Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 (as amended upto date) on the allegations that he has having account with Opposite Party No.2 bank bearing No. 60223530357 from the last so many years. Further alleges that in the year 2017 as per the suggestion of Branch Manager as well as agent of Opposite Party No.1, the complainant purchased policy i.e. Pro Health Group Insurance Policy from Opposite Party No.2 bearing No.1002000000100/00/00 valid for the period w.e.f. 27.12.2017 to 26.12.2018 against paid up premium of Rs.3980/- for sum assured of Rs.2 lakhs. Again in the month of May, 2020 on the asking of Opposite Party No.1, the complainant got renewed the said policy with the enhancement of sum assured from Rs.2 lakhs to Rs.5 lakhs valid for the period w.e.f. 100200000100/03/00 valid for the period w.e.f.02.06.2020 to 01.06.2021. In the said policy,  the complainant including his wife, son and daughters were covered regarding the medical  treatment/ health insurance of medical expenses of any type, during the tenure of the said policy for an amount of Rs.5 lakhs. Further alleges that during the policy period i.e. on07.03.2021, the complainant suddenly suffered pain in his chest and  took medicine from local doctor, but thereafter due to not feeling well with said medicines, the complainant was brought to Fortis Hospital, Mohali for proper check up on 08.03.2021 and with a complaint of ‘Dyspnea on Exertion’ and ‘Giddiness’ and on diagnosed by the doctors of Fortis Hospital found the complainant suffering from CAG, CAD, DVD, ADHF, HTN and after admitting vide UHID No. 10547241, started treatment and stunting to LAD was done  and discharged on 12.03.2021 from CCU (Cardiac Care Unit). In the treating hospital, the complainant spent Rs.2,84,949/- on account of treatment charges  and also spent more than Rs.1,50,000/- on account of medical expenses, travelling expenses and accommodation charges.                 After discharge, the complainant lodged the claim with the Opposite Parties for the reimbursement of his medical claim and also completed all the relevant formalities, but the Opposite Parties did not reimbursement the hospitalization charges despite repeated reminders and requests.  As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Parties may be directed to release the amount of Rs.5,50,000/- to the complainant and also to pay Rs.1 lakh   on account of compensation due to mental tension and harassment caused by the complainant besides Rs.20,000/- as litigation expenses.

2.       Opposite Party No.1-Insurance Company  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission.  Brief facts are that the complainant has concealed the material facts. The complainant was admitted at Fortis Hospital Mohali from 09.03.2021 to 12.03.2021 with the complaint of Coronary Artery Disease-DVD.  On verification of the case and hospitalisation documents multiple discrepancies and misrepresentation of the facts in the documents has been noted and the genuineness of the claim is not established. Patient has been noted to have past history of DM and HTN plus morbid obesity and diabetic mephropathy in multiple papers, inspite of raising multiple queries the complainant has not shared the consultation papers.  Papers from Fortis hospital also mention that the complainant is alcoholic. Said OPD slip submitted by the complainant as first consultation document is from March 2021 when the customer is alleging that it was first diagnosed, however there are no symptoms noted in the said OPD slip, the slips note that the patient was already diagnosed and recommended medication. As per the medical literature available on public domain, Morbid obesity is a chronic condition and takes time to develop. Similarly, for diabetic nephropathy, the diabetes would be chronic  enough in the claimant to develop kidney dysfunction. Diabetic nephropathy is the name given to kidney damage caused by diabetes.  Someone with diabetic nephropathy will also present with high blood pressure. HTN and DM have a direct relation with deranged kidney function has a direct  relation with long standing HTN as well.  Hence, the claim stands repudiated under clause VI.1 and VI.25 of the policy document.  On merits, Opposite Party No.1 took  up almost same and similar pleas as taken up by them in the preliminary objections and hence no illegality has been committed by the Opposite parties while repudiating the claim of the complainant and the complaint may be dismissed with costs. 

3.       Opposite Party No.2  appeared separately through counsel and filed written statement  taking preliminary objections  inter alia that the present complaint is not maintainable against Opposite Party No.2. The policy in question was issued by Opposite Party No.1 Insurance Company and the premium of the policy in question was paid to Opposite Party No.1 and thus, there is no relationship of insurer and insured between Opposite Party No.2 and the complainant and the present complaint is not maintainable against Opposite Party No.2. On merits, Opposite Party No.2 took  up almost same and similar pleas as taken up by them in the preliminary objections and prays for the dismissal of the complaint against the answering Opposite Party. 

4.       In order to  prove  his  case, the complainant has tendered into  evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C15 and  closed the evidence on behalf of the complainant.

5.       On the other hand,  to rebut the evidence of the complainant,  Opposite Party No.1 also tendered into evidence the affidavit of Smt.Swetha Nair, Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/8 and closed the evidence. Similarly, Opposite Party No.2 also tendered into evidence the affidavit of Sh.Amit Kumar, Branch Manager Ex.OP2/1 and closed the evidence on behalf of Opposite Party No.2.

