Haryana

Karnal

CC/216/2016

Varinder Dang - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Vinod Vaid

01 Mar 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.216 of 2016

                                                         Date of instt. 26.07.2016

                                                         Date of decision:01.03.2018

 

1. Varinder Dang, aged 48 years, son of Shri Ram Parkash.  

2. Smt. Uma Dang, aged 44 years, wife of Shri Varinder Dang, both residents of House no.101, Jarnailly Colony Karnal.

                                                                                                                                                                        …….Complainant.

                                        Versus

 

1. The Oriental Insurance Company Limited through its Branch Manager, York Hotel, G.T. Road, Karnal.

2. Medi Asstt. India TPA Private Limited through its Branch Manager Sector-2, near Sector 15, Metro Station, Noida (UP) 201 301.

 

                                                                     …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.            

 

Before   Shri Jagmal Singh……President.

              Shri Anil Sharma……Member

 

 Present  Shri Vinod Vaid Advocate for complainant.

               Shri Amit Gupta Advocate for OP no.1.

               OP no.2 exparte.

 

ORDER:                    

 

                         This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant no.1 had obtained the Health Insurance Family Policy of PNB-Oriental Royal Medi Claim Policy from OP no.1, vide policy no.261301/48/2015/2702 dated 06.02.2015 under the complete family insurance scheme for the amount of Rs.5 lakh covering both the complainants and their son Karan Dang. On 27.3.2015 the complainant no.2 was having some problem in her stomach. She went to a local physician for check, who advice to conduct the ultrasound and CT Scan. On the advice of physician complainant no.2 conducted the ultrasound and CT scan. After obtaining the reports complainant no.2 got checked herself in the OPD of BLK Hospital, New Delhi by Dr. Ashish Goyal on 3.4.2015. After seeing the report of CT Scan and Ultrasound Dr. Goyal made some suspicious about the cancer in the liver and gall bladder. The concerned physical of BLK Hospital recommended Pet test and the same was conducted on 6.4.2015. The report of the test was received on 10.4.2015 and for the first time it was confirmed by the doctor that there are cell of cancer in the liver and gall bladder. After getting the said information the complainant no.2 was advised for Chemotherapy on 18.4.2015. This Chemotherapy was done upto 25.6.2016 in six sitting and Rs.90,000/- was paid by the complainant no.2 for this chemotherapy besides these six visits she also spent Rs.20,000/-. On 25.6.2015 the complainant no.2 was admitted in BLK Hospital, New Delhi. On 27.6.2015 she was operated upon for the treatment of cancer and on 6.7.2015 she was discharged from the hospital. The BLK Hospital charged Rs.3,16,000/- for operation. The complainant told to the BLK hospital that they have got the mediclaim policy for that reasons all the bills and other expenses charges were sent to the OP no.2 by the hospital authorities. A representative of OP no.2 visited the BLK hospital and taken all the bills and other documents and also obtained one cancelled cheque from the complainant. After discharge from the hospital complainant no.2 was advised for repeating of treatment. Chemotherapy was again given for this Rs.one lakh was paid to the hospital. In this way on the entire treatment the complainant no.1 has spent Rs.7,15,000/-. The complainant no.1 visited the office of OP no.2 several times for reimbursement of the amount but the officials of the OPs postponed the matter on one pretext or the other. In the month of April, 2016 the OP no.2 informed the complainant through e-mail message that their claim has been rejected by the company and no amount will be paid to the complainants. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written statement raising preliminary objections with regard to maintainability; jurisdiction; complainants are estopped by their own act and conduct from filing the present complaint; locus standi and concealments of true and material facts. On merits, it is submitted that a perusal of the medical record submitted by the complainant herself in order to process her claim and enquiries made by the OP no.2, complainant no.2 was diagnosed with CA GB about three months back prior to her treatment at BLK Hospital, New Delhi. The policy of insurance was purchased by the complainant on 6.2.2015, which is in very close proximity to the pre-existing disease. Since the ailment, for the treatment of which, complainant no.2 remained admitted, was pre-existing/present prior to the inception of the policy, the respondent company was within its right to repudiate the claim lodged by the complainants. As per clause 4.1 of the policy of insurance, the OP company is not liable to make any payment under the policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of a pre-existing health condition or disease or ailment, which are pre-existing in case of any of the insured person, when the insurance cover incepts for the first time upto three years of the policy being in force continuously. The disease, for which the complainant underwent treatment and had put up a claim, was infact pre existing at the time of inception of the policy. The complainant did not disclose of any medical complication and/or disease, although she has the symptoms of the ailment, even at the time of issuance of the policy. Hence the claim of the complainant inadmissible and as such the same was repudiated. Hence there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

