FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application U/s.12 of the C.P. Act, 1986.
The petitioner had a health insurance policy bearing no.OG-11-2430-8417-00000079 with Bajaj Allianz General Insurance Co. Ltd. in the year 2010. He continued renewal of the policy upto 2018 and then ported the policy with the OP Insurance Co. through the OP 5. In the ported certificate the age was wrongly quoted which was pointed out but it was told that it could not be modified after issuance of the policy. The complainant has to visit Apollo Hospital in Chennai for his knee problem and was operated his left knee on 09.10.2018 and was discharged on 11.10.2018. The complainant paid a sum of Rs.2,80,000/- from his pocket for the said treatment. Afterwards, he claimed reimbursement from the OP Insurance Co.. But the said claim was repudiated by the OPs and the decision was communicated to the complainant vide mail dated 17.11.2018. The complainant sent legal notice dated 15.01.2019 to the OPs which was not replied by them. The complainant submits that the claim is genuine and the OPs have deliberately repudiated the same illegally for which he has approached the Commission for justice with prayers as mentioned in the complaint.
The OPs 1,2 & 5 have filed their W/V contending interalia that the complaint petition is frivolous, without any cause of action and is not maintainable. The complainant has suppressed the material fact of pre existing disease in the proposal form at the time of issuance of the policy which is against the basic principle of “Uberrima Fides” The complainant was issued Aditya Birla Health Insurance Policy bearing no.11-18-0020723-00 namely Platinum Enhanced with effect from 22-07-2018 on the basis of his submitted proposal form duly completed. The complainant was under treatment at Apollo Hospital since November 2016 for his disease of Valvuler Heart Disease, mixed Dyslipidemia, Hepatosplenomegaly and CSA Borderline for inductible ischemia which has not been disclosed by him in his proposal form. As such there is suppression of material fact which ought to have been disclosed by the complainant. Since the complainant has not disclosed his pre existing disease the OPs have rightly repudiated the claim.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. Both parties have submitted their evidence on affidavit and also their BNA. The OP Nos. 3 & 4 have been expunged from the proceedings vide order no. 08 dated 28.06.2019
The complainant has filed questionnaire to the OPs and also filed replies to the questionnaire set forth by the OP. The OP has not filed their reply against the questionnaire of the complainant.
While perusing the records it is observed that the complainant Mr. Sambit Chakroborty ported his Mediclaim Policy to the OP Aditya Birla Health Insurance Company vide Policy No.11-18-0020723-00 with start date on 22.07.2018 for a period of 01 year and expiry date on 21.07.2019. It is noted that the complainant was earlier having a Health Insurance policy with Bajaj Allianz General Insurance Company since 2010 which was continued upto 2018 without any break. The new policy with the OP 1 & OP 2 is ported from the previous Insurer. The sum assured of the new policy is Rs.5,00,000/-. The complainant got admitted in Apollo Hospital at Chennai on 09.10.2018 and was operated left knee on the same day and was released on 11.10.2018 from the said Hospital. The total expenditure for the treatment was Rs.2,80,000/- . The complainant lodged the claim with the OPs but the said claim was repudiated by the OPs and the complainant was informed by the OPs through mail dated 17.11.2018 with the reason mentioned below.
“ Patient is known case of valvular heart disease, mixed dyslipidemia, Hepatospelenomegaly and CSA – Borderline for inducible ischemia. This history was not disclosed to us on the proposal form.”
Because of non disclosure of the above findings of Health Check up done on 24.11.2016 in Apollo Hospital, Chennai the claim for left knee operation was repudiated. We are really surprised to observe that the claim was submitted for reimbursement of the expenditure of knee operation which was repudiated by the OPs by citing the reason of non disclosure of the above findings of health check up done on 24.11.2016. The above findings are related to Heart which have hardly any relation with the knee operation. This basic question was asked by the complainant to the OPs in his questionnaire vide question no. 14 which remains unanswered. Incidentally, it is mentioned that the OPs did not file their reply against the questionnaire set forth by the complainant in the proceedings inspite of getting ample chance to file the same. While perusing the questions set forth by the complainant we observe the following.
