Haryana

Yamunanagar

CC/586/2012

Inder Mohan Kumar S/o Krishan Lal Kumar - Complainant(s)

Versus

The Oriental Insurance Co.Ltd. - Opp.Party(s)

G.S.Reen

15 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 586 of 2012

                                                                                    Date of institution: 06.06.2012            

                                                                                    Date of decision: 15.06.2017

Inder Mohan Kumar aged about 68 years, S/o Late Shri Krishan Lal Kumar resident of House No.79, Prahaladpuri Colony, Near ITI Workshop Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

…Complainant.

                                                            Versus

1. The Oriental Insurance Company Ltd, having its Branch Office, Opposite Hindu Girls College, Court Road, Jagadhri, District Yamuna Nagar (Haryana) through its Branch Manager.
2. M/s Medi Assist India TPA Pvt. Ltd. having its Branch Office, F-2 Kailash Plaza, 2^nd Floor, H-252, Sant Nagar, New Delhi-110065 and having its Branch Office at SCO 61, 2^nd Floor, Phase 7 Mohali-160062.                                                                                                                                                                                           

                                                                                                       …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG……………..  PRESIDENT.

                        SH. S.C.SHARMA………………………… .MEMBER.

                        SMT. VEENA RANI SHEOKAND………… MEMBER

 

Present:           Shri G.S. Reen, Advocate for complainant.

                        Smt. Aruna Sharma, Advocate for OPs.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                    The present complaint has been u/s 12 of the Consumer Protection Act. 1986 against the respondents (hereinafter respondents will be referred as OPs).  .

2.                     Brief facts as alleged in the complaint are that complainant had obtained a Mediclaim Insurance Policy (With Family Floater) for a sum assured of Rs. 3,00,000/- bearing No.261701/48/2011/3410 valid from 12.03.2011 to 11.03.2012 from the OP No.1 Insurance Company.. During the span of mediclaim policy in question, complainant suffered heart problem, upon which he approached Dr. Avinash Jain, CMO of the Hospital of Ballarpur Industry, inside Paper Mill Colony, Yamuna Nagar, who after examination and giving first aid, referred the complainant to Fortis Hospital at Mohali. Accordingly, the complainant admitted in the Fortis Hospital on 21.10.2011 where Dr. G.S Kalra, M.D, D.M (Cardiology) treated the complainant and the complainant underwent Coronary Angiography on 22.10.2011, which revealed 100% blockage in the coronary artery and the disease was treated by Coronary Angioplasty of two blood vessels and two stunts were installed in the Coronary artery to remove the blockage and remained admitted in Fortis Hospital, Mohali upto 25.10.2011  and more than a sum of Rs.5,00,000/- were charged by the Fortis Hospital. It has been further mentioned by the complainant that he was also having another Mediclaim Policy from ICICI Lombard General Insurance Co. Ltd. for a sum assured of  Rs.1,50,000/- and the reimbursement of Rs.1,50,000/- was given by the ICICI Lombard General Insurance Company Limited and the remaining amount was paid by the complainant from his own pocket. After discharge from the Hospital, the complainant sent all the relevant papers i.e. Bills of Fortis Hospital dated 25.10.2011 amounting Rs.4,46,381/- and bill of medicines of Rs.16,000/- dated 29.10.2011 along with duly filled MediClaim Form through courier to the OP No.1 as well as OP No.2. The OPs Insurance Company confirm the same vide its letter dated 05.11.2011 but the claim of the complainant was wrongly and illegally repudiated on the ground that complainant was suffering from hypertension since 5 years i.e. before the commencement of the present policy and they also ascertain that the patient had undergone the treatment of HTN, OA B/L Knees (Osteo Arthritis) and as per the terms and conditions of the policy, this disease was not covered. After receiving the repudiation letter, the complainant written a letter to the OP No.1 and OP No.2 explaining his case that in the Fortis Hospital at Mohali, the complainant has neither got the treatment of HTN, OA B/L knees (Osteo-Arthritis) as stated in the repudiation letter dated 05.11.2011, nor the disease for which, he was treated upon due to hypertension rather the complainant was treated upon  by the doctors to remove his blockage by installing the stunt in the coronary artery and the said disease for which, he took the treatment is not excluded as per the policy, documents and prospectus.  The complainant suffered the chest pain only before 15 days from the date of, which was admitted in the hospital i.e. 21.10.2011. It has been further mentioned that after receiving the letter from the complainant, OP Insurance Company took another stand and vide  their letter dated 27.12.2011, repudiated the claim of the complainant by saying that the disease which was got treated by the complainant was a pre-existing disease and as per terms and conditions, the same was not covered. Lastly prayed for directing the OPs to pay balance sum of Rs.3,00,000 to the complainant against the policy in question along with interest and also to pay litigation expenses.

