This complaint under section 35 of C.P, Act 2019 was initially filed against the O.P., The manager, HDFC ERGO General Insurance Company Limited, Siliguri Branch Office, 1st Floor, Sona Complex, Third Mile, Sevoke Road, Police Station: Bhakti Nagar, Siliguri, District- Jalpaiguri, Pin Code -735008 who contested the case by filing written version.

            The case of the compliment as per his complaint is as follows-

            The compliment argued in her plaint that she is a school teacher by profession and she took "Optima Restore Individual" policy from the Opposite Party (O.P.) in 2021, vide  Proposal Form and declaration dated 01/04/2021 and after all pre insurance medical check-up by the O.P., the  said policy being number :-2805-2041-4585-0200-000 period of coverage from 30/04/2021(17:45 Hours) to 24:00 hours on 29/04/2022 against payment of healthy premium to the tune of  Rs 11,981/- (Rupees  Eleven Thousand Nine Hundred and Eighty One) only for total some assured of  Rs.5,00,000/- (Rupees Five Lakh) only and the Policy was charged with additional premium of Rs. 2,093/- (Rupees Two Thousand and Ninety Three) only for medical condition which was part and parcel of the policy wordings and the policy only after several pre insurance medical test by expert as at the time of inception of the policy in question the complainant had no other disease save and except she being diabetic.

            The complement also argued in her plaint that in the month of August 2021, the complement had been to Christian Medical College, Vellore for normal check up of diabetes and post OP status of her fracture in the department of Endocrinology, diabetes and metabolism. However, in the said Medical College there was diagnosis of SVTC (Supra - ventricular tachycardia)/ PSVT( Paroxysmal Supra- ventricular tachycardia) of complainant and the said medical institution decided to have "Cardiac Electrophysiology study and Radio-frequency Ablation" for her medical healing and the said matter was informed to the O.P. immediately and also for necessary accord of the insurer  for availing 'cashless facilities' at the institution which was available under the policy contract. The complainant also added that at the time of inception of the policy " Diabetes " was mentioned in the proposal form and accordingly the insurance company charged extra premium of Rs. 2,093/- (Rupees Two Thousand and Ninth Three) only and owing to this over act, the complainant have to take release from said Medical College after postponing cardiac Electro physiology study and Radiofrequency Ablation which was fixed on 24/08/2021 and after getting herself free admitted finally Electrophysiology study and Radiofrequency Ablation was done on 25/08/2021 after getting herself readmitted in the said Medical College.

             The complement also argued in her plaint that after release, she had lodged her claim for reimbursement and sent all papers (both hard copies and soft copies) relating to her treatment annexing the medical bills but her claim for the reimbursement against I.D. No. - RR-HS21-12657625 but the O.P. repudiated and closed the claim of the complainant vide letter dated 31/12 /2021 on the ground of suppression the fact that she was suffering from DM Pulmonary embolism, Osteoporosis and Anxiety disorder prior to the inception of the policy and by further letter dated 22/01/2022 as per the O.P's final review the Policy was terminated on the basis of " non disclosure of diabetes since 08 months as per reports ".

             The complainant also argued in her plaint that she sent a legal notice to the O.P. on 02/03/2022 which was received by the O.P. on 05/03/2022 but no initiative had been taken by the O.P.

             The complainant therefore prays-

a) For a deduction upon the O.P. to pay a sum of rupees 1,90,000/- (Rupees One Lakh Ninety Thousand) only towards the medical expenses incurred by the complainant along with interest @ 18% on the said amount from the date of operation till payment is made.

b) For a direction upon the O.P. to pay a sum of rupees 6,00,000/- (Rupees Six Lakh) only to the complainant on account of compensation for the sheer negligence of service and harassment of the complainant { total claim Rupees 7,90,000/- ( Rupees Seven Lakh Ninety Thousand)only }.

c) For a cost of the proceeding.

d) For any other relief to which the complainant may be found entitled.

            List of documents filed by the complainant:

1) Annexure 1- Copy of Optima Restore Proposal Form.

2) Annexure 2- Revised Counter offer of the opposite party dated 23/04/2021.

3) Annexure 3- Copy of the Insurance Policy being number- 2805 - 2041- 4585 - 0200 - 000.

4) Annexure 4- Copy of Letter dated 23/08/2021 of the opposite party rejecting the cashless facility for the complainant.

