Before the District Consumer Dispute Redressal Commission [Central District]-VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-125/04.06.2019
Manish Panwar son of Shri Mahender Singh
R/o 421-A Shahpur Jat, New Delhi-110049 …Complainant
Versus
Oriental Insurance Co.(through its Managing Director)
12-B & 12-C, Gopala Tower, Rajendera Place
New Delhi -110028 ...Opposite Party
Date of filing: 04.06.2019
Date of Order: 15.01.2024
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) - The complainant/Insured filed the complaint against his Insurer/OP for allegations of deficiency of services because declining of reimbursement of hospitalization & other medical bills of treatment of his father Shri Mahender Singh, initially by refusing cashless facility of hospitalization & medical bills and subsequently- by declining claim of such bills of Rs.3,15,875/- despite it were covered under happy family floater Insurance Policy. It was declined on the false pretext of pre-existing health ailment. Whereas, the complainant protests and denies this plea of OP that his father’s current ailment has nothing to do with previous sickness of over 10 year back.
The complainant seeks in this complaint reimbursement of medical bills of Rs.3,15,875/- along with interest of 18%pa from the date of demand of 15.06.2017 till the date of payment, damages of Rs. 1,75,000/- which includes Rs. 1,00,000/- compensation in lieu of mental agony, legal notice charges of Rs. 10,000/-, Rs. 50,000/- towards the complaint and other incidental case hearings cost for the lawyers engaged of Rs. 5,000/- and other appropriate relief under the circumstances.
1.2. The OP opposed the complainant by denying allegations of deficiency of services or of unfair trade practice and OP also justifies repudiation of claim. It was rightly declined and then claim was also declined as per terms of policy, since the patient was k/c/o pulmonary TB, he was on inhaler aerocort for last 1 year, irregular t/t bidi smoker- 1 bundle, 10 years back and he had submitted the claim for Lt. sided Pneumothorax with Bronchi, Emphysematous change, Fibroatelectasis in Max Healthcare Hospital. As per policy wordings complainant’s claim was not found payable under the exclusion clause 4.1. It cannot be construed deficiency of services. Thus, the complaint is without cause of action, complainant is not entitled for any claim/relief being claimed.
2.1. (Case of complainant) –On 06.08.2014 the complainant purchased a happy family floater policy first time from the OP to cover the medical exigency for him and his family members and then insurance policy was got renewed from 2016 to 2017. Unfortunately, on 05.06.2017 during the tenure of insurance policy, complainant’s father was admitted to Max Healthcare Hospital because of respiratory disorder, he was diagnosed as Pneumothorax, he hospitalized for five days and discharged on 10.06.2017. He was readmitted on 20.06.2017 in Max Healthcare Hospital, Saket for the same ailment and treatment, he was discharged on 22.06.2017.
2.2 The OP declined cashless facility for the treatment of his father, consequently, the complainant had to spent Rs. 3,15,875/- from his pocket on account of hospitalization, treatment and other medical expenses for his father. The entire detail, medical record and bills were furnished to the OP to consider the claim, however, by taking disadvantage of previous medical history of the patient, the OP tried to spurn away from its responsibility to refund the claim. The OP by its communication dated 28.07.2017 rejected the claim of complainant by relying upon clause no. 4.1 of insurance policy that complainant’s father-patient was having pre-existing health ailment. The file of complainant was closed as no claim.
Whereas, the complainant furnished two certificates dated 06.06.2017 and 08.06.2017 issued under the signature of Dr. Vijay Krishna and Dr. Ashish Jain respectively, certifying that illness of insured/patient did not have anything with the previous history of pulmonary tuberculoses [a disorder, for which the patient was treated and for completely cured about ten years back]. Further, it was also certified by Dr. Vinay Krishna that at the time of admission of patient, it was thought that the insured/patient may have suffered on account of COPD but the symptoms settled down for the treatment Pneumothrax. Moreover, the complainant also furnished to OP the diagnostic laboratory report dated 21.07.2017, which shows the patient/insured did not have tuberculoses at the time when treated at Max Healthcare Hospital, Saket. There is no room for any other inference except that the treatment given for illness at the Max Healthcare Hospital is nothing to do with the previous ailement/treatment of that disorder of 10 years back. But OP denied the legitimate claim to wriggle out from its obligation and to cause losses to the complainant.
