This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant and his wife have been jointly insured and beneficiary under medi-claim policy of Star Health And Allied Insurance Co. Ltd. since,2013 and then to till date the complainant and his wife are being continuously insured mediclaim policy from 2013, that was under ‘Star Health And Insurance Co. Ltd.’ and now the complainant switch over their mediclaim policy at opposite party insurance Company i.e. ‘Bajaj Allianz General Insurance Co.’ which is continuation of the said ‘Family Health  Optima Insurance Policy’ of 2013. Following are those Policy nos., Policy periods, Premium Amounts and Coverage and Bonus.

 That after purchasing of above mentioned policies, now on 30/06/2017 the petitioners switches over their mediclaim policy on opposite party insurance company’s Star Package Policy’ being no. OG-18-2401842100000277 with a validity from 30/06/2017 to 29/06/2018 and the petitioners paid premium of Rs.13,444/- and it is pertinent to mention here that as this is a continuation of said mediclaim policy of Star Health And Allied Insurance Co. Ltd. for that reason this ‘Star Package Policy’ of Bajaj Allianz General Insurance is the continuation of the said ‘Family Health Optima Insurance Plan’ of policy of Star Health And Allied Insurance Co. Ltd.’ and this is a 5^th year policy.  Apart from that complainants also purchase one extra care’ policy being no. OG-1824018411600000256, period of insurance 30/06/2017 to 29/06/2018 and total Rs.6, 307/- has been paid as premium.  And  that now the wife of the complainant for difficulties in walking had to undergone in a operation for right total knee replacement and for that reasons she got admitted in Apollo Hospital on 29/11/2017 and date of surgery is 30/11/2017 after that, she was discharged on 04/12/2017 from the said Hospital. For that reason, total medical expenses is Rs.2,50,140/- as per Bill dated 04/12/2017 of Apollo Hospital, Chennai.  During that treatment period the complainant applied for cash less facilities by opposite party insurance Company vide company’s Health Card being no.18-85555555 OA which is issued in respect of the above mentioned policy, but unfortunately, on 04/12/2017, O.P. Insurance Company denied the cashless facility with a baseless reason by stating that the petitioners’ wife had a right knee pain since 18 years which is pre-existing to policy.  Hence the cash less facility stands denied under clause under 18.  But the petitioner’s wife never had a right knee pain since 18 years and it was never mentioned in any treatment sheet or discharge summary of Apollo Hospital.  So where from O.P. Insurance Co. found that the complainants had history of 18 years right knee pain. And it is also mentioned here that the said mediclaim policy of the complainants is a fifth year policy, so the pre-existing clause is not applicable in respect of my client’s claim and that after this unfortunate incident the complainants somehow managed to pay the said amount to Apollo Hospital,  Chennai, though the complainant is a continuously five years insured under mediclaim policy of opposite parties Insurance Company and that the complainants on several occasions requested the opposite parties and his agent for reimbursement of the said medical expenses but the opposite parties always denied the same and finally on 28/03/2018 the complainants wife sent a legal notice through Ld. Advocate Koushik Biswas but they did not bother to give any reply to the complainants or her Advocate and that in spite of being a regular customer of opposite parties Insurance Co. Ltd. the complainants has to suffer from such mental pain and agony and it is a clear deficiency of service and mal-practice of opposite parties Insurance Company.

          And that due to the harassment inflicted upon the complainants/petitioner by the opposite parties the complainants/petitioner has been suffering from acute mental pain and agony and that the petition of complainant  is a bonafide one and he is entitled to get the orders as prayed for and the cause of action of the instant case arose on 04/12/2017 when the opposite parties denied the cashless facilities then finally on 28/03/2018 when the complainants sent a legal notice through her Ld. Advocate.

       Complainants filed the complaint petition praying directions upon the opposite parties to pay(a) sum of Rs.2,50,140/-medical expenses which is incurred by the complainants as per bill date 04/12/2017 of Apollo Hospital, Chennai along with an interest of 10% per annum and to pay a sum of Rs.1,00,000/- for mental pain and agony and to pay cost of the suit and to pass an order for any other relief/ reliefs as deem fit and proper under law and equity.

