Haryana

Ambala

CC/195/2016

Devinder Kumar - Complainant(s)

Versus

The New India Assurance Co.Ltd - Opp.Party(s)

R.C. Tayal

10 May 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                           Complaint case no.        : 195 of 2016.

                                                           Date of Institution         : 29.04.2016.

                                                           Date of decision   : 10.05.2018.

 

Devinder Kumar Batra son of Shri Ram Asra aged about 39 years resident of house No.3347/2, Patel Road, Ambala City.

……. Complainant.

                                      Versus

 

1.The New India Assurance Company Limited 5406, Shree Complex, 2^nd Floor, Cross Road No.3,Punjabi Mohalla, Ambala Cantt. through its Branch Manager.

2.The New India Assurance Company Limited registered and Head Office 87- Mahatma Gandhi Road, Mumba,400001.

3.Shri Vishal Goyal Insurance Policy Agent having I.D.No.7834414 c/o The New India Assurance Company Limited, 5406, Shree Complex, 2^nd Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt.

                                                                             ….…. Opposite parties.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

Present:       Sh.Baikunth Nath, counsel for complainant.

                   Sh.S.C.Jaiswal, counsel for OP Nos. 1 &2.                                                         OP No.3 exparte.

 

ORDER

                   The complainant has filed the present complaint with the averments that he had purchased a Floater Medi-claim Policy bearing No.35350134142800000095 from Op No.3 in his name as well as in the name of his wife Renu for a sum of Rs.3,00,000/- having validity from 06.10.2014 to 05.10.2015 by paying a sum of Rs.5854/- as premium vide receipt dated 06.10.2014. The Op No.3 had verified and checked all the documents and thereafter OP Nos.1 & 2 had issued the policy.  The complainant got unwell on 15.04.2015 and visited Sant Hospital with complaint of headache and vomiting etc. where he was treated. The complainant felt ill on 01.05.2015 and again rushed to Sant Hospital where from he was referred to Max Super Speciality Hospital and paid Rs.1000/-. The complainant had paid Rs.15,000/- to Max Hospital vide receipt No.MHDI40163 dated 01.05.2015  and remained there qua treatment of disease and was required to pay total Rs.2510.60/- including Rs.15,000/- paid as advance against which a settlement receipt vide No.MHRI28908 dated 02.05.2015 for Rs.2,36,060/- was issued by Max Hospital. The complainant had further spent Rs.710.38/- vide receipt No.201747/-, Rs.106.50/- vide receipt Nos.201749 and 201431, Rs.2167/- vide receipt No.25324, Rs.600/- vide bill No.MHCS316449. The complainant has spent a sum of Rs.2,55,643.88/- on treatment. The complainant was neither aware nor treated earlier in any hospital for the alleged disease and the terms and conditions have never been explained to him after filling the policy form. The complainant requested the Ops to pay the claim amount but they repudiated the claim vide letter dated 29.06.2015. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C14.

2.                          On notice, OP Nos. 1 & 2 appeared and filed their joint reply wherein it has been submitted that the complainant has not come to this Forum with clean hands as he was not leading a healthy life at the time of purchasing of medi claim insurance policy. In fact the complainant was suffering from pre-existing disease and he had purchased the policy in question in order to cheat and harm. The policy in question was subject to conditions of the policy. The claim was not payable and the same was barred under Clause 4.1 and 4.3 of the insurance policy and hence the claim was not payable as per Clause 4.4.6 htn, acs, actue wall mi, svd.  The complainant was promptly informed vide letter dated 30.05.2015 by Raksha TPA Pvt. Ltd. During inquiry it was confirmed that the complainant was suffering from hypertension which leads to complication for which he was allegedly treated. There is no deficiency in service on the part of the OPs. Other contentions have been controverted and prayer for dismissal of the complaint has been made. OP No.3 did not appear before this Forum and was proceeded against exparte vide order dated 05.05.2017. In evidence, the Op Nos. 1 & 2 have tendered affidavits Annexure RA, Annexure RB and document Annexure R1.

3.                          We have heard learned counsel for the parties and gone through the case file very carefully.

4.                          Undisputedly, the complainant and his wife had obtained an Floater Medical policy Annexure C2 through Vishal Goyal, agent for a sum of Rs.3,00,000/- and also paid premium thereof as Rs.5854/- Annexure C3 and this policy was valid from 06.10.2014 to 05.10.2015. On 15.04.2014 the complainant approached to Sant Hospital with a complaint of headache and vomiting etc. where he was treated and discharged on the same day but again the complainant fell ill on 01.05.2015 and visited Sant Hospital and referred to Max Super Specialty Hospital, Mohali as per referral slip Annexure C12 where he remained admitted from 01.05.2015 to 02.05.2015 and he incurred the amount of Rs.2,55,643/- Annexure C4 to Annexure C10 and stent was inserted by the treating doctor  as per discharge summary. As per the coronary angiography report it was the case of CAD, Single Vessel Disease and treating doctor had recommended The PTCA with stent to RC which was successfully inserted with DES to RCA.  The complainant has presented the bill to the OP for reimbursement but the OP repudiated the claim on the ground that Complainant had past history of hypertension, therefore, acute coronary syndrome/ acute wall myocardial infarction are the complications of hypertensionly. Hence the disease is pre-existing to policy inception date as policy is only 8 months old. Therefore, the claim non-payable as per Clause 4.1 (pre existing disease) and 4.3 (two year exclusion).  

