BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 413 of 2015
Date of Institution: 26.06.2015
Date of Decision: 16.06.2016
Shri Piara Singh, aged 49 years son of Sh.Wassan Singh, resident of village: Bhikhiwind, Tehsil: Patti, District Tarn Taran
Complainant
Versus
1. TATA AIG General Insurance Company Limited, having its Office at A-501, 5th Floor, Building No.4, Infinity IT Park, dindoshi, Malad East, Mumbai-400097.
2. TATA AIG General Insurance Company Limited, having its Branch Office at District Shopping Complex, Ranjit Avenue, Amritsar through its Branch Manager.
3. AXIS Bank Limited, having its Branch Office at Patti, District Tarn Taran through its Branch Manager.
Opposite Parties
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant: Sh.Rajat Anand, Advocate
For Opposite Parties No.1 and 2: Sh.P.N.Khanna, Advocate.
For Opposite Party No.3: Exparte.
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Piara Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he is a poor and helpless person, who has been unnecessarily harassed and humiliated by the Opposite Parties after taking an amount of rs.18,497/- from him as premium for the Medi Prime Plus Health Insurance Policy which is effective for the period w.e.f. 1.7.2014 to 30.6.2015. It is a relevant fact to be mentioned over here that some of the officials of Opposite Party No.3 had approached the complainant in the last week of June, 2014 and persuaded him to have a Medi Prime Plus Health Insurance Policy for himself as well as for his family. The agent of Opposite Party No.3 assured the complainant and his other family members that taking of such policy would be for his benefit and for the benefit of his family members. Said agents told the complainant and his family members as to whether they are suffering from heart disease or not. The complainant and his other family members informed him that neither they are heart patients nor ever undergone any kind of surgery procedure until that day. Ultimately, Opposite Party No.3 conveyed the complainant and his other family members that they are working as agents of Opposite Parties No.1 and 2 and they told the complainant to pay premium for the issuance of such Medi Prime Plus Health Insurance Policy. The complainant paid a sum of Rs.18,497/- for the above referred policy and in this regard, the Opposite Parties issued one policy bearing No. 0200458564 in the name of complainant and also issued two receipts dated 7.8.2014 for Rs.2000/- as well as for an amount of Rs.16,497/- with declaration that the policy was valid w.e.f. 1.7.2014 to 30.6.2015. It was an individual plan and finally policy schedule was also issued in the name of complainant and his other family members namely Paramjit Kaur his wife, Jagjit Singh son and Manpreet Kaur daughter. The aforesaid policy was effective for the period of one year and finally policy number 0200458564-00 was issued to the complainant. Even a MediPrime card was also issued in the name of the complainant and he was advised that in case he suffered from any medical disease, he is required to show the above referred medical card to the hospital authorities and further assurance was given to the complainant that upon showing such MediPrime Card, his treatment would be taken up free of costs and he be not to pay any amount to the authorities. Unfortunately, in the first week of December 2014, the complainant started feeling some kind of uneasiness. Subsequently, on 15.12.2014, he suffered some medical problem and was immediately taken to Dr.Ved Kumar Gupta Hospital at Amritsar. The doctor attending on the complainant found that the complainant was suffering from some heart problem which he had sustained all of the sudden and accordingly, the complainant was advised to immediately undergo the procedure of Angiography and Coronary Angioplasty. Subsequently, the complainant had went to Medanta Global Health Private Limited, the Medicity Hospital at Defence Colony, New Delhi, where on 19.12.2014, the complainant was admitted and his Angiography was conducted which revealed that the complainant required Coronary Angioplasty. Prior to that, the complainant had given his medical card issued by the Opposite Parties to the above referred hospital authorities and he had requested the aforesaid doctors that he is having a mediclaim insurance. The doctors of Medanta Hospital had verified the things and told the complainant that the Opposite Parties are not ready to immediately honour the aforesaid medi card and they advised the complainant to pay the amount of Coronary Angioplasty as well as Angiography immediately and they told the complainant that he would be at a liberty to claim the aforesaid amount subsequently from the Opposite Parties. The relatives of the complainant immediately called upon the Opposite Parties, who informed that on account of certain problems, they are not in a position to immediately honour the above said medi card and they had advised the complainant to first of all, pay the amount from his own pocket and they had assured that afterwards they would be making refund of the entire amount that shall be paid by the complainant and his other family members. Since the condition of the complainant was becoming critical, therefore, the complainant and his relatives had to pay amount to Medanta Global Health Private Limited, the Medicity Hospital at Defence Colony, New Delhi authorities and ultimately, his Angiography and Coronary Angioplasty were conducted by the Medanta Hospital and he had to remain hospitalized. The complainant and his relatives had to pay a sum of Rs.3,39,155/- to Medanta Global Health Private Limited, the Medicity Hospital at Defence Colony, New Delhi. From the aforesaid tota,l amount of Rs.3,39,155/- an amount of Rs.2,11,000/- was paid for the IPD Internal Consumption. The complainant remained