5) Annexure 5 series- Copy of the Discharge Summary dated 23/08/2022 and copy of the Discharge Summary dated 26/08/2022.

6) Annexure 6 series- Copy of the claims form for Health Insurance Policies of the opposite party.

7) Annexure 7 series- Copy of correspondences of the complainant in the matter of settlement of her claims under the Policy.

8) Annexure 8 series - Copy of Letter of repudiation dated 31/12/2021 and copy of Final review dated 22/01/2022.

9) Annexure 9- Copy of certificate dated 14/01/2022 issued by Neotia Getwel Health Centre.

10) Annexure 10- Copy of Certificate dated 18/01/2022 issued by Dr. Arya Gopi, MD, Pulmonary medicine, Christian Medical College, Vellore.

11) Annexure 11 series- Copy of Letter dated 01/01/2022, 08/01/2022, 16/01/2022 issued by the opposite party to the complainant.

12) Annexure 12 series- Copy of the Notice issued by Sri Subhash Chandra Roy, Advocate dated 02/03/2022 under registered cover with A/D along with the postal receipt.   

13) Annexure 13 series- Copy of Medical Bills.

            The O.P., the manager HDFC ERGO General Insurance Company Ltd., Siliguri Branch Office, 1st Floor, Sona Complex, Sevoke Road, P.S.- Bhaktinagar, Siliguri, District:- Jalpaiguri- 735008, contested the case by filing Written Version (W.V.) and as per his W.V. the case is as follows-

            The O.P. argued in his W.V. that the complainant has not only deliberately suppressed her past history of Pulmonary Embolism, Osteoporosis, Anxiety Disorder but also regular medication taken by heart for the same proposal form. The O.P. also added that it was extremely unfortunate that the complainant admitted in the hospital's admission record, where she got admitted, about her past illness, however she deliberately suppressed the above material facts in the Proposal Form and hence, the complainant breached the very principal of "utmost good faith", which must be observed by the contracting parties under contract of insurance.

            The O.P. also argued in his W.V. that the complainant submitted a Proposal Form for taking an Optima Restore Individual Policy for herself for a sum insured of Rs. 5,00,000/- (Rupees 5 lakhs) only along with payment of premium of Rs. 11,981/- (Rupees Eleven Thousand Nine Hundred and Eighty One) only and on the basis of declaration made by her in the Proposal Form, the O.P. No. 2 issued a policy to her vide Policy Number- 2805 2041 4585 0200 000 thereby accepting risk commencing from 30/ 04/ 2021 to 29/ 04/ 2022 where the benefits under the Policy, however, subject to certain conditions and exclusions which have been clearly, specifically and categorically mentioned in the said policy. The O.P. also added in his WV that the ensured disclosed her history of Diabetes Mellitus in the proposal form however, the insured failed to disclose the history of Pulmonary Embolism, Osteoporosis and Anxiety Disorder and the ensured was diagnosed with Osteoporosis and pulmonary embolism on 29/03/2021 and the policy was obtained by insured from 30/ 04/2021 and also the insured while filing the PF failed to disclose that she had history of Osteoporosis, Migraine and Anxiety Disorder. The O.P. also added that all Pulmonary Embolism and Osteoporosis was diagnosed on 28/03/2021, whereas the line of treatment was finalised which clearly shows that the complainant was aware of the symptoms and proposed line of treatment and its diagnosis prior to the inception of policy and hence, the cashless facility was rejected by the answering O.P. as the current illness had direct connection with the non disclosed illness.

            The O.P. also argued in his W.V. that the complainant later submitted her said claim as reimbursement vide Claim I.D. No. RR- HS21- 12657625 on 18/09/2021 to the O.P. with clinical reports, discharge summary and medical bills for reimbursement of Rs. 1,20,183/- (Rupees One Lakh Twenty Thousand One Hundred and Eighty Three) only incurred for the treatment of paroxysmal supraventricular tachycardia during her hospitalisation from 19/08/2021 to 23/08/2021 at Christian Medical College, Vellore and the discharge summary further suggests that the complainant was already ever illness before admission to the above side hospital and deliberately suppressed the above facts for the reason best known to her and for this reason the O.P. repudiated the alleged claim and also cancelled the Policy ab initio on the ground of deliberate and fraudulent suppression of above material facts (her past medical history/ condition) and communicated vide its letter dated 16/01/2022 to the complainant.