The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him.  This opposite party submits that the complainants switched over from Star Health and Allied Insurance Co. Ltd. to Bajaj Allianz General Insurance Co. Ltd. on 30/06/2017 and received one mediclaim policy being no. OG-18-2401-8421-00000277 effective from 30/06/2017 from the opposite parties against Chandranath Mukherjee and Shubhra Mukherjee and that the complainants registered a claim being No. OC-18-1002-8421-00008959 on 29/11/2017 with the opposite parties on account of an alleged TKR of the said Shubhra Mukherjee that happened on 30/11/2017 at Apollo Hospital, Chennai which was repudiated on 04/12/2017 and that the opposite parties repudiated the said claim on the ground of non-disclosure of materials facts (PED)  and it is further submitted that during the process of the claim this answering opposite parties had initiated investigation through its authorized agent and sought for the documents stating the medical history of the complainant’s wife.  Thereafter, upon investigation, the claim of the complainants had been repudiated on the ground of suppression of material facts, in particular, that the complainant’s wife was suffering from knee pain/problems since the last 18 years.  It is further submitted that during the purchase of the Policy, the aforesaid fact of a pre existing disease was not disclosed by the complainant on the proposal form at the time of availing the said policy.  Thus, it appears that the complainant had voluntarily and deliberately not disclosed the said fact with the opposite parties had discovered during the process of the claim.  Such act on the part of the Complainants amounts to violation of terms and conditions of the policy, in particular, Clause 18; Disclosure to information; under PART C; Definitions applicable for hospital case, health guard, critical illness, personal accident and educational grant, wherein it is provided that the aforesaid act has not only resulted in violation of the terms and conditions of the said policy but has also contravened the basic principle of Úberrima Fides’ which governs the sanguinity of every Insurance Contract.  Thus, the complainants is not entitled to any compensation and/ or issuance claim or whatsoever amount  and it is further submitted by the opposite parties that the aforesaid act of the Complainant amounts to breach of policy terms and conditions and the basic principle and the complainant is not entitled to any claim from/ against the opposite party as mentioned and the opposite party is not liable to make payment of any compensation to the complainant as demanded/ prayed for and prayed for dismissal of instant case in limini and with cost.

            The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party nos. 1 and 2.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

            Complainant and opposite party nos. 1 and 2 filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party nos. 1 and 2 heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant Chandranath Mukherjee is a ‘Consumer’ of the opposite party?

    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards   the Complainant?

    4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Chandranath Mukherjee  is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein being the customer of the opposite party Insurance Company and opposite party No.1&2 are the service provider, so being consumer he is entitled to get service from the opposite party.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the upon the opposite parties to pay(a) sum of Rs.2,50,140/-medical expenses which is incurred by the complainants as per bill date 04/12/2017 of Apollo Hospital, Chennai along with an interest of 10% per annum and to pay a sum of Rs.1,00,000/- for mental pain and agony and to pay cost of the suit other reliefs as this Forum deems fit and proper, ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

1. Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant? 

The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the opposite party Insurance Company is unquestionable and that is why the complainantinsured their life before the said company without any doubt.It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

         The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                That the observation of the Apex court in Satwant Kaur’s case as :-   “thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses.”

    The case of the complainant is that he and his wife have been jointly insured under mediclaim policy of star health and allied Insurance Company limited since 2013 and subsequently the complainant switched over their mediclaim policy at Bajaj Allianz General Insurance Company which is in continuation of family health optima Insurance policy of 2013. Complainant further states that on 30.6.2017 the complainants switched over their mediclaim policy before opposite party insurance companies Star Package Policy valid from 30.6.2017 to 29.6.2018 and paid premium amounting to Rs.13,444/- and that is the 5^th year policy. The complainant also purchased one extra care policy being no. OG 182401841600000256 period of insurance 30.6.2017 to 29.6.2018 premium amounting to Rs.6037/-. Complainant also states that his wife undergone operation for total knee replacement at Apollo Hospital on 30.11.2017 by admitting thereon 29.11.2017 and discharged from 4.12.2017. Medical expenses incurred amounting to Rs.2,50,140/- vide bill dt. 4.12.2017. During that treatment period the complainant applied for cashless facilities of opposite party Insurance Company vide company’s health card being no.18-8555555 OA in respect of his insurance policy. That on 04.12.2017 the opposite party Insurance Company denied the cashless facility with a baseless reason that the complainant’s wife had a right knee pain since 18 years which is pre-existing to the policy. But the complainant never had a right knee pain since 18 years and it was never mentioned in any treatment sheet or discharge summary of Apollo Hospital. The complainant also states that the said policy is a 5^th year policy. So, the pre-existing clause is not applicable in respect of his claim. Complainant on several occasions requested the opposite party and his agent for reimbursement of the medical expenses but the opposite party always denied the said claim and finally on 28.3.2018 the wife of the complainant sent a legal notice through her Advocate but the opposite party did not pay heed.  According to the complainant that they suffered mental pain and agony due to deficiency of service and malpractice of opposite party Insurance Company. So, they filed the instant complaint before this Forum praying directions upon the opposite parties as incorporated in the prayer portion of the complaint petition.  