2.3 The complainant has been requesting the OP for reimbursement of valid claim of treatment and hospitalization expenses of his father but OP is not paying any heed, that is why the complainant was constraint to send legal notice dated 26.09.2018 to pay such claim amount of Rs. 3,15,875/- within 15 days. The OP replied the notice and once again repudiated the claim of complainant. That is why the present complaint for reimbursement of valid claim, compensation, cost, etc as denial of valid claim is deficiency of services and unfair trade practice.
2.4. The complainant is accompanied with documentary record of insurance policies, copies of medical records, bills, discharge summary, copies of letters dated 06.06.2017 & 08.06.2017, repudiation letter dated 28.7.2017, copy of lab report dated 21.07.2017, copy of legal notice dated 26.09.2018 and OP’s reply dated 02.11.2018.
3.1 (Case of OP)- The reply of OP is composite that some of the facts are not disputed and other are denied. There is no dispute in respect of issue of insurance policy by OP being happy family floater policy 2015 vide policy no. 211201/48/2017/1689 for sum of Rs. 6,00,000/- w.e.f. 06.08.2016 to 05.08.2017 and the insurance policy was issued and its policy schedule with terms and conditions and exclusions.
3.2. However, the OP denies the allegations of the complaint. The complaint is opposed by the OP that there is no cause of action in favour of the complainant and against the OP. There is suppression of material facts by the complainant about previous ailment of his father, besides he failed to furnish the discharge summary of both hospitalisation. apart from furnishing other relevant documents pertaining the second hospitalization, which do not entitle the complainant for any reliefs being claimed. Since the complainant’s father was already suffering from ailments and as per exclusion clause 4.1 of the policy, the OP is not liable to make any payment (para 3 of the reply reproduces exclusion clause 4.1 of policy).
3.3. The OP also denies allegations of deficiency of services and OP is also confirming that repudiation of claim was as terms of policy. The wordings of the insurance policy are to be construed strictly and repudiation of the claim is within the ambit of policy. The claim was repudiated vide letter dated 28.7.2017 on the recommendation of TPA, which was reaffirmed by communication dated 01.11.2017 and also in reply dated 2.11.2018 to legal notice dated 26.09.2018. Otherwise, the complaint has been filed by presenting facts to gain sympathy of the Commission on the ground of sickness of insured vis-à-vis the amount claimed is exorbitant, excessive, imaginary, improper, arbitrary and baseless. The complaint is liable to be dismissed.
3.4 The reply is accompanied with copy of insurance policy with terms and conditions.
4.1 (Replication of complainant) – The complainant in his replication reaffirms his case and he denies the allegation of written statement by emphasizing there was no concealment of facts and his father’s treatment in the Max Healthcare Hospital had no bearing with the recovered ailment/disorder of 10 years back The rejection of claim was without any substance, the doctors have also issued certificates, which also dispel the stand of OP, however, it was not considered and appreciated by the OP.
4.2. The replication is accompanied with the medical bills and record (which are also showing date of admission and discharged of both episodes).
5.1. (Evidence)- The complainant led evidence by filing his detailed affidavit with the support of documentary record, which was appended with pleading.
5.2. The OP also led its evidence by filing detailed affidavit of Ms. Mandakini Balodhi, Senior Divisional Manager in Division-II, Karol Bagh, New Delhi, it is on the lines of reply/written statement.
6. (Final hearing)- Both the parties have filed their written arguments. At the stage of oral submissions Sh. Dhruv Sharma, Advocate with complainant and Sh. Bhupesh Chandna, Advocate for OP presented their case. Their rival contentions are not repeated here, since it will be considered and assessed while appreciating the same.
