FINAL ORDER / JUDGMENT   

  SMT. SUKLA SENGUPTA, PRESIDENT

             This case is filed by the complainant U/s 35 of the CP Act,   2019.

             The complainant stated that she obtained the Health Insurance Policy from National Insurance Medical Policy in the year, 1996 along with her husband being policy No. 10030050201011366  and the renewal sum assured of  Rs. 10,00,000/- + bonus per person.

The complainant further stated that thereafter, in the month of 2022 the said policy was ported to the present OP TATA AIG General Insurance Company Ltd. as allured by the presenting of the OP. The complainant being convinced by the representative of the present OP agreed to port. The previous insurance to the OP Insurance Company after going through the lucrative and alluring cashless benefits of the OP-1,  the complainant obtained an insurance policy being No.  023924987800 towards sum assured of Rs.  20 lacs + bonus under the premium of Rs. 1,06,618.00 + Rs.  17441.31 (extra loading) for two heads of the family to be renewed every year w.e.f from 25.01.2022.

The  submition  of  application form by the complainant was handled online and was filled up by the representative  of the OP Insurance Company. The said representative categorically  asked the complainant to mention only  current health status, medication and reset health issues of the insured person which was duly informed  by the complainant. The representative of the OP Insurance company has completed  all the formalities themselves and regulated the said insurance policy of the complainant.

 It is further case of the complainant that in the month of April,  2022  the complainant faced problem on her left eye and was diagnosed with cornea problem. she was admitted on 13.04.2022 at LV  Prasad Eye Institute, Hyderabad for surgery and she was discharged from on the same self date after surgery of SYNECHIOLYSIS + Descemets Stripping  automated Endothelial + stripping  endothelial Leratoplasty + Phacoeinulcificatiol + Foldabale PC I O L (ASPHERIC) of the left eye of payment of Rs.  110688/- + Rs.  14212/-  for pre-operative check up and medicine in total a sum of Rs. 1,24,900/- was the expenditure and had to make frequent  check up as per the direction of the said hospital. The complainant has also to incurred both surgical expense for frequent check up and medication for the last few months.  

The complainant further stated that after completion of treatment as mentioned above she is submitted the respective  documents towards the claim of Rs.  1,24,900/- . The medical expenditure incurred by her due to treatment of left eye to the OP-3 for reimbursement, but the representative of the OP submitted that  the amount was of Rs.  1,15,018.00 as claimed to the department on behalf of the complainant but the complainant was shocked to know that the claim was repudiated  and policy was cancelled and terminated due to non-disclosure of cogan-case Syndrome which was diagnosed almost 25 years back vide email dated  20.05.2022.

 The complainant further stated as per clause 12 of IRDA of India after the expiry of Moratorium period. No Health Insurance claim shall be contestable except for fraudulent fraud and permanent  exclusion specified in the policy contract. So, as there was no fraud and no non-discloser of the material fact by the complainant, the OP Insurance Company cannot repudiate or terminate the policy  in question  of the complainant.

The complainant and her representative constantly and repeatedly requested  the OP Insurance Company to reconsider the claim and settle the claim but in vain.

Subsequently, the hospital   satisfied all the forged and concocted query raised by the OP on 31.05.2022 by a declaration from Dr. Srisha Senthil Ophthalmologist   that the surgery was cornea related and not related to Glaucoma (which was treated almost 25 years ago) but till date claim has not been settled.

Having no other alternative, the complainant served a  legal notice dated 14.07.2022 towards the Ld. Advocate upon the OPs but the OP did not reply the same.  Such conduct of the OP is nothing but the deficiency in service on their part.

Under such circumstances,   the complainant has filed this case with a prayer for giving direction to the OPs to settle the actual claim of Rs.  1,24,900/- to the complainant along with interest @ 18 % p.a. till the actual payment.

The complainant further prayed for giving direction  to the OP to settle the amount of Rs.  82,500/- paid on  28.07.2022 towards the eye surgery  of the complainant and to give direction the OP to reinstate the policy and assured the continuity of the same.

The complainant further  prayed for compensation  of Rs. 3,50,000/- along with litigation cost  of Rs.  1,50,000/-

The OPs 1 to 4 has contested the claim application by filing a WV denying all the material allegations leveled against them. It is the case of the OPs case that admittedly, the complainant was insured under the coverage of an insurance policy with the OP Insurance Company being policy No. 0239249878 for the period of 25.01.2022  to 24.01.2023. The subject policy was ported from National Insurance Company.  The copies of the insurance policy issued by the TATA AIG General Insurance Company and the its terms and conditions and the copy of previous insurance   policy issued by the National Insurance Company Ltd. are filed and marked as annexure 1, 2 and 3. The contesting OPs have alleged in the WV that there was not mentioned any pre-existing disease  in the policy issued by the National Insurance  Company  Ltd .

The contesting OPs further stated that it is alleged by the complainant in her petition  of complaint that the representative of National Insurance Company  categorically asked the complainant to mention only the current health status medication and recent  health issue of the insured person  which means the complainant has concealed the information regarding any previous ailment at the time porting of the insurance policy and she did not raise any objection during the ‘Free Look Period’ to  change or modify any terms of the policy relating to the Disclosure term. The copy of proposal form is marked as annexure-4.