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement taking some preliminary objection such as:­-  complaint is not maintainable; before signing the policy, the OP Insurance Company had clarified all the terms and conditions of the policy to the complainant and after going through the same, the complainant filled the proposal Form and in the proposal Form, it is clearly mentioned as under:-“ I further declare that I have read the prospectus and have understood the same. I accept the policy, subject to terms, exceptions and conditions prescribed therein and further disclose that in the event of finding anything contrary to what has been declared by me, I shall be also responsible for all consequences thereof and the Insurance Company shall incur no liability under this insurance”.  Further, it has been mentioned that In the exclusion clause, it is clearly mentioned that any surgery during the period of two (2) years from the commencement of the policy, is not payable and the complainant signed the prospectus at various pages; the complainant, before purchasing the policy was fully aware that he has to undergo surgery under the policy of ICICI Lombard, General Insurance Company Limited which was already in currency and the same was covering risk upto Rs.1,50,000/- only, the complainant by concealing and misrepresentation the facts, purchased another policy on 12. 03. 2011 from the . OP No.1 Insurance Company covering the risk of Rs.3,00,000/-, as the complainant was aware of the fact that the expenditure on the surgery will be to the tune of Rs.4,50,000/- and on merit it has been admitted that complainant purchased a Medi claim Insurance Policy (With Family Floater) bearing No.261701/48/2011/3410 valid from 12.03.2011 to 11.03.2012 for a sum assured of Rs.3,00,000/- from the OP No.1 Insurance Company. It has also been admitted that the complainant had already availed the claim from ICICI Lombard General Insurance Company Limited to the tune of Rs.1, 50,000/-. Lastly, prayed for dismissal of the complaint on the ground that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide its letter dated 05.11.2011 (Annexure C-7)

4.                     In support of his case, complainant tendered into evidence his affidavit as Annexure CW/A and Photocopies of Documents such as:- Insurance Cover note as Annexure C-1,  Insurance Policy as Annexure C-2,  Insurance card as Annexure C-3, terms and conditions of the Insurance Policy as Annexure C-4, blank proposal Form as Annexure C-5, authorization letter of ICICI Lombard Insurance Company as Annexure C-6, Repudiation letter dated 27.12.2011 as Annexure C-7,  protest letter dated 17.11.2011 as Annexure C-8 and C-9, letter dated 27.12.2011 issued by TPA as Annexure C-10, claim Form as Annexure C-11,  bills of Fortis Hospital as Annexure C-12, certificate issued by the doctor of Fortis Hospital as Annexure C-13 and closed his evidence.

5.                     On the other hand, learned counsel for the OPs Insurance Company tendered into evidence affidavit of Shri H .S. Sandhu as Annexure RW/A, affidavit of Shri Ashish Bhatnagar, Branch Manager, Oriental Insurance Company  as Annexure RW/B, attested copy of Insurance policy as Annexure R-1, Photocopies of documents such as :-  proposal Form as Annexure R-2,  terms and condition of prospectus as Annexure R-3, Discharge summary of Fortis Hospital as Annexure R-4, protest letter issued by the complainant as Annexure R-5, reply dated 27.12.2011 as Annexure R-6,Insurance Card as Annexure R-7, Ration Card as Annexure R-8, and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. Counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that the complainant had purchased a Mediclaim Insurance Policy (With Family Floater) for a sum assured of Rs.3,00,000/- bearing No. 261701/48/2011/3410 valid from 12.03.2011 to 11.03.2012 from the OP No.1 Insurance Company which is duly evident from the copy of insurance policy/cover note Annexure C-1, C-2 / R-1. It is also not disputed that complainant remained under treatment and admitted in the Fortis Hospital on 21.10.2011 where Dr. G.S Kalra, MD, DM (Cardiology) treated the complainant and the complainant underwent Coronary Angiography on 22.10.2011, which revealed 100% blockage in the coronary artery and the disease was treated by Coronary Angioplasty of two(2)blood vessels and two(2) stunts were installed in the Coronary artery to remove the blockage and remained admitted in Fortis Hospital, Mohali up to 25.10.2011  which is duly evident from the Discharge summery Annexure R-4 and bill of Fortis Hospital  Annexure C-12. It is also not disputed that complainant submitted the medical bills of the Fortis Hospital amounting to Rs Rs.4,46,381/- -(Annexure C-9) with the OPs Insurance Company for the reimbursement of the same under the policy. It is also not disputed that reimbursement of Rs.1,50,000/- was given by the ICICI Lombard General Insurance Company Limited and the remaining amount was paid by the complainant from his own pocket.