7.1 (Findings)- The submissions of both the side are considered, analyzed and assessed including evidence of parties, the documentary record besides settled principles of law.
It is manifest from plain reading of case of parties, that the relationship of the complainant and of the OP are of the Insured and of the Insurer respectively, the medi-claim policies were issued from time to time inclusive of latest policy by OP, its tenure and premium paid are not in dispute. The latest policy wef from 6.8.2016 to 5.8.2017 also gives detail of previous two policy wef 6.8.2014 to 5.8.2015 and 6.8.2015 to 5.8.2016. It is also not disputed that the complainant's father was hospitalised and he was given medical treatment as indoor patient of Max Healthcare Hospital and the complainant had paid the all medical bills from his own pocket, since cashless facilities were not extended.
7.2. However, the basic issue involved is 'whether or not the complainant's father had pre-existing ailment or was it concealed from the OP? Whether or not the complainant is entitled for reimbursement of medical bills claim under the insurance policy and other relief vis-à-vis the exclusion clause 4.1 would be applicable? The evidence of the parties is to be considered in summary way for adjudicating these issues.
7.3 In order to appreciate the rival plea of parties, it is relevant to refer law laid down in "Jagdish Vs LIC of India [FA no.1055/2003 dod 17.12.2007, decided by Hon'ble State Commission]", in which circumstances and parameters for determination of pre-existing disease were laid down in detail, its paragraph 10 is reproduced -
"Para 10 -Our conclusions on the meaning and import of words disease, pre-existing
disease for the purpose of medi-claim insurance policy, as under:
(i) Disease means a serious derangement of health or chronic deep-seated disease
frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the medi-claim policy,
(ii) Such a disease should not only be existing at the time of taking the policy but also
should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease,
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and
the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease,
(iv) If insured had been even otherwise living normal and healthy life and attending to
his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months,
(v) Disease that can be easily detected by subjecting the insured to basic tests like
blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person,
(vi) Insurance company cannot take advantage of its acts of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies do not discharge this obligation as half of population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invoke-able,
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or
remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above,
(viii) Day to day history or history of several years of some or the other physical problem
one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking medi-claim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease,
(ix) For instance, to say that insured has concealed the fact that he was having pain in
the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so,
(x) Non-disclosure of hospitalization/or operation for disease that too in the
reasonable proximity of the date of medi-claim policy is the only ground on which insured claim can be repudiated and on no other ground.
7.4 Since there is issue of pre-existing disease or its concealment or of exclusion clause 4.1, they are inter-related, thus they are taken together. By considering facts, features, evidence of parties along-with the settled law, the following conclusions are drawn:-
(a) There is no dispute of latest renewed insurance cover/medi-claim policy is w.e.f. 05.08.2016 to 06.08.2017 . OP has also filed terms & conditions policy. The policy holder is complainant and there are five other beneficiaries, inclusive of patient/insured Mahender.
(b) The complainant had furnished (to OP under acknowledgement at page 31/annexture-P3) the requisite medical papers, discharge summary and certificates issued by the doctors to the effect that the patient was admitted the hospital as type-II respiratory failure, which was thought to be due to COPD (COPD means chronic obstructive pulmonary disease) but it was settled down with the treatment. Similarly, another certificate was also issued that previous history of pulmonary tuberculosis of ten year back has no bearing with the current illness for his admission for Pneumothorax.
(c) It is settled law, by case of Jagdish Vs LIC of India [FA no.1055/2003], when the insured has been leading normal life, or when insured had ailment and treatment for Pneumothorax in Max Healthcare Hospital, it cannot be treated as pre-existing disease of Pneumothorax, especially after previous treatment of tuberculosis about 10 year back, the insured patient had recovered and was leading normal life. Had the complainant's father been under continuous ailment or treatment for such ailment of previous disease, then it would was to be evaluated from that prospective; that situation is not existing.
(d) The OP has not brought on record the proposal form nor it has been proved that when the insurance policy was taken whether the complainant was enquired about previous medical history and for want of proof of such circumstances by OP, it cannot be inferred that there is concealment of previous medical history to be construed pre-existing disease.