 It is also admitted by the contesting OPs that that complainant approached the OP Insurance Company for reimbursement of her claim of Rs. 1,15,018/-  before her admission at  L V Prasad institute from 13.04.2022 to  13.04.2022. After receiving  the reimbursement  claim,  the OP Insurance Company  provided the claim No. and related document  of the claim from the insured  and the concerned hospital thereafter, as per scrutiny  of the documents it is known that case of  cogan case syndrome since 1997 i.e. prior to the policy inception with TATA AIG and the policy  has been started on and from  25.01.2022 which was not been disclosed in the proposal  form.

  Hence, the OP Insurance Company   has repudiated the claim of the complainant and submitted that the complainant has no cause of action to file the case and there was no negligence on the part of the contesting OPs. So, question of deficiency in service on the part of the contesting OPs does not arise at all and the case of the complaint is liable to be dismissed.

  In view of the facts and circumstances as   stated above, let it be decided

1. Whether the case is maintainable or not?

2. Have the complainants any cause of action to file this case?

3. Is the complainant consumer?

4. Is there any deficiency in service on the part of the OP?

5. Is the complainant entitled to get the relief as prayed for?

Decision with reasons

All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetition.

On a close scrutiny of the materials on record, it is reflected that the case is well maintainable in the eye of law and this commission has got ample jurisdiction both territorial and pecuniary to try this case.

From the admission of the contesting OPs  it is palpably clear that the complainant was insured under the coverage of the insurance against the OP Insurance company   being policy No.  0239249878   for   the   period on and  from 25.01.2022 to 24.01.2023.  It is also admitted fact that the policy   was ported from National Insurance Company Ltd.   

Perused copies of the insurance policy  issued by TATA AIG Insurance Company   Ltd. and terms and conditions and copy of previous insurance  policy issued  by the National Company Ltd. which are annexed as annexure-1, 2 and 3. From which it is palpably clear that the complainant is a consumer within the provision of CP Act, 2019 and the contesting OPs are the service providers.

It has also admitted fact that the OPs have repudiated the claim (annexure-5) and cancelled the subject policy which compelled the complainant to come before this commission for getting relief.

So, on the basis of the facts and circumstances as well as evidence on record, as adduced by the parties to this case, it is crystal clear that the complainant has/had sufficient cause of action to file this case.

Now let us see whether there was any sort of deficiency in service on the part of the OP Insurance Company or not.

It has already been discussed above that admittedly, the complainant has purchased the subject health policy from the OP being policy No. 0239249878 for the period from 25.01.2022 to 24.01.2023 and it is also admitted fact that the complainant was admitted at L B Prasad Institute  on 13.04.2022 and was discharged there from on the  same self date.  After surgery of her left eye as described in details in the petition of complaint on payment of Rs. 1,10,688/- in total as  hospital expenditure.  She also spent a sum of Rs. 14,212/- for pre- operative check up and medicine but the OP insurance Company has repudiated the claim of the complainant vide email dated 20.05.2022 on the point of non-disclosure of cogan case syndrome.

But as per proposition of law,  the burden of proof is lying upon the OP and they are requested to discharge his burden by producing any cogent evidence on record.

It is also settled pro-position of law that the pre-existing disease means the disease which insured has been hospitalized  and under gone in hospital  in near proximity  to  the policy but the OPs of the instant case failed to prove their allegation by adducing any cogent document to that effect.  

On the contrary, it is the view of   this commissions that the complainant being a genuine policy holder is entitled to get the hospital expenditure of her medical treatment for her left eye. The OP Insurance Company cannot shut down  the claim of the complainant arbiterally are its own accord.

From the evidence on record,  it is palpably clear that the complainant on so many occasions  requested the OP to re-consider the matter and to settle the claim but the OP Insurance Company did not pay any heed to the request of the complainant rather they also cancelled the policy illegally which they cannot .

Under such circumstances, this commission is constrained to hold that being a consumer and a genuine policy holder of the subject policy as mentioned in the petition of complaint, the complainant is entitled to get the hospital expenditure amounting to Rs. 1,10,688/- from the OP Insurance Company but the OP Insurance Company deliberately neglected the claim of the complainant which is nothing but deficiency in service on their part. They also deliberately cancelled the subject policy which they cannot.  This is also deficiency in service on the part of the OP Insurance Company and others.  So, the OPs  are  liable to give compensation  to the complainant.

In view of discussion made above,  it is opined by the commission that   the complainant being a consumer  could be able  to prove her case beyond  all reasonable doubts and is entitled  to get the relief in part as prayed for.

All the points are considered and decided in favour of the complainants. 

The case is properly stamped.

Hence,

Order

that the case be and same is decreed  on contest against  the OP with cost of Rs. 5,000/-.

The complainant do get the decree in part.

The OPs are directed  to settle the hospital expenditure amounting to Rs.  1,10,688/- along with interest @ 6% p.a. on the amount from date of filing of this case till realization either jointly or severally.

The OP Insurance Company are further directed to reinstate the subject policy and assured the continuity of the same within 45 days from the date of this order.

The OPs are further directed to  pay compensation  of Rs. 1,00,000/-  to the complainant  for harassment,  mental pain and agony either jointly  or severally within 45 days from the date  of this order along with litigation cost  of Rs 30,000/-, id the complainant will be at liberty to execute the same as per law.

Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.