Chandigarh

DF-I

CC/1099/2019

Anjana Kapila - Complainant(s)

Versus

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

Devinder Kumar

29 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                                     

Consumer Complaint No.	:	CC/1099/2019
Date of Institution	:	05/12/2019
Date of Decision	:	29/11/2022

 

Anjana Kapila wife of Sh. Ratan Kapila, aged 59 years, r/o H.No.57-A, Sector 44-A, Chandigarh

… Complainant

V E R S U S

1. The Oriental Insurance Company Limited, SCO No.48-49, Sector 17-A, Chandigarh through its Divisional Manager.
2. Raksha Health Insurance TPA Private Limited, SCO No.39, 1^st Floor, Above Barbeque National, Sector 26, Madhya Marg, through its Managing Director.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Devinder Kumar, Counsel for complainant
	:	Sh. Punit Jain, Counsel for OP-1
	:	OP-2 ex-parte

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Mrs.Anjana Kapila, complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the complainant opened a savings bank account with the Oriental Bank of Commerce, Sector 44C, Chandigarh in the year 2010. Thereafter the bank officials allured the complainant to purchase a mediclaim policy of Oriental Insurance Co. Ltd. (OP-1) by disclosing the benefits of the said policy and on their assurances, he agreed to purchase a mediclaim policy and paid a sum of ₹3,384/- through bank to OP-1 and purchased the Oriental Bank mediclaim policy valid from 9.2.2016 to 8.2.2017. The said policy covered the complainant and her husband, Ratan Kapila and daughters Omini Kapila and Dyuti Kapila.  Later on the said policy was renewed from time to time by paying the premium from 18.5.2017 to 17.5.2018 and from 18.5.2018 to 17.5.2019. On 16.1.2019 the husband of the complainant had chest pain and immediately he went to PGI, Chandigarh and on seeing his condition, he was admitted and treatment was started.  Angioplasty was also conducted by the doctor and thereafter he was discharged on 18.1.2019.  On his treatment, complainant had spent a sum of ₹1,23,357/-.   Due information qua the treatment of her husband was also given to the OP and on the instructions of the OP, complainant submitted the claim form alongwith required documents with OP-2.  Thereafter the complainant approached the OPs with a request to release the claimed amount, but, with no result.  On this, notice dated 19.8.2019 (Annexure C-7) was issued to the OP. However, instead of paying the genuine claim, OP sent repudiation letter dated 15.10.2019 (Annexure C-8) to the complainant informing her that the claim has been rejected.  On receipt of the repudiation letter dated 15.10.2019, complainant again approached the OPs and clarified all the facts, but, with no response from the OPs. Alleged, OPs cannot take advantage of the exclusion clause as referred in the repudiation letter which was never a part of the terms of the policy nor was communicated to the complainant.  Hence, the present consumer complaint.
2. OP-1 resisted the claim and filed its written reply, inter alia, taking preliminary objections of maintainability and non-joiner of necessary parties.  On merits, admitted that the mediclaim policy was purchased by the complainant and was valid till 17.5.2019 for the assured sum of ₹2 lacs covering the complainant, her husband and two daughters, but, denied that the terms and conditions of the policy were not explained to the complainant at the time of proposing the policy.  It is further admitted that the complainant lodged a claim of ₹1,23,357/- with the answering OP, but, denied that the same was wrongly declined.  It is alleged that in fact the insured patient was having history of ailments and previous heart attack ailment and on earlier occasion also he was admitted at PGI, Chandigarh which fact is also clear from the previous history of the patient (Annexure OP-1).  It is further alleged that neither the complainant/insured disclosed the material facts nor the pre-existing disease is covered within first 36 months and same is only covered after three years and the same is subject to disclosure of material facts as well as clause 4.1 and 4.2 of the insurance policy. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP-2 was served and when it did not turn up before this Commission, despite service, it was proceeded against ex-parte on 7.2.2020.
4. In replication, complainant re-asserted her claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of affidavits and their respective supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments. For the reasons to be recorded hereinafter, following points are formulated for discussion and proper adjudication :-

1. Whether there is deficiency in service or unfair trade practice on the part of OPs?
2. Whether the complainant is entitled for claim as prayed for?
3. Relief.