admitted in the aforesaid hospital from 19.12.2014 and he was discharged on 21.12.2014. After getting discharged, the complainant and his relatives had started approaching the Opposite Parties and raised their claim for the amount of Rs.3,39,155/- which they had paid to the hospital authorities. Opposite Parties initially had lingered on the matter and had assured to the complainant that very soon they would be clearing the bills of the complainant. The payment of the bills was intentionally delayed by the Opposite Parties and about 15 days ago, the Opposite Parties have verbally conveyed to the complainant that they are not in a position to honour the bills which have been so paid by the complainant against the medication because their inquiries revealed that the complainant was a diabetic patient. The complainant was surprised and he asked the Opposite Parties that he was not suffering from any kind of disease and all the detailed facts were brought to the notice of the agents of Opposite Parties and they had given the insurance policy only after verifying the entire facts and after getting medical tests. Prior to issuance of the insurance policy, the complainant was called upon to undergo various tests by the Opposite Parties and he had successfully undergone such tests which revealed that the complainant was not suffering from any kind of disease and the disease which he had suffered all of the sudden was duly covered under the insurance policy, therefore the Opposite Parties are duty bound to pay the amount of the bills which he had paid to the hospital authorities and the same is duly covered under the mediclaim insurance above referred, but the Opposite Parties have flatly refused to adhere the genuine prayer of the complainant and refused to pay such bills to the complainant by giving wrong and lame excuses. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay an amount of Rs.3,39,155/- jointly and severally to the complainant as against the amount of the medical expenses which he has paid to Medanta Global Health Private Limited, the Medicity Hospital at Defence Colony, New Delhi for the reasons described above.
b) Opposite Parties may be directed to pay interest @ 18% per annum from the date when the aforesaid payment actually became due to be paid by the Opposite Parties to the complainant.
c) Damages and compensation to the tune of Rs.50,000/- be also awarded. Litigation expenses amounting to Rs.22,000/- be also awarded. The complainant may also be awarded any other relief to which he shall be found legally entitled to under the law, equity and justice.
Hence, this complaint.
2. Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the complainant has not approached this Forum with clean hands and has concealed the material facts from this Forum. Any person who approaches the court with unclean hands, is not entitled to get any relief; that the complainant preferred a claim with the answering Opposite Parties vide claim No. H00009496 with respect to pain in chest for which he was admitted in Medanta Hospital from 19.12.2014 to 21.12.2014. The request for cashless was received by answering Opposite Parties on 21.12.2014 which was rejected by the answering Opposite Parties due to non submission of details pertaining to pas medical history as the complainant was an old patient of hypertension and diabetes mellitus. Copy of pre authorisation letter is annexed. Therefore, the complainant was requested to send the claim for reimbursement alongwith required documents so that the claim may be processed as per terms and conditions of the policy. The reimbursement request was sent to the answering Opposite Parties on 2.1.2015. After receipt of the same, the answering Opposite Parties sent request and reminder letters dated 9.1.2015, 31.1.2015, 10.2.2015, 23.2.2015 and 27.2.2015 to the complainant for providing necessary documents required for processing the claim. The complainant clearly stated in the covering letter that he was not suffering any Blood Pressure/ Sugar related problem ever before the present ailment. After scrutiny of the documents submitted by the complainant, the answering Opposite Parties sought for investigation of the matter and after receipt of an authority letter dated 3.1.2015 the answering Opposite Parties got the matter investigated through an independent investigator M/s.Probus Associates & Consultants Private Limited, who investigated the complete history of the complainant and submitted his report dated 18.2.2015. As per the report, the complainant was suffering from diabetes mellitus from past 12 years. The OPD consultation dated 22.12.2014 of Dr.Sunil Kumar Mishra confirms the fact. Copy of consultation dated 22.12.2014 has been attached; that the complainant has deliberately concealed the material fact to the effect that he was under continuous medication from past 12 years with respect to treatment of diabetes mellitus and T2 and HTN, CAD, LVD. The discharge summary also confirms the fact. It is also submitted that the complainant had provided a signed proposal form wherein he had clearly stated at Question No.5 that he had not taken any medication in past 5 years and was not suffering from High Blood Pressure/ diabetes etc. Copy of proposal form is attached. By concealing the fact that the complainant was a patient of DM from past 12 years, he has violated the declaration signed by him; that in the light of repudiation made on merits, there is no question of any deficiency in service on the part of the answering Opposite Parties and therefore, in absence of any deficiency, the present complaint is not legally maintainable. On merits, the facts narrated in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. None appeared on behalf of Opposite Party No.3 despite due service, so Opposite Party No.3 was ordered to be proceeded against exparte.