                   As per the personal history of the patient in indoor papers, patient is reformed alcoholic and smoker. Smoker and alcohol both leads to hypertension. Therefore, disease is related to Alcohol and disease caused due to alcohol falls under permanent exclusion of the policy.

                             We have gone through the record, there is no document on the file from which we can presume that complainant was having pre-existing disease. However, the OPs have filed the affidavit Annexure RB of Dr.Rakesh Kalra who is authorized signatory of Raksha PTA Pvt. Limited and perusal of the aforesaid affidavit he has mentioned that as per past medical history indoor case paper of Devinder Kumar complainant was having history of hyper tension, therefore, acute coronary  syndrome/ acute wall myocardial infarction are the complications of hyper tension only, hence the disease is pre-existing disease but there is no record of the past history as mentioned in the affidavit has been placed on the file. Mere filing of affidavit of Dr.Rakesh Kalra, is not sufficient to prove that the patient was having pre-existing disease rather the complainant was initially admitted in Sant Hospital with complaint of headache and vomiting and that he was not suffering from any disease for which he was taken treatment from Max Super Speciality Hospital. So, the condition No.4.1 of the terms and conditions are not applicable to the complainant. So far regard the another condition 4.3.1 whereby the OPs had declined the claim of the complainant for exclusion clause of 2 years. We have gone through the terms and conditions mentioned in Annexure C1/ Annexure R/6, it is mentioned that unless the insured person has continuous coverage in excess of twenty four months with us, expenses on treatment of the following illness are not payable but perusal of illness list the disease of the complainant is not mentioned for which he had taken the treatment i.e. Coronary Artery Disease Single Vessel Disease PTCA with stent to RAC. The above said clause is also not applicable to the case of the complainant.

                                      We have also gone through the clause 4.4.6 HTN on the basis of which the claim of the complainant has declined vide repudiation letter Annexure C13 wherein it is mentioned that any person/patient is reformed alcoholic and smoker,  alcohol and smoking leads to hypertension, therefore, the disease is related to alcohol and disease caused due to alcohol falls under permanent exclusion of the policy but there is no document has been placed on the case file to show that the complainant was having any past medical history i.e. hypertension for consuming alcohol and smoking.

                                      In view of the above facts and circumstances and perusal of the terms and conditions the clause 4.1, 4.3 and 4.4.6 are not applicable to the present complaint and the case of the complainant is not covered under the above said condition. Learned counsel for the complainant has rightly relied upon the case laws titled as Nirmal Devi Vs. Birla Sunlife Insurance 2014 (3) CLT 207 (Rajasthan State Commission) wherein it has been mentioned that The burden heavily lies on the insurance company to prove the allegation to deliberate concealment and mis-representation- In the present case the respondent has failed to discharge the burden – An apparent look at the policy would show that the conditions are printed in such a small type that even a normal person cannot read them. That apart it has not been proved that the agent had fully explained all the conditions before getting the proposal form signed more so when the whole proposal form has been filled in by the agent, mere presumption never make any proof.  Learned counsel for the complainant has further relied upon case law titled as The Oriental Insurance Company Limited Vs. Vivek Rekhan  2014 (3) CLT 202 (Haryana State Commission)  wherein it has been mentioned that Unless the terms and conditions have been supplied to the complainant before taking the policy, the same cannot be enforced- Exclusion clause not binding- Oral version cannot take the place of proof unless supported with some documentary evidence.

          8.                          Keeping in view the above discussion as well as facts and circumstances of the case we are of the considered view that the complainant has been able to prove his case against the Ops by leading cogent and reliable evidence because the disease of the complainant for which he took the treatment had fallen during the subsistence of the policy and had spent Rs.2,55,643/- Annexure C4 to Annexure C10 on the treatment. The Ops have wrongly and illegally declined the genuine claim of the complainant; therefore, the repudiation dated 29.06.2015 Annexure C13 dated 29.06.2015 issued by the Ops is hereby quashed. Accordingly, we allow the present complaint with cost which is assessed at Rs.5,000/-. The OPs are further directed to pay a sum of Rs.2,55,643/- to the complainant alognwith interest @ 9% per annum to the complainant from the date of filing of the complaint till its realization. Copy of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

ANNOUNCED ON: 10.05.2018

                                               

(PUSHPENDER KUMAR)     (ANAMIKA GUPTA)      (D.N.ARORA)                      MEMBER                  MEMBER               PRESIDENT