            Opposite parties in their written notes of argument stated that the complaint has been filed in willful suppression and distortion of material facts and also stated that the complainant switched over from Star Health And Allied Insurance Company Limited to Bajaj Allianz General Insurance Company Limited on 30.6.2017 and received one mediclaim policy being no. OG-18-2404-8421-00000277 effective from 30.6.2017 to 29.6.2018 from the opposite party against Chandra Nath Mukherjee and Subhra Mukherjee. Then the complainant registered a claim being no. OC-18-1002-8421-00008959 on 29.11.2017 with the opposite party on account of an alleged TKR of the said Subhra Mukherjee that happened on 30.11.2017 at  Apollo Hospital, Chennai which was repudiated on 04.12.2017. Opposite Party again received a legal notice dt. 28.3.2018 but they did not care to reply the same. The opposite party repudiated the said claim on the ground of non-disclosure of material facts (PED). Opposite party referred a case decision of Hon’ble Supreme Court in Life Insurance Corporation of India vs. Manish Gupta (Civil Appeal no.3944 of 2019) held that the declaration which was furnished by the proposal constituted the basis for the issuance of the policy…….. The documentary material indicates that there was a clear failure on the part of the respondent to disclose that he had suffered from rheumatic heart disease since childhood. The grounds for repudiation were in terms of the exclusions contained in the policy. The opposite party in paras 5 to 12 denied and disputes the claim of the complainant and subsequently assailed that the complainant is not entitled to any claim from the opposite party and the instant case is not maintainable and it is misrepresented and suppressed the material facts in respect of the provisions of law and deserved to be dismissed with cost.

  The complainant in his reply of argument stated that the claim made by the complainant during the period of 5^th year policy and it is well known to all that in the 5^th year policy the exclusion clause of the pre existing disease is not applicable in case of any mediclaim. So, the history of 18 years knee pain is not an important point in this case. He also submitted that whether there is any suppression of fact or not by the complainant the burden of proof is completely upon the opposite party Insurance Company but they failed to produce any single document that there is a suppression of fact at the time of inception of policy, because all application form lying in the custody of the Insurance Company, only verbal submissions of the Ld. Advocate of the Opposite Party Insurance Company is not enough to prove the case and once again it is submitted that the 18 year’s knee pain history, suppression of fact are not the important point in this case because the claim was made in the 5^th year policy. So, the complainant prayed for an order as prayed in the prayer portion of the complaint petition.

            It appears from the special terms and conditions of opposite party Insurance Company that previous policy no. P/191120/01/2017/001614 expiry 29.6.2017. It is hereby agreed and understood that this health guard section of the star package policy issued with portability benefit from the individual/ floater policy of Star Health & amp; Allied Insurance Company Limited & amp continuity is extended from 30^th June, 2013. The continuity for 4 years is extended on SI 300000 Chandranath Mukherjee & amp; Subhra Mukherjee. All other terms and conditions coverage & amp; amp exclusions of the star package policy remains unaltered CB to be transfer 90000. The exclusion specific to Section 2 states that benefits will not be available for any preexisting condition, ailment or injury until 48 months of continuous coverage have elapsed, after the date of inception of the first Star Package Policy covering health guard section with us. The above exclusion B1 shall cease to apply if you have mentioned a star package policy covering health guard section with us for a continuous period of a full 4 years without break from the date of your first star package policy covering health guard section with us.