Point No.1 & 2

4. Both these points are interconnected, hence are taken together to avoid repetition of facts and evidence.
5. Admittedly, the complainant had purchased the medi-claim insurance policy for the insured sum of ₹2 lacs from OP-1 in the year 2016 covering herself, her husband and two daughters, as is also evident from copy of insurance policy (Annexure C-1).  It is further an admitted case of the parties that said policy was renewed annually by the complainant by paying the premium and the last policy was valid w.e.f. 18.5.2018 to 17.5.2019, as is also evident from copies of insurance policy (Annexure C-2 & C-3). It is further an admitted case of the parties that the husband of the complainant, Sh. Ratan Kapila had undergone heart treatment at PGI, Chandigarh where his angioplasty was also conducted by the doctors and he was admitted on 16.1.2019 and discharged on 18.1.2019.  It is further an admitted case of the parties that the complainant had lodged a medi-claim of ₹1,23,357/- which was spent for the treatment of her husband with OP-1 and the said claim was repudiated by OP-1 on the ground that the complainant had not disclosed about the pre-existing disease of her husband.  The case of the complainant is that as OP-1 has wrongly repudiated the claim of the complainant on the basis of clause 4.1 and 4.2 of the schedule of policy which clearly proves deficiency in service on the part of OP-1, the complainant is entitled for the reliefs as prayed for.  On the other hand, the defence of OP-1 is that since the insured had not disclosed about the pre-existing disease of the patient within the time as mentioned in the insurance policy, the claim of the complainant was rightly repudiated by the answering OP as per clause 4.1. and 4.2 of the insurance policy and the consumer complaint of the complainant be dismissed with costs. 
6. In the backdrop of the foregoing admitted and disputed facts on record, it is to be determined if there is any deficiency in service or unfair trade practice on the part of OPs and the complainant is entitled for any relief, as is the case of the complainant, or if the claim of the complainant was rightly repudiated by the OPs, as per the terms and conditions of the insurance policy.
7. Close scrutiny of the entire evidence on record of the case file, coupled with the rival contentions of the learned counsel for the contesting parties, are discussed as under:-

1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had purchased the medi-claim insurance policy for the insured sum of ₹2.00 lakhs from OP-1 in the year 2016, covering herself, her husband and two daughters, and the said policy was renewed annually by the complainant by paying the premium since then, and the last policy was valid w.e.f. 18.5.2018 to 17.5.2019, and also that the husband of the complainant Sh. Ratan Kapila had undergone heart treatment at PGI, Chandigarh where his angioplasty was also conducted by the doctors by admitting him on 16.1.2019 and he was discharged on 18.1.2019, and on account of his treatment, complainant had spent a sum of ₹1,23,357/- regarding which claim was also lodged by the complainant with the OP Insurance Company and the same was repudiated by the OP vide repudiation letter (Annexure C-8/OP-3) on the ground that the complainant had not disclosed about the pre-existing disease of her husband at the time of purchase of the policy, the case is reduced to a narrow compass as it is to be determined if the OPs are justified in repudiating the claim of the complainant on the ground that the complainant’s husband had suffered from pre-existing disease when the complainant got herself, her husband and two daughters insured against the said policy, as is the defence of the OPs or the complainant is entitled for the claim, as prayed for, as is the case of the complainant.
2. The learned counsel for the complainant contended with vehemence that as it is clear from the record that the OPs had issued only three pages i.e. pages 1 to 3 of the medi-claim insurance policy schedule to the complainant of the relevant time w.e.f 18.5.2018 to 17.5.2019 by renewing the previous policy, as is also evident from Annexure C-3, which does not include the exclusion clauses on the basis of which the OPs have repudiated the claim of the complainant, especially when Annexure OP-2 i.e. OBC – Oriental Mediclaim Policy – 2017 prospectus was never given to the complainant by the OPs, the repudiation of the claim by the OPs is not justifiable and the complainant is entitled for the claim, as prayed for.  On the other hand, learned counsel for OP-1 contended with vehemence that as it is clear from clauses 3.25 and 4.1 of Annexure OP-2 that the claim of the complainant is not covered under the said policy since the husband of the complainant was already getting treatment for pre-existing disease, i.e. heart related disease, OPs have rightly repudiated the claim of the complainant and the consumer complaint of the complainant, being false and frivolous, be dismissed with costs.  There is no force in the contention of the learned counsel for the OP as it is clear from Annexure C-3 that the OBC – Oriental Mediclaim Policy – 2017 was only provided to the complainant by the OPs when the same was containing only three pages and perusal of these three pages nowhere reveals that the complainant shall be bound by the exclusion clauses which have been heavily relied upon by the OPs through Annexure OP-2 i.e. prospectus. Even Annexure OP-1 the hospital record reveals that the husband of the complainant was admitted on 14.5.2011 and was diagnosed with hypertension, asthma, chest pain and it is only on 18.1.2019 when Percutaneous Coronary Intervention (PCI) i.e. a treatment to open a blocked artery was given to the husband of the complainant regarding which the complainant is seeking claim.  So far as the diseases like diabetes and high blood pressure are concerned, it has already been held in various judgments passed by the Hon’ble National Commission and Hon’ble State Commissions that same cannot be considered to be pre-existing disease.
3. It has recently been held by the Hon’ble State Commission Delhi, in the case titled S.S. Jaspal Vs. National Insurance Co. Ltd. & Ors., IV (2022) CPJ 26 (Del.) as under :-

“Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d), 15 - Insurance (Mediclaim) -Angioplasty and Stenting - Suppression of pre-existing disease alleged - Repudiation of claim Deficiency in service - District Forum dismissed Complaint - Hence Appeal - Complainant experienced pain in chest and remained admitted in Hospital from 24.6.2004 to 30.6.2004, where he had undergone Angioplasty and Stenting, by incurring Rs.3,20,126 on treatment - Previous medical history is based upon information provided by family of patient - Respondents failed to show any evidence regarding pre-existing disease suffered by insured at time of getting policy - Common lifestyle disease like diabetes and hypertension, cannot be treated as pre existing diseases and cannot be a ground of repudiation of claim by Insurance companies - Respondents failed to show any evidence that any medical tests or examination was done, before issuing said policy in question - Respondents are directed to pay a sum of Rs.3,20,126 (Cost of Medical Expenses) to Appellant along with interest @ 6% p.a.”

4. The Hon’ble National Commission in the case titled Sunil Kumar Sharma v. Tata AIG Life Insurance Company and Ors., Revision Petition No.3557 of 2013 decided on 1.3.2021, while dealing with the issue of pre-existing disease, has held as under:-

“10.   We further deem it appropriate to refer to Revision Petition No.3557 of 2013 titled as Sunil Kumar Sharma vs. TATA AIG Life Insurance Company and Ors., decided on 01.03.2021, wherein the Hon’ble National Commission has dealt the issue of pre existing disease and held as follows:

“14.   Moreover the claim had been repudiated only on the ground that the insured was suffering from diabetes for a long time. So far as life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No.656 of 2007, decided on 17.09.2007 held as under:

"Insurance – Mediclaim -Reimbursement-Present Petition filed for appropriate directions to respondent to reimburse
expenses incurred by him for his medical treatment, in accordance with policy of insurance - Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension - Petitioner was advised to undergo ECG, which he did - Insurer accepted proposal and issued cover note. It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors. That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension. It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless. Policy would be reduced to a contract with no content, in event of happening of contingency. Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability. Main purpose rule would have to be pressed into service. Insurer renewed policy after petitioner underwent CABG procedure. Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable. As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency. Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."

15. In RP No.4461 of 2012, Neelam Chopra v. Life Insurance Corporation of India & Ors., decided on 08.10.2018, (NC), it
was held that:

"11. From the above, it is clear that the insurance claim cannot be denied on the ground of these life style diseases that are so common. However, it does not give any right to the person insured to suppress information in respect of such diseases. The person insured may suffer consequences in terms of the reduced claims.

14. Moreover, the non-disclosure of information in respect of this life style disease of diabetes, will not totally disentitle the complainant for indemnification of the claim in the light of the judgment of Hon'ble High Court of Delhi in Hari Om Agarwal v. Oriental Insurance Co. Ltd., (supra)."

16. Based on the above discussion, I am of the opinion that the Insurance Company had not been able to prove beyond doubt that the Complainant was suffering from diabetes before filing of the proposal form. It is also to be noted that the Insurance Company had given Insurance to a person of 66 years of age without any preliminary medical examination which could have definitely revealed whether the proposer was suffering from diabetes or not. It is commonly known that a person of 66 years of age has a high probability of suffering from common lifestyle diseases like diabetes and hypertension. If the company is ready to take the risk at this age of the proposer, without any preliminary medical examination, then the company should be ready to honour the claim also because the chances of death of such persons are more during the currency of the Policy.”

