Filed on 26.7.17
Judgment : Dt.27.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Tapan Kumar Dhar against (1) The Manager, Branch Office, Star Health and Allied Insurance Co. Ltd. and (2) The Manager, Zonal Office Kolkata, Star Health and Allied Insurance Company Ltd.
Case of the Complainant in brief is that on persuasion of an Insurance agent namely Ridhi Gol, the Complainant and his wife, insured themselves under Red Carpet Policy of Star Health and Allied Insurance Co. ltd. and obtained a policy being Policy No.P/190000/01/2013/0059) by paying an amount of Rs.19,000/- and thereafter renewed the policy for four consecutive years by paying premium. The Complainant has stated that he had to get admitted at Hospital and remain there on and from 22.6.2015 to 27.6.2015 and the Insurance Co. on prayer made by the Complainant approved the cashless facility in favour of the Complainant and paid an amount of Rs.17,000/-. The Complainant further stated that on 19.4.2017, the Complainant had to get admitted in Sri Aurovinda Seva Kendra on emergency basis on suggestion of attending doctor of that Institution (OPD) and another prayer for approval of cashless treatment was forwarded to the OP Insurance Company but the OP Insurance Company denied the same citing undisclosed pre-existing disease as a result the Complainant had to pay Rs.19,334/- for cost of treatment for the period 19.4.2017 to 22.4.2017 though the said Insurance Policy was in force at that point of time. The Complainant further stated that he sent ten letters to the OP insurance Company but the OP did not take any action though the Complainant had paid premium on regular basis but did not get desired benefit.
So, he has filed this case praying for direction upon the OP to provide the Complainant with the history of disease as per record maintained by them to provide proper justification of rejection of cashless treatment to pay Rs.2,00,000/- towards compensation, to pay another amount of Rs.50,000/- towards compensation and Rs.30,000/- towards litigation cost.
The OP contested the case by filing written version stating, inter alia, that the insured/Complainant has history of syncope yesterday night of Ankylosing Spondylitis which he has not disclosed at the time of inception of the policy. Further, the OPs have stated that as per condition No.9 of the policy the company shall not liable to make any payment under the policy in respect of any claim if information furnished at the time of proposal is found to be incorrect.
Both parties adduced evidence on affidavit followed by cross examination and reply thereto. The Complainant adduced photocopies of policy OPD prescription of Sri Aurobindo Seva Kendra, test reports, such as Echo-cardiography, x-ray, holter, etc.
In course of argument, Ld. Advocate on behalf of the Complainant narrated the facts mentioned in the petition of complaint. Ld. Advocate of Opposite Party relied upon the decision of –
- Reported in CPJ March 2013 [ Kamal Sharma VS LICI] NCDRC Page – 606
- CPJ September, 2013 [Kapil Sharma VS LICI]NCDRC Page-644
- CPJ September, 2013 [Rajesh Sharma VS LICI] NCDRC Page-650
- CPJ April 2014 [Max Newyork vs Amaresh Reddy] NCDRC Page – 38
- CPJ October, 2013 [LICI VS Banwarilal Jadav] NCDRC Page-38
- SC Case No.fa/166/2013 [Sadhan Kumar Saha vs United India Insurance].
- SC Case No.FA/246/2013
- SC Case No.FA/977/2013
- CPJ 2012 LICI vs Anupama and Ors.
Points for determination –
- Is the Complainant Consumer under the OP?
- Is there any deficiency in providing service on the part of the OP?
- Whether the Complainant is entitled to any relief as prayed for?
Decision with reasons
Point No.1:- The Complainant hired as well as availed the service in respect of Insurance provided by the OP Insurer by paying consideration as to premium and thus became consumer under the OPs.
Point No.1 decided accordingly.
Point No.2:- Admittedly the Complainant and his wife obtained an Insurance Policy namely Red Carpet Policy with cashless facility insured by the OP insurer which came into force on 5.11.2012. It is further admitted that the said policy had been being renewed yearly by paying requisite premium and the same was accepted by the OPs. It is also admitted that the Complainant had been admitted to Sri Aurobindo Seva Kendra on 19.4.2017 and thereafter discharged on 22.4.2017. It is alleged by the Complainant the cashless facility had not been provided to him by the Insurer on the pretext of suppression of pre-existing disease by the Complainant and repudiated the claim of the Complainant vide letter dt.22.4.2017
Now, the moot point is whether the OP insurer was justified to repudiate the claim for cashless facility as prayed by the Complainant. It is the specific defence of the OPs in support of the repudiation that the cashless facility is not admissible since the Complainant had suppressed the history of pre-existing disease at the point of time of obtaining policy. It is the specific defence of the OPs on perusal of the document submitted by the treating Hospital it had been found that the insured had the history of syncope and Ankylosing spondilytis and from the said finding it was observed that though the Complainant had been suffering from those ailment since 6 years at the time of inception of the policy he did not disclose the same but the OPs by their internal evaluation came to know the same and non-disclosure of such pre-existing disease resulted in repudiation of claim filed by the Complainant.
It is reiterated by the OPs that they have come to know by their internal evaluation that the Complainant was suffering from Syncope and ankylosing Spondylitis for 6 years prior to the date of inception of policy but they failed to file any document related to their internal evaluation wherefrom it would have been evident that finding of their evaluation i.e. pre-existing disease of the Complainant was prevailed. Under such circumstances, the shifted onus upon the OPs in relation to the claim of pre-existing disease had not been discharged. The decision of Higher Forums as relied by the OPs is not applicable to the instant case since in all of those cases the Insurers had been able to prove the existence of pre-existing disease of the insured by adducing documentary evidence.
It is further observed that in course of cross examination in the form of questionnaire the Complainant in question No.2(a) as ked the OP – Do you have any evidence to prove that the Complainant had Ankylosing Spondylysis for 6 years at the time of inception. In reply to which OP stated – It is a matter of medical record. However, no such medical report has been furnished before us by the OP insurer.
Under such state of affairs, it is evident that the OPs are not justifiably repudiated the claim.
In such view of the matter, we are inclined to hold that there is deficiency on the part of the OPs in providing service by repudiating the claim of the Complainant a baseless ground.
Point No.2 decided accordingly.
Point No.3 :- Since this Forum observed that the OP failed to substantiate their averment as to pre-existing disease there is no necessity to allow prayer No.A & B.
At prayer No.C the Complainant has prayed Rs.2-lakhs as sum assured of the policy in absence of effective service by the Insurer but it is observed that the Complainant had availed the cashless facility treatment by virtue of this policy and, therefore, it cannot be held that the insurer never provided any effective service. In fact the OP insurer did not provide effective service on that point of time wherefrom the cause of action has arisen but it does not necessarily meant that all along they provided ineffective service. Hence this prayer is not allowed.
In prayer No.D the Complainant has prayed for compensation of Rs.50,000/- for causing harassment etc. by the OP to the Complainant who is a senior citizen. Considering the circumstances, we allow this prayer. Further, an amount of Rs.10,000/- as to litigation cost is also allowed.
Point No.3 is decided accordingly.
In the result, the Consumer Complaint succeeds.
Hence,
ordered
That CC/417/2017 is allowed in part on contest with cost . The OPs are directed to pay Rs.50,000/- to the Complainant within one month. The OPs are also directed to pay Rs.10,000/- towards litigation cost within the aforesaid period failing which the entire amount shall carry interest @ 9% p.a. for the default period.