6.       We have heard the ld.counsel for the parties, perused the written submissions of Opposite Party No.1 and  also  gone through the documents placed  on record.

7.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties has mainly reiterated the facts as narrated in the complaint as well as in the written statement respectively. We have perused the rival contentions of the parties and also gone through the record on file.

8.       The main contention of the complainant is that at the time of proposal the life assured complainant was not suffering any  disease, but the opposite parties intentionally and knowingly  repudiated the lawful and genuine claim of the complainant for the hospitalization of his medical treatment without application of mind. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant on the ground that on verification of the case and hospitalisation documents, multiple discrepancies and misrepresentation of the facts in the documents has been noted and the genuineness of the claim is not established. Patient has been noted to have past history of DM and HTN plus morbid obesity and diabetic mephropathy in multiple papers, inspite of raising multiple queries the complainant has not shared the consultation papers.  Papers from Fortis hospital also mention that the complainant is alcoholic. Said OPD slip submitted by the complainant as first consultation document is from March 2021 when the customer is alleging that it was first diagnosed, however there are no symptoms noted in the said OPD slip, the slips note that the patient was already diagnosed and recommended medication. As per the medical literature available on public domain, Morbid obesity is a chronic condition and takes time to develop. Similarly, for diabetic nephropathy, the diabetes would be chronic  enough in the claimant to develop kidney dysfunction. Diabetic nephropathy is the name given to kidney damage caused by diabetes.  Someone with diabetic nephropathy will also present with high blood pressure. HTN and DM have a direct relation with deranged kidney function has a direct  relation with long standing HTN as well.  Hence, the claim stands repudiated under clause VI.1 and VI.25 of the policy document. But we do not agree with the aforesaid contention of the ld.counsel for Opposite Party No.1. The onus to establish this fact is upon Opposite Party No.1 in this case.  We have perused the copies of  medical record placed by Opposite Parties of the treating hospital, but there is neither any affidavit nor  complete particulars of the investigator recorded in them. Even the original certificate has not been placed on the record. There is no affidavit of doctor of the treating hospital to establish this fact on the record regarding previous disease of insured. He is a private doctor and not posted in any recognized health institute or government hospital. We are unable to rely upon the above referred investigation report appended with the Photostat copy of  medical record of complainant. In the absence of any affidavit of investigator and the affidavit of treating doctor of the hospital, we do not place any reliance upon these documents, as pressed into service by the Opposite Parties in this case. Consequently, we are of this view that Opposite Parties have failed to discharge the onus solemnly laid upon it to prove this fact that life assured was suffering from above pre-existing disease before taking the policy and he deliberately and fraudulently concealed this material fact from Opposite Parties. We, thus, conclude that there is no substantive evidence on the record to prove this fact that life assured was suffering from any disease before he took the insurance policy and he willfully suppressed this fact fraudulently from the Opposite Parties. Moreover, if the life assured was suffering from any diseases prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”

9.       Furthermore,  hypertension and diabetes is not a material disease, therefore, non disclosure thereof is not a concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-

“So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

 We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease. On the other hand,  the rulings cited by ld.counsel for Opposite Party No.1 –Insurance Company are not applicable to the facts of the present case and the same are distinguished. 

10.     It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.  Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in  First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.

11.     The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored.  On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited,   cited by the ld.counsel for the Opposite Parties  are not applicable and relevant  to the facts of the present case.  The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability. The reliance of counsel for the appellant on law laid down in “Life Insurance Corporation of India Vs. Priya Sharma & others” 2012(4)CPJ-646, “Life Insurance Corporation of India & others Vs. Harbans Kaur” 2009(3)CPC-677, and “Life Insurance Corporation of India & another Vs. Ashok Manocha” 2011(3)CPC-285, would have been applicable, had this fact been established that life assured suffered from pre-existing ailment of kidney and he deliberately suppressed this fact fraudulently from the Opposite Parties, when he took the insurance policy. In view of our finding recorded above that Opposite Parties had failed to prove this fact that complainant was suffering from any pre-existing ailment and hence these authorities would not be attracted in this case. In this regard, on the same and similar facts and circumstances of the case, Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.62 of 2015  decided on 02.02.2017 in case India First Life Insurance Vs. Ms.Sudesh Rani also held so.   

12.     In such a situation the repudiation made by Opposite Party No.1- Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

13.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the claim of the complainant.

14.     Now come to the quantum of compensation.  The complainant has claimed the amount of Rs.5,50,000/- allegedly spent on his medical treatment, but perusal of the record i.e. billing sheet shows that he has placed on record the medical bills for an amount of Rs.2,84,949/-  and on the other hand, the Opposite Parties have not denied these actual expenses spent by the complainant on his treatment  and hence we hold that the complainant is entitled to the reimbursement of this amount.   

15.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Party No.1 -Insurance Company to pay Rs.2,84,949/- (Rupees two lakh eighty four thousands nine hundred forty nine only) to the complainant  alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 06.09.2021 till its actual realization.   The compliance of this order be made by Opposite Party No.1-Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.