4. In his bid to prove the case, complainant tendered into evidence made his duly sworn affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copy of covering letter issued by Opposite Parties Ex.C1, copy of policy schedule Ex.C2, copy of card issued by Opposite Parties Ex.C3, copies of tax benefit letters Ex.C4 and Ex.C5, discharge summary alongwith medical reports (29 pages) Ex.C6, copy of hospital bills Ex.C7, copy of bill No.S8063 Ex.C8, copy of reference letter Ex.C9, copy of intermediate draft report Ex.C10, copy of angioplasty report Ex.C11, investigation report dated 18.2.2015 Ex.C12, repudiation letter dated 27.4.201 Ex.C13 and closed the evidence.
5. To rebut the evidence of the complainant, Opposite Parties No.1 and 2 tendered into evidence the affidavit of Mohd. Azhar Ex.OP1-2/1, statement of complainant Ex.OP1-2/2, query letter written to complainant Ex.Op1-2/3, first reminder Ex.OP1-2/4, second reminder Ex.OP1-2/5, reminder letter for submission of pending documents Ex.OP1-2/6, another reminder Ex.Op1-2/7, undated letter written by the complainant Ex.OP1-2/8, consent letter Ex.OP1-2/9, affidavit of Dr.Parveen Sehrawal Ex.OP1-2/10, report of Probus Associates Ex.Op1-2/11, discharge sheet Ex.OP1-2/12, discharge summary Ex.Op1-2/13, proposal form Ex.Op1-2/14, letter dated 24.4.2015 Ex.Op1-2/15, letter dated 27.4.2015 Ex.Op1/2/16, certified copy of policy schedule alongwith terms and conditions Ex.OP1-2/17 and closed the evidence.
6. We have heard the ld.counsel for the complainant and have carefully gone through the evidence on record.
7. On the basis of the evidence on record, ld.counsel for the opposite party has vehemently been contended that no doubt the complainant and his family members purchased mediclaim policy copy whereof is Ex.C-2 valid w.e.f 1.7.2014 to 30.6.2015. But, however, complainant had concealed material facts that he was under continuous medication for the last 12 years with respect to diabetes mellitus – T2 and HTN, CAD and LVD. This came to light in the investigation carried out at the instance of the opposite party by independent Investigator M/s. Probus Associates & Consultants Pvt.Ltd, who submitted their report, copy whereof is Ex.OP1-2/11 on record. The complainant has deliberately concealed the material facts. The complainant has provided signed proposal form , where he has clearly stated by question No. 5 of the questionnaire that he had not taken any medication in the past five years and was not suffering from any ailment viz high blood pressure, diabetes etc. The said proposal form is Ex.OP1-2/14 on record from which it is apparent that complainant has intentionally concealed the material fact that he was patient of Diabetes Mellitus for the last 12 years . As such he has violated the declaration signed by him which reads as under :-
“ I hereby declare and warrant on my behalf and on behalf of all persons proposed to be insured that the above statements are true and complete in all respects. I agree that this proposal form and declarations shall be the basis of the contract between me and all persons to be insured and TATA AIG General Insurance Co.Ltd.”
8. In view of the aforesaid facts, it is apparent that there is mis-representation/non disclosure of material facts on the part of the complainant. Therefore, policy No. 0200458564 was terminated by the opposite party vide letter dated 24.4.2015 copy whereof is Ex.OP1-2/15 on record.
9. It has been further contended that complainant in order to wriggle out of the said termination of the policy and repudiation of his claim has taken the plea that he was subjected to medical tests by the opposite party for issuing the policy in question. However, this plea is totally wrong. In this regard , it is stated that the age of the complainant at the time of obtaining of the policy for the first time from the opposite party was 49 years. The policy pre-requisite of medical tests would have been applicable only in the event of the complainant being more than 50 years at the time of obtaining the policy. Hence, the plea taken by the opposite party is totally wrong and incorrect. Moreover, in fact the contract of insurance is based on principle of utmost good faith. However, if the said utmost good faith is shaken by the insured, then he loses all rights and benefits under the policy in question.