             It appears from the letter of the opposite party dt. 4.12.2017, denial of cashless facility speaks that in respect of patient namely, Subhra Mukherjee (18-85555550A) being a patient of right osteoarthritis right knee-right TKR stated that they have verified the coverage terms and conditions as per the insurance plan and on primary scrutiny of the request they are unable to issue the authorization for the reasons i.e. the preauthorization request states that the patient is diagnosed of having of right osteoarthritis right knee-right TKR. The patient is having right knee pain since 18 years which is pre-existing to policy, any medical/ surgical expenses incurred on treatment of the said ailment is a standard exclusion under the policy, hence the cashless stands denied under clause Section: 18.

            The transfer information sheet dated 1.12.2017 depicts that  in the column  Chief Complaints it is stated that 54 years old female patient admitted with case of right knee pain since 18 years. But treating doctor had no remarks under the column of past history that the patient was suffering from pre-existing disease. It is not clear from the Xerox copy of documents that who has written the notes in the column of chief complaints. The doctor had not been examined during the course of proceeding.   

            Perused the case record, documents, evidence and hearing the arguments it appears that the claim of the complainant was repudiated by the OP insurance company on the ground that she was suffering from pre-existing disease and the life assured suppressed his/ her suffering in the policy Form so it is breach of terms and condition on the part of the complainant.  Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring treatment/operation. In the instant case the opposite party could not file any previous prescription of any doctor prior to taking out insurance policy that the life assured borne any symptoms or sickness relating to her disease and she was consuming medicine for the recovery.

            Had she been suffering from knee problem prior to acceptance of policy then what was her problem to receive treatment from the date of knowledge of suffering. No one would like to remain without treatment when she has sufficient funds to take treatment.

           During the period of argument the advocate on behalf of the opposite assailed that the treating hospital clearly depicts that the complainant/ patient was suffering from knee problem and it was written in the notes of treatment which leads to her knee replacement.

There is no material in the record to show that in any proposal form, it was concealed or mentioned by the proposer that she was suffering from knee problem. There is no material to show that there was any earlier treatment in respect of any knee problem. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the opposite company was having no legs to stand, so it is deserved to be discarded by this Forum/Commission. 

                It was pleaded on behalf of the complainant that if an insured is not aware of an ailment he/she may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.

            No documents in respect of treatment of the complainant before the acceptance of Proposal Form are in the case record which corroborates that the complainant has been suffering from knee problem which leads to her knee replacement. The opposite party failed to produce such document to deny the claim of the complainant that during the acceptance of proposal Form proposer supplied the correct information regarding her health.

            Upon consideration of the evidence adduced by the parties, this Forum/Commission observed that the Insurance Company had failed to bring on record any proof in support of their plea that the life assured was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of knee replacement. Every person may suffer from normal diseases like acidity, fever, common cold and indigestion which do not lead to knee replacement. So the notes in the column of chief complaints of the hospital have no relevancy of suffering from pre-existing disease prior to receiving the policy but opposite party insurance company used the said notes of treatment summary only to evade the responsibility of paying the claim. This should not be the intention of the organisation who has been established for the purposes of benefit of the public.  This Forum thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in repudiating the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.    

           We do not find suppression of any material fact by the insured in the proposal form and opposite party has committed deficiency in repudiating claim on flimsy grounds.

             So we are in a considered opinion to allow the complaint as policy holder was not suffering from any pre-existing disease which she suppressed when she signed the policy proposal of this opposite party Insurance Company and opposite party could not prove the same. We direct the opposite party Insurance Company i.e. the opposite party No.1&2 to pay the claim amounting to Rs.250,140/- against the policy being no OG-18-2404-8421-00000277, a sum of Rs.20,000/- for mental pain, agony and harassment and another Rs.10,000/- for litigation cost.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

            The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.1&2 are liable to pay the ordered amount.

ORDER

Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite Party No.1 &2 with a litigation cost of Rs.10,000/-.

           The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1&2 are directed to pay the sum expensed during the impugned treatment amounting to Rs.250,140/- to this complainant within 45 days from the date of order.

          The opposite party No.1&2 is also directed to pay a sum of Rs.20,000/- as compensation to this complainant for mental pain, agony and harassment.   

            At the event of failure to comply with the order  the Opposite Party No.1&2  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

                       Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.