8.                     Learned counsel for the complainant argued that in the Fortis Hospital at Mohali, the complainant has neither got the treatment of HTN, OA B/L knees (Osteo-Arthritis) as stated in the repudiation letter dated 05.11.2011, nor the disease for which, he was treated upon due to hypertension rather the complainant was treated upon  by the doctors to remove his blockage by installing the stunt in the coronary artery and he was not treated for Hypertension or any other disease and the said disease for which, he took the treatment is not excluded as per the policy documents and prospectus. Learned counsel for the complainant argued that the complainant suffered the chest pain only before 15 days from the date of, which was admitted in the hospital i.e. 21.10.2011. Learned counsel for the complainant further argued that the OPs Insurance Company has wrongly and illegally repudiated  the mediclaim of the complainant vide repudiation letter dated 27.12.2011  (Annexure C-7)  on the false ground which constitute the deficiency in service and unfair trade practice. Lastly, prayed for acceptance of complaint and referred the case law titled as New India Assurance Company Ltd. Versus Priya Blue Industries Pvt. Ltd. 2011(2) Apex Court Judgments page 60 (S.C.) wherein it has been held that :-“C.P. Act, 1986, S..2- Insurance Claim- Plea of suppression of material facts and repudiation of claim raised for the first time at the time of filing written statement which is only an afterthought- No evidence on record to support such plea- Evidence on record well considered-Award passed by National Commission, upheld.”

9.                     On the other hand, learned counsel for the OPs argued at length that the claim of the complainant has been rightly repudiated by the Ops Insurance Company vide repudiation letter 27.12.2011 (Annexure C-7) because as per exclusion clause, any surgery during the period of two (2) years from the commencement of the policy, was not payable and the complainant signed the prospectus before purchasing the policy, and was having knowledge that he has to undergo surgery under the policy of ICICI Lombard, General Insurance Company Limited which was already in currency and the same was covering risk upto Rs.1,50,000/- only, and the complainant by concealing and misrepresentation the facts, purchased another policy from the OP No.1 Insurance Company covering the risk of Rs.3,00,000/-, as the complainant was aware of the fact that the expenditure on the surgery will be to the tune of Rs.4,50,000/.-  Learned counsel for the Ops further argued that as per exclusion clause No.4.1 of the policy, the insurance company is not liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all pre-existing disease/conditions existing. Learned counsel for the OPs further draws our attention towards the treatment record and discharge summary of Hospital; Annexure R-4 and argued that from the above noted history it is clear that, the complainant was having pre-existing disease  before taking the insurance policy in question, hence, the claim of the complainant has been rightly repudiated by the Ops Insurance Company. Lastly, prayed for dismissal of the complaint learned counsel for the Ops referred the case law titled as Angoori Devi Versus LIC of India & others, 2009(1) CLT Page 488, Oriental Insurance Company Ltd. Versus Balwanti Devi Dahiya, 2009(3) CLT page 221, Best Food International Versus National Insurance Co. ltd. and Another, IV(2009) CPJ page 77 (NC) and Sr. Divisional Manager,Life Insurance Corporation of India and another Versus Mohini Devi, 2012(1) CLT page 387 H.P. State Commission.