3.             OP no.2 did not appear and proceeded against exparte by the order of this Forum dated 21.10.2016.

4.             Complainant tendered into evidence affidavit of Varinder Dang Ex.C1/A, affidavit of Uma Dang Ex.C2/A and documents Ex.C3 to Ex.C18 and closed the evidence on 4.5.2017.

5.             On the other hand, OPs tendered into evidence affidavit of R.S.Bahlan Ex.R1 and documents Ex.R2 to Ex.R10 and closed the evidence on 7.9.2017.

6.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             From the pleadings and evidence of the parties, it is clear that the complainant no.1 obtained the Health Insurance Family Policy PNB-Oriental Royal Medi Claim policy from OP no.1, vide policy no.261301/48/2015/2702 dated 6.2.2015 under complete family insurance scheme for the amount of Rs.5 lakh covering both complainants and their son Karan Dang. It is not disputed that complainant no.2 got conducted ultrasound on 31.3.2015 and CT Scan on 1.4.2015 and after seeing these reports, the physician Dr.Ashish Goyal of BLK Hospital, New Delhi recommended Pet test at BLK and same was conducted on 6.4.2015. The report of Pet test was received on 10.4.2015. It is also not disputed that Chemotherapy was done upto 25.6.2015 in six sitting and Rs.90,000/- were spent on the same. It is also not disputed that on 25.6.2015, the complainant no.2 admitted in BLK Hospital and on 27.6.2015 she was operated for Cancer and 6.7.2015, she was discharged from the hospital and the hospital charged Rs.3,16,000/-. It is also not disputed that OPs were informed and submitted the requisite documents, bill etc. for processing the claim lodged with the OP company. It is not disputed that after discharge, the complainant no.2 was again given Chemotherapy and spent Rs.one lakh and the complainant no.1 spent total on entire treatment Rs.7,15,000/-. It is also not disputed that the claim of the complainant was repudiated by the OPs vide letter dated 5.3.2016 Ex.R-8 on the ground the illness of the complainant no.2 was pre-existing and as per clause 4.1 of the policy the claim was repudiated.

8.             From the above facts and circumstances of the case, the question arises that whether the illness of the complainant no.2 was a pre-existing disease from the date of obtaining the policy and the same was in the knowledge of the complainant.

9.             According to the complainants, the complainant no.2 has felt problem on 27.3.2015 and after check up and tests, it is first time confirmed on 10.4.2015 that there were cell of cancer and thereafter the treatment for cancer was taken.

10.           Whereas according to the OPs, it was clear from the medical record submitted by the complainant herself that complainant no.2 was diagnosed with CA GB about three months prior to her treatment at BLK Hospital, New Delhi. As the claim was repudiated by the OPs on the ground of pre-existing ailment, so the onus to prove the same was on the OPs.