             In his W.V. the O.P. specifically denied that an extra premium of Rs. 2,093/- (Rupees Two Thousand and Ninety Three) only was charged by answering opponent for medical condition and amount of Rs. 1,773/- (Rupees One Thousand Seven Hundred and Seventy Three) only was charged by the answering opponent as the complainant disclosed medical history of Diabetes Mellitus only while inception of the policy and the compliment also failed to disclose that she is also suffering from embolism, migraine, anxiety disorder and osteoporosis and she was suffering from aforesaid diseases from 29/03/2021 and the policy coverage started from 30/04/2021 and further the O.P. came to know the above deliberate suppression of material facts after receiving the clinical reports and hence, thereafter sent the repudiation later dated 31/12/2021 and therefore, the question of deficiency in service and illegal trade practice on the part of O.P. does not arise at all in the present case.

     The documents filed by the O.P. are follows:

1) Annexure A- Copy of proposal Form.

2) Annexure B- Copy of Policy.

3) Annexure C- Terms and Conditions of the policy.

4) Annexure D- Discharge Summary.

5) Annexure E- Copy of denial of cashless service Letter dated 23/08/2021.

6) Annexure F- Copy of Claim Form.

7) Annexure G- Copy of Discharge Summary.

8) Annexure H- Copy of Repudiation Letter.

Points for consideration

1) whether the complainant consumer?

2) whether the case is maintainable under the CP act 2019?

3) weather there is any deficiency in service in the part of the O.P as alleged by the  complainant?

     All the points are taken up together for consideration and decision.

            Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by both parties. We are also heard arguments advanced by both parties in full length.

             It is very much clear from the evident that the complainant have a mediclaim policy in HDFC ERGO (General Insurance Company Limited), Siliguri Branch Office, 1st floor, Sona Complex, 3rd Mile, Sevoke Road, P.S. - Bhakti Nagar, Siliguri, District- Jalpaiguri-735008 and the said Policy, being number:-2805-2041-4585-0200-000, period of coverage from 30 /04/2021(17:45 Hours) to 24:00 hours on 29/04/2022 against payment of healthy premium to the tune of Rs. 11,981/- (Rupees Eleven Thousand Nine Hundred and Eighty One) only for total some assured of Rs. 5,00,000/- (Rupees Five Lakh) only.

             It is pertinent to mention that the Policy was charged with additional premium of Rs. 2,093/- (Rupees Two Thousand and Ninety Three) only for mediclaim condition which was part and parcel of the policy wordings.  Thus the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act-2019 and also there is no doubt that this Commission has its jurisdiction to decide this case. The complainant had filed this case within the limitation period and thus this case is very much maintainable under the C.P. Act 2019.

             It is very much clear from the evidence that the complainant have a mediclaim policy and the said policy was charged with additional premium of Rs.2093/- (Rupees Two Thousand and Ninety Three) only for medical condition which was part and parcel of that policy and which was also mentioned in the "Optima Restore Proposal Form" point No 6(ll). It is also very much clear from the Annexure 2 of the documents filed by the complainant that an additional fees of Rs.2093/- (Rupees Two Thousand and Ninety Three) only was paid to the O.P. by the complainant. It is very much clear from the evidence that the complainant admitted for treatment in the hospital and total expenditure of Rs.1,90,000/- (Rupees One Lakh and Ninety Thousand) only and there is no doubt that the complainant was informed this matter to the O.P. in time. On 31/12/2021 the O.P. repudiated the claim on the ground that the complainant not disclosed Diabetes Mellitus in her proposal form but it is clear from the proposal form that the fact is not true. Hence, this Commission is of the view that the conduct of the insurance company amounts to unfair trade practice and there is a deficiency of service also thus  the complainant is entitle to get a relief from this Commission.

             Hence it is

                                                                   O R D E R E D

            That the consumer case number 34/2022 be and same is allowed on contest against the O.P. This Commission, based on the evidence adduced by the parties, allowed the complainant in part, directing the HDFC ERGO (General Insurance Company Limited) to pay the amount of Rs. 1,90,000/- (Rupees One Lakh Ninety Thousand) only to the complainant within 30 days from this order failing which the complainant is entitled to get 6% p.a. simple interest from the date of filing of this case till the realisation of the entire amount . Further, the complainant is also entitled to get Rs.3000/- (Rupees Three Thousand) only for compensation and Rs.2,000/- (Rupees Two Thousand) only for litigation cost.

            Let a Copy of this judgment be given to the parties directly or through their representative Ld. Advocates for compliance free of cost.