10.                   After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs as from the perusal of treatment record and discharge summary dated 25.10.2011 (Annexure R-4) issued by the Fortis Hospital, Mohali, it is duly evident that the complainant was having history of Post PTCA+ Stent to LAD/LCx (22/10/2011), Post Coronary Artery Bypass Grafting (CABG) LAD, Feb 2009 and further was known case of HTN, OA B/L Knees (Osteo Arthritis). Further, it is also not disputed that the complainant obtained the insurance policy in question on 12.03.2011 and got treatment for Coronary Artery Disease from 21.10.2011 to 25.10.2011 from the Fortis Hospital, Mohali i.e. within 7 month from the purchase of insurance policy in question, meaning thereby that the complainant obtained the insurance policy in question just to cover the expenses to remove his blockage by installing the stunt in the coronary artery by suppressing the material facts from the insurance company. Further, the complainant has not rebutted the version of the OPs Insurance Company that he has not got the treatment for Coronary Artery Disease in the year 2009. The case law referred by the complainant is not disputed but not helpful in the present case. As in the present case, from the record/discharge summary (Annexure R-4) issued by the Fortis Hospital, Mohali, it is clear that complainant has suppressed the true and material facts from the OPs Insurance Company at the time of taking Insurance policy in question.  The case law titled as Oriental Insurance Company limited Versus Balwanti Devi Dahiya,(supra) is fully applicable to the facts of the present case wherein it has been held that

‘’Medi-Claim Policy- Insurance Claim- Repudiation- Suppression of material fact- Admission of respondent in the hospital nowhere mentioned her having sustained any injury and the admission resultant therefrom- Though it is categorically mentioned that the complainant is an old patient suffering from painful knees- The records leads to the conclusion that the insurance policy was taken by the complainant with a view to cover the medical expenses for the replacement of the knees- No deficiency can be alleged if the complainant has got the policy by omitting deliberately to mention such conditions in the proposal form which were very vital for her to disclose- Order of the District Forum allowing the complaint liable to be set aside.

            The same view has been held by the Hon’ble National Commission in case titled as Life Insurance Corporation of India Versus Meenu Kalita 2000(III) CPJ page 10 National Commission, even in another case titled as Mithoo Lal Versus Life Insurance Corporation of India AIR 1962 Supreme Court 814 Hon’ble Apex Court has held as under:

             “ Contract of life Insurance entered into as a result of fraudulent suppression of material facts by the policy holder- policy is vitiated- person holding assignment of policy cannot claim benefits of contract.

            Even in further case law titled as Modern Insulator Ltd. Versus Oriental Insurance Company Ltd. 2000 (2) Supreme Court Cases page No. 734 it has been held that “It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties knows……….”.

            Further in the latest law titled as Life Insurance Corporation of India Versus Bimla Devi 2016(1) CPJ page 57 wherein it has been held by the Hon’ble National Commission that “ in a contract of insurance, any fact which would influence the mind of the prudent insurer in deciding whether to accept or not to accept the risk is a material facts. If the proposer has knowledge of such fact, he is obliged to disclose its particularly while answering questions in the proposal form. Needless to emphasis that in any accurate answer with entitled the insurer to repudiate his liability because there is clear presumption that any information sought from the proposal form is material for the purpose of entering into a contract of insurance”.

            The same view has been held by the Hon’ble State Commission, Panchkula, in case titled as Smt. Bharpal Versus Birla Sun Life Insurance Company Ltd. in Frist Appeal No. 789/2016 decided on 24.01.2017.

 10.                  In the present case, from the perusal of treatment record and discharge summary dated 25.10.2011 (Annexure R-4) issued by the Fortis Hospital, Mohali, it is duly evident that Sh. Inder Mohan complainant was suffering from pre existing disease. The case law referred above titled as Life Insurance Corporation of India Versus Meenu Kalita, Mithoo Lal Versus Life Insurance Corporation of India, Modern Insulator Ltd. Versus Oriental Insurance Company Ltd,  Smt. Bharpal Versus Birla Sun Life Insurance Company Ltd (supra) are fully applicable to the facts of the present case.    

11.                   Resultantly, in the circumstances noted above and after going through the case law referred by the counsel for the Ops, we are of the considered view that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide repudiation letter dated 05.11.2011 (Annexure C-7) and subsequently reviewed by letter dated 27.12.2011 (Annexure R-6). Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced: 15.06.2017.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT

                                                                                    DCDRF, YAMUNANAGAR

 

 

                      (VEENA RANI SHEOKAND)             (S.C.SHARMA    )

                         MEMBER                                             MEMBER