5. It is also to be noted that the policy in question was given by the OPs to the complainant and her aged husband without any preliminary medical examination which could have definitely revealed whether the proposer was suffering from any disease which is not covered under the policy. Moreover, it is commonly known that an aged person like the husband of the complainant has high probability of suffering from common lifestyle diseases like diabetes and hypertension.  If the OP insurance company was ready to take the risk at this age of the proposer, without any preliminary medical examination, then the OP should be ready to honour the claim in case such a person suffers from diseases covered under the policy.  Hence, the diseases like diabetes and hypertension cannot be treated as pre-existing diseases and the same cannot be a ground of repudiation of the claim by the insurance company, especially when even the summary treatment of the husband of the complainant shows that earlier he was treated for the disease of hypertension only.  In the present case, as the OPs have failed to show any evidence that any medical tests or examination of the husband of the complainant were got conducted before issuing the said policy, the claim of the complainant cannot be repudiated by the OPs on the ground of pre-existing disease which is otherwise not covered under the policy terms and conditions. 
6. The learned counsel for the OP has relied upon the judgment of Hon’ble Apex Court in the case of Oriental Insurance Company Limited Vs. Mahendra Construction, 2019 AIR (Supreme Court) 2182 in which it was held that suppression of facts goes to the very root of the contract of insurance claim and claim in such cases cannot be allowed. However, with due respect to the ratio laid down in the aforesaid judgment, same is not applicable in the facts of the present case as it has already been discussed that in fact the OPs have failed to show on record that the complainant has concealed any fact from the OPs, especially when it has come on record that the OPs have not ascertained the fact about pre-existing disease, if any, to the husband of the complainant before issuing of the policy since it has further come on record that the husband of the complainant had only taken treatment with medicines for hypertension, asthma, chest pain in the year 2011-12. 
7. So far as the defence of the OPs that the claim of the complainant was rightly repudiated for non disclosure of material facts i.e. pre-existing disease is concerned, for the sake of convenience it is better to reproduce firstly clause 4.1 as under :-

“4.1 All Pre-existing Diseases (whether treated/ untreated, declared or not declared in the Proposal Form), are excluded upto 36 months of the Policy being in force and shall be covered only after the Policy has been continuously in force for 36 months. 

For the purpose of applying this condition, the date of inception of the first OBC-Oriental Mediclaim Policy shall be considered, provided the Renewals have been continuous and without any break in the policy period.

This exclusion shall also apply to any complication(s) arising from Pre existing Diseases.  Such complications will be considered as part of the Pre existing health condition or Disease.”

As far as clause 4.2 is concerned, the same has explained the expenses of treatment of ailments/ diseases/surgeries if contracted/or manifested after inception of first policy are not payable during the waiting period.  In the case in hand, as it stands proved on record that the husband of the complainant was not suffering from any pre-existing disease in the year 2011-12, which resulted in causing heart ailment for which PCI treatment was taken by him in the year 2019, exclusion clause 4.1 will not apply.  In the present case, the said clause only speaks about the declared or undeclared pre-existing diseases and excludes the complainant from seeking claim upto 36 months from the date of inception of the OBC-Oriental Mediclaim Policy.  Since the case of the complainant is not hit by the exclusion clause 4.1, the waiting period as prescribed in clause 4.2 shall also not be applicable in the present consumer complaint.

8. In view of the foregoing discussion and the ratio of law as discussed in the aforesaid case, it is safe to hold that the OPs are not justified in repudiating the claim of the complainant on the ground that husband of the complainant had suffered from pre-existing disease while getting insured against the said policy.  Hence, the OPs are proved to have indulged in deficiency in service.

Relief

9. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is accordingly partly allowed and OPs are directed as under :-

1. to pay the claim of ₹1,23,357/- to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 15.10.2019 till realization of the same.
2. to pay an amount of ₹30,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹10,000/- to the complainant as costs of litigation.

10. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
11. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced			Sd/- [Pawanjit Singh]
29/11/2022			President
hg
			Sd/- [Suresh Kumar Sardana]
			Member