11.           To prove their case, the OPs produced in their evidence affidavit Ex.R-1 of Shri R.S. Bahlan, Sr. Manager of OP no.1 and documents Ex.R-2 to Ex.R-10. The OP no.1 referred the document Ex.R-3 which contain the discharge summary and stated that according to the history given by the complainants the complainant no.2 was diagnosed of CA GB 3 months back to her treatment. On perusal of discharge summary it is found as “HISTROY OF PRESENT ILLNESS: Mrs. Uma Dang, 41 years female was diagnosed with diagnosis of CA, GB 3 months back, patient had 3 cycle of NACT and was planned for radical cholecystectomy. PAST HISTORY: History of type 2 diabetes, patient on OHA.” From the discharge summary it is clear that the same prepared on 6.7.2015 and the patient Mrs. Uma Dang was admitted in the hospital on 25.6.2015. The history might have been given by the patient at the time of admission in the hospital i.e. 25.6.2015. From the history mentioned above, it is clear that it was told by the patient or her relative that the complainant no.2 was diagnosed with diagnosis of CA GB, 3 months back which means the complainant no.2 was diagnosed, regarding the illness on or about 25.3.2015. Moreover, it is not mentioned that the illness was diagnosed 3 months prior to her treatment. There is no word mentioned as treatment the OPs have only presumed that the illness of complainant no.2 was diagnosed 3 months back prior to her treatment at BLK Hospital. This fact is also clear from para no.3 of the pleadings of OPs wherein it is mentioned that the policy was purchased by the complainant on 6.2.2015, which is in to very close proximity, to the pre-existing disease. The OPs have not produced any such cogent evidence vide which it can be proved that the ailment of the complainant no.2 was pre-existing from the date of purchase of policy i.e 6.2.2015 and the same was in the knowledge of the complainants. In this regard we can rely upon the authorities cited in 2017(2) CLT-253 (NC) titled as Jamnaben Shambhubhai Manger Versus LIC,  The head notes runs as- suppression of material fact-death of insured due to kidney problem-as per medical record, the insured had been suffering from abdominal pain since one year- Whether the non-disclosure of ‘abdominal pain’ amounts to suppression of material information on the part of the insured, while filling up the proposal form for obtaining the policies?-Held-There is no evidence on record to show whether the insured had taken medical treatment for the same, or was admitted in the any hospital for any kind of treatment-Even if, he mention the same in the proposal form, unless some specific disease is indicated and the treatment for the same is taken-No suppression of material information-Insured was subjected to examination by the panel doctor of the insurance company and nothing adverse was noticed against him.  The other authority is cited in 2017(2) CLT-437 (PB) titled as Kanwaljit Singh Versus NIC & others, The head note of the same is as-Mediclaim insurance-pre-existing disease-whether the fits and seizures is a permanent disease and does it relate to a pre-existing disease?-Held-that normally the disease as suffered by the complainant’s son cannot be taken as pre-existing disease as some ailments can spend decades lurking in the body of an individual until they suddenly spring up in life-Many persons have diseases that one is having without his knowledge-The diseases remain dormant in the body for years-Some illnesses have incubation period of anywhere from years to decades-some disease wait in the body for decades before striking-Insurance company liable. In the present case the OPs have not produced any evidence on the file that the complainant no.2 had taken the treatment for cancer prior to 6.2.2015 the date of purchasing the policy. Therefore, the above authorities are fully applicable to the facts of the present case. In view of the above authorities as well as the facts and circumstances of the case, we are of the considered opinion that the OPs have failed to prove that the ailment of the complainant no.2 was a pre-existing ailment and same was in the knowledge of the complainants. Hence the OPs have wrongly repudiated the claim of the complainants, therefore, the OPs are deficient in providing services to the complainants.

12.           As stated above, the policy was Rs.5 lakhs only whereas according to the complainants they have spent Rs.7,15,000/-. According to the policy the liability of the OPs is only to the extent of Rs.5 lakhs.

13.           Thus, as a sequel to above discussion, we allow the present complaint and direct the OPs to pay Rs.,5,00,000/-(five lakhs) the insured amount to the complainant. We further direct the OPs to pay Rs.5500/- on account of mental agony harassment and litigation charges. This order shall be complied with within 30 days from the receipt of copy of this order failing which the complainant shall be entitled interest @ 8% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 01.03.2018

                                                               

                                                                 President,

                                                        District Consumer Disputes

                                                        Redressal Forum, Karnal.

 

 

                        (Anil Sharma)                   

                          Member