10. So far as obtaining of the policy of the complainant known as Medi Prime Plus Health Insurance Policy is concerned, the same was obtained for a total sum of Rs. 3,00,000/- for the period from 1.7.2014 to 30.6.2015 and the same was accepted by him after having understood the terms and conditions and exclusion clauses of the said policy. As per law the complainant is bound by the terms and conditions and exclusion of the policy in question which is a contract of insurance on the basis of which the present complaint has been filed. In this regard the law is very clearly laid down by the Hon’ble Supreme Court as well as Hon’ble National Commission holding that clauses of insurance policy are to be interpreted as it is and nothing can be added or subtracted therefrom . In M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd-Appellant Versus United India Insurance Co.Ltd & another –Respondents 2010(IV) RCR (Civil) page 845, the Hon’ble Supreme Court has held that in the contract of insurance, rights and obligations are strictly governed by terms of the policy and no exception or relaxation can be given on the ground of equity. It has been further held in this judgement that words used in the contract of insurance must be given paramount importance and it is not open for the court to add, delete or substitute any words. In this judgement it has been further held by the Hon’ble Supreme Court that where there is breach of condition of the insurance of contract by the insured, the insurance company not liable to pay compensation in case of loss.
11. On the basis of the aforesaid discussion, it has been vehemently contended that the claim of the complainant has been rightly repudiated by the opposite party. The complaint has no force and the same is liable to be dismissed accordingly with cost.
12. However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant was not suffering from any disease i.e. Diabetes Mellitus etc as is the case of the opposite party. The opposite party has placed reliance upon bed head ticket , copy whereof is Ex.OP1-2/12 dated 22.12.2014 on record. There is no evidence on record that the complainant has been getting treatment of Diabetes Mellitus and T2, HTN, CAD and LVD for the last 12 years, is not borne out from any evidence adduced by the opposite party in support of their case. The bed head ticket cannot be interpreted in a manner that the complainant was obtaining the treatment rather it was the doctor, who treated the complainant during those years or the record maintained at various hospitals should have been called to prove the alleged plea regarding the past diseases allegedly suffered by the complainant. But,however, no such record was adduced on record for the reasons best known to the opposite party. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India & Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. & Anr Vs. Hansaben Deeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of heart disease, the repudiation of the claim on the ground of suppression of material fact is totally illegal. In such a situation it cannot be stated that any mis-representation was made by the complainant at the time of entering into the contract of insurance with the opposite party or that he had made mis-statement regarding his health at the relevant time. Even otherwise also Diabetes or Hypertension are no diseases during these days and the person suffering from such diseases may not be actually knowing that he was suffering from them. Reliance in this regard can be had on New India Assurance Company Ltd. Vs. Rakesh Kumar III(2014) CPJ 340 (NC) of the Hon’ble National Commission, that where the opposite party did not produce any evidence to prove that which medicine and for how long the complainant was taking for diabetes/hypertension, opposite party cannot apply hard and fast rule to presume that complainant was suffering from long duration i.e. before taking the policy. The Hon'ble National Commission further held that people can live for months, even years, without knowing that they have the disease and it's often discovered accidentally after routine medical check up and it was held that opposite party/Insurance company has failed to prove the concealment of any disease by the complainant. The same view has been taken by our own Hon'ble State Commission in case First Appeal No. 384 of 2008 decided on 19.9.2012 titled as Subash Kaushal Vs. National Insurance Company Ltd.
13. On the aforesaid discussion, it transpires that opposite parties have erred in repudiating the genuine claim of the complainant. As per Insurance policy, the complainant was covered for insurance claim to the tune of Rs. 3 lacs. Although the complainant has made a claim for Rs. 3,39,155/- yet he is entitled to a sum of Rs. 3 lacs out of the expenditure on treatment as well as the expenses incurred on medicines during his hospitalization w.e.f. 19.12.2014 to 21.12.2014.
14. Consequently, instant complaint succeeds and the opposite parties are directed to pay a sum of Rs. 3 lacs on account of medical treatment as well as expenses on medicine by the complainant at Medanta Global Health Private Limited , the Medicity Hospital, New Delhi . Besides that complainant is also entitled to get Rs. 5000/- as compensation on account of deficiency in service on the part of the opposite parties alongwith Rs. 2000/- as litigatin expenses. Opposite parties are directed to comply with the order within a period of 30 days of the receipt of copy of the order ; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated :16.6.2016