(e) The OP has reservation about not furnishing discharge summary of second episode, it is also not filed on record, however, medical record furnished inclusive bills, clearly showing that the patient-insured was admitted from 5.6.2017 to 10.6.2017 on the first occasion and secondly from 20.6.2017 to 22.6.2017.
(f)In view of settled law and facts discussed hereinabove, the case of complainant's father is to be construed a case of non-existence of pre-existing ailment, consequently the question of concealment/suppression of disease does not arise and
(g) The OP declined the claim on ground of exclusion clause of 4.1 in respect of pre-existing disease, however, it stand established that it is not a case of pre-existing ailment or to construe concealment of ailment. Thus, exclusion clause 4.1 does not apply. Consequently, there was no reason to decline reimbursement of medical bills claim being covered under the policy.
7.5. Further, by taking into account the facts, features, material and record proved, the following conclusions are also drawn:-
(i) The complainant has proved medical papers of the treatment rendered, reports, certificates by doctors & hospital and other medical bills in sequence, which proves that the complainant's father was admitted in Max Hospital twice for five days, when he was discharge from 10.06.2017 and thereafter after his admission, he was discharge on 22.06.2017. The medical expenses of Rs. 3,15,876/- are pertaining to his hospitalization & treatment The complainant has proved valid medical claim covered against risks under the policy having validity period from 08.06.2016 to 06.08.2017. Simultaneously, there is nothing surfaced in the evidence of OP that bills or its amount is disputed.
(ii) The patient insured was admitted in Max Healthcare Hospital and the complainant has proved letter/claim (page-31 of the paper book/Annexure-P3) that on 16.06.2017, all the documents were furnished with the OP and in the said claim letter dated 15.06.2017, first discharge summary was furnished with the OP.
(iii) Since, the circumstances are establishing case of medical treatment and expenses, which are covered within the medical policy as well as during the tenure of policy but OP failed to pay valid claim amount of Rs.3,15,875/-. It is deficiency of services, when valid medical claim was not reimbursed vis a vis exclusion clause of 4.1 does not apply to the situation in hand as already held.
(iv) The complainant made his all efforts for getting reimbursement of the claim of medical bills and expenses, firstly he could not succeed in cashless facilities and then his entire claim was declined. Consequently, he had faced trauma for getting the claim reimbursed.
7.6. Therefore complainant is held entitled for reimbursement of medical claim bills of Rs.3,15,875/-.
7.7. The complainant has claimed interest at the rate of 18% pa. Although, interest component is not part of the insurance policy contract, however, the complainant has parted with the money while paying the medical bills, therefore, had the medical bills were reimbursed the complainant would not have been deprived of his money. Therefore, by taking into account totality of circumstances, simple interest at the rate of 4%pa from the date of complaint till the date of realization of amount is determined in favour of complainant and against the OP.
7.8 The complainant has also sought damages of Rs.1,00,000/- towards harassment, mental agony and litigation costs of Rs. 75,000/-, therefore, considering totality of circumstances of case of both sides especially concluded in aforementioned paragraphs, compensation of Rs 25,000/- (being consonance to the situation) is allowed in favour of complainant and against OP. The cost of litigation is also determined as Rs.15,000/-in his favour and against the OP.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay/reimburse medical bills amount of Rs.3,15,875/- along with interest of 4%pa from the date of complaint till realization of amount, besides to pay compensation of Rs.25,000/- & costs of Rs.15,000/- to complainant. OP is directed to pay the amount within 45 days from the date of this order. In case amount is not paid within 45 days from the date of order, then interest will be at the rate of 6% pa on amount of Rs.3,15,875/- (instead of 4%pa) to be from the date of complaint till realisation of amount..
9. Announced on this 15th day of January, 2024 [पौष 25, साका1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules
and to upload it on the website of this Commission. [Inder Jeet Singh] President
[Shahina]
[ijs-10] Member (Female)