Question No. 10. “ Who has filled up the application form dated 20.07.2018 and signed thereto at the time of process transfer of the policy ?
Answer ;- Nil.
Question No. 17. “ I suggest that the agent of the OP 1 practiced fraud upon the complainant.”
Answer :- Nil,
Question No.23. “ I say that the complainant has never signed in your Application Form No. 1100032812 dated 20.07.2018 which you have annexed in your policy kit.”
Answer Nil.
Question No.24. “ I say that the said alleged proposal form was filled up and signed by your men and agent who practiced fraud upon the complainant
Answer :- Nil.
Question No. 25. “ I say that you being the principal are liable for the act and conduct of your agent. “
Answer :- Nil.
The above questions are very much vital and relevant in this context. The OPs have avoided the questions by not filing replies. This silence/ avoidance of filing replies by the OPs to the questionnaire set forth by the complainant is otherwise an admission on the part of the OPs in respect of the allegations leveled against them.
Moreover, the findings of the Health Check Up dated 24.11.2016 does not conclude that the complainant was admitted for treatment of those diseases in the said hospital. It seems to be a routine check up which has no relation/bearings with his knee operation. Moreover the said findings of health check up are not coming under the purview of concealment of pre-existing disease which has been clearly decided on 01.08.2008 vide Judgment of the Hon’ble NCDRC in the matter of Pradeep Kumar Garg V/S National Insurance Co. Ltd. Citation : 2008 Law Suit (CO) 378 where under Point No.5(iii) it has been mentioned that “ Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
Point 5(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a ‘diseased person’ as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.” The OPs have tried to establish that the complainant have concealed the material information at the time of taking the policy by giving wrong declaration in the proposal form. First of all, the OPs have failed to establish the relevant documents authentic by not replying the question nos. 23, 24 and 25 set forth by the complainant. As such concealment of material fact does not stand. Moreover, the operation was there in the left knee of the complainant whereas the findings of the health check up dated 24.11.2016 are related to heart. And reimbursement was claimed for the treatment of knee operation. The OPs has harped on the single point in their W/V, Evidence and BNA that the complainant has concealed the material information in the proposal form which are not found proved material in the present context. They have cited so many case laws in the matter of concealment of material fact and tried to evade the liability of making the payment. But how the concealment of those findings of health check up has become material to his present knee operation has not been explained and proved. The complainant has proved the documents of the OPs as doubtful by throwing the question nos 23, 24 & 25 to the OPs. OPs remained silent by not answering those questions thereby making themselves guilty of the allegations. In the result, the OPs have miserably failed to establish the logic behind repudiation. They have deliberately tried to mislead the commission by hearing the consequence of concealment of material fact which has not happened in the present case. Repudiating a genuine claim tantamount to deficiency in service and unfair trade practice on the part of the OPs.
In the light of the above observation, we are of the considered view that the complainant has established the case against the OPs. All the points under determination are answered accordingly.
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case is allowed on contest against the OPs 1,2 & 5 with the following directions:-
- The OPs 1, 2 & 5 are directed to reimburse the claim of Rs.2,80,,000/- to the complainant with interest at the rate of 4 percentfrom the date of filing the case till realization
- The OPs 1, 2 & 5 are further directed to pay Rs.20,000/- to the complainant as compensation for causing harassment and mental agony .
- The OPs 1,2 & 5 are also directed to pay a sum of Rs. 10,000/- to the complainant as litigation costs.
The above orders are to complied within a period of 30 days from the date of the order.
In the event of non compliance of the order, liberty be given to the complainant to put the order into execution U/ss 71 & 72 of the C.P. Act,2019.
The judgment be uploaded to the website of the Commission forthwith for perusal of the parties.
