacy detail bill page 1 to 15 and the same were sent to that TPA. When the complainant failed to submit the original discharge summary and receipt payment made to the hospital, TPA again issued a letter dated 17-03-2010 to her treating the same to be reminder 3rd informing that the case of the cashless treatment was rejected for the above said reason. In the month of May 2010, complainant approached it for return of original claim file. As such it wrote a letter dated 25.05.2010 to Med Corp TPA Pvt. Ltd.  to do the needful. As such entire claim file of the complainant was returned by the said Med Corp Pvt. Ltd. to which it was handed over to the complainant. There was no deficiency in service. No financial loss and mental agony had been caused to the complainant by their act. She was not entitled to any reimbursement from it. Dismissal of the complaint was prayed by it.

4.                      Both the sides produced evidence in support of their respective averments  before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide afore said order.

5.                      We have heard learned counsel for the appellant/opposite party as no one appeared on the behalf of the respondent/complainant and have carefully gone through the records of the case.

6.                      It was submitted by the learned counsel for the appellant/ opposite party that the District Forum failed to appreciate the evidence on the record that the deceased was suffering from pre existing diseases i.e. DM and HTN. The claim of the insured was not payable as per the policy terms and conditions no 4.1. The insured died due to heart attack and the hospital certificate in this regard was duly proved by summoning the concerned Doctor. It was wrongly concluded by the District Forum that the claim of the complainant could  not have been repudiated as there was no nexus between the cause of death and pre-existing disease whereas, the exclusion clause as applicable to any complication arising from pre-existing ailment/disease.

7.                    The gist of findings of the District Forum is contained in Para No.5 of the impugned order, which is reproduced below:-

"Even it is also not proved on record by OP, about the link Between cause of death and the disease suppressed by Late Sh. Govinder Singh. We feel, the OP has miserably failed to prove the link between the cause of death and the disease suppressed by Late Sh. Govinder singh."

Thus, according to the District Forum the opposite party failed to prove the direct nexus between the cause of death and the pre-existing disease. While advancing his arguments learned counsel for the opposite party has referred to certificate of Satguru Partap Singh Apollo (SPS) Hospital, Ludhiana, Ex. R-15 which was issued under the signature of the doctor. As per that certificate patient was a known case of Diabetes Mellitus and Hypertension from last 5 years. Can it be held on the basis of that certificate that the OP has been able to prove that complainant was suffering from pre-existing disease? Such like evidence was held reliable by the Hon'ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (IV) (2009) CPJ 8 (SC). It was observed in para no. 22 of that judgment as under:-

"We do not find any substance in the contention of leaned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital where the insured was treated. Apart from the fact that at no stage had the appellant pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the above said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly , even the declaration in the proposal form by the proposer authorities the insurer to seek information  from any hospital he had attended or may attend concerning any disease or illness which may affect his health"

8.                    During his cross examination before the District Forum, Dr. Kapil Chib, Medical Superintendent, Apollo Hospital, Ludhiana, admitted that the history was reported to the doctor by the relative of the patient. It cannot be believed that the deceased had no knowledge that he was suffering from those diseases. The concealment of material facts by him amounts to the breach of the utmost good faith and the same made the contract of the insurance void.

9.                     In the repudiation letter (Ex.R-13), the claim was declared not payable because the insured was suffering from DM and HTN before the purchase of policy and as per exclusion Clause 4.1, the Coronary Artery Disease, being complication of HTN, and DM is excluded clause 4.1 provides as under:-

4.1      "All diseases/injuries which are pre-existing when the cover incepts for the first time. However, those diseases will be covered after four continuous claim free policy years. For the purpose of applying this condition, the period of cover under Mediclaim policy taken from National Insurance Company only will be considered. This exclusion will also apply to any complications arising form pre-existing ailment/disease/injuries. Such complications will be considered as a part of the pre-existing health condition or disease. To illustrate, if a person is suffering from hypertension or diabetes or both hypertension and diabetes at the time of taking the policy, then policy shall be subject to following exclusions.

It is not in dispute that DLI died due to Coronary Artery Disease which was a complication of HTN and DM.

10.                             In the result the appeal of the appellant/ opposite party is allowed and impugned order of the District Forum is set aside. Consequently, the complaint filed by the complainant is dismissed. No order as to cost.

11.                            The appellant/ opposite party deposited an amount of Rs. 25,000/-, with this Commission at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, be remitted by the registry to the appellate /opposite party by way of cross cheque/demand draft, after expiry of 45 days of the sending of certified copy of the order to the parties.

12.                   The arguments in the case were heard on 23.12.2014 and the order was reserved. Now, the order be communicated to the parties.

13.                  The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.

February 13,2015