BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.585 of 2019

      Date of Instt. 10.12.2019

      Date of Decision: 20.05.2024

Kewal Krishan Soni aged about 72 years son of Sh. Ishar Dass, resident of House No.29/7, Friends Colony, Jalandhar.

..........Complainant

Versus

1.       The Star Health and Allied Insurance Co. Ltd., Shri Bala         Complex, 15, Whites Road, Chennai-600014 through its     Managing Director/Chairman/Authorized Signatory/C.E.O.

2.       The Star Health and Allied Insurance Co. Ltd., EH-198, Second       Floor, Nirmal Complex, G. T. Road, Jalandhar, through its        Manager/Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       None for the Complainant.

                   Sh. Nitish Arora, Adv. Counsel for OPs.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant got the Senior Citizen Red Carpet Health Insurance Policy of OP No.1 on 08.05.2012 and the complainant was thoroughly medically examined at the time of inception of this mediclaim policy and premium was duly received by the OPs. The complainant was hale and hearty at the time of taking of this policy. Thereafter, after the inception of the said policy, the OPs renewed policy on subsequent due dates regularly and consecutively. At the time of renewal of the policy the complainant was thoroughly medically examined by the doctors of the OPs and the OPs used to accept the premium for every year after 2013. On 13.05.2016 the complainant renewed the policy and a new policy bearing No.P/211215/01/2017/000173 was issued to the complainant for the period 13.05.2016 to 12.05.2017 which was received after paying the premium of Rs.24,453/ and the complainant apprised the OPs that he has hypertension. The complainant had no prior ailment/disease at the time of inception of the policy except hypertension and its complications, but unfortunately in the month of September 2016, complainant suffered a heart problem all of a sudden and thereafter had to be hospitalized in Shriram Cardiac Centre, Joshi Hospital, Kapurthala Chowk, Jalandhar on 26.09.2016 and the complainant was operated upon thereof his heart problem and as such had to spend about Rs.1,50,000/- to the said hospital during his stay in the hospital. Thereafter, he was discharged from the hospital on 30.09.2016. The complainant submitted his claim No.CLI/2017/211-215/0070465 of Rs.1,50,000/- immediately to the OPs, visited the local office so many times, but with no result from the OPs. Even the applicant approached the head office of OPs telephonically for redressal of his grievances. Thereafter, vide letter dated 20.12.2016 the OPs unilaterally and illegally cancelled the policy of complainant and sent him a D.D. No.122632 dated 16.12.2016 for an amount of Rs.14,771/- drawn on HDFC Bank, Chennai being part payment of medical policy of the complainant, though the complainant never requested to cancel his policy and return him part payment of the premium. Rather the complainant was expecting his claim amount of Rs.1,50,000/- from the OPs. Thereafter, the complainant along with his son went to the office of OP No.2 along with above said D.D. to settle his claim, but they used to put off the matter on one pretext оr the other. Finally the complainant had to deposit the above said D.D. in his bank account No.04032010001820 of Oriental Bank of Commerce, Bhagat Singh Chowk, Jalandhar on 14.03.2017, the last date of the above said D.D. Thereafter, several requests in writing were made in the year 2017, 2018 and finally in 2019 and lastly on 16.10.2019 when a letter dated 09.10.2019 under registered postal cover was posted to the OPs and a letter dated 13.11.2019 from OP No.1. Repudiating the genuine, lawful and bonafide Claim of the complainant was received by the complainant on 30.11.2019. The OPs have illegally and unlawfully withheld the trust amount of the complainant with them unnecessarily to which they have got no right, for the reasons best known to them. As such this act, conduct and behavior of the OPs tantamounts to unfair, unlawful and in-genuine trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the claim amount of Rs.1,50,000/- alongwith upto date interest @ 18% per annum from the October 2016 till its actual realization to the complainant. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was given to OPs, who filed reply and contested the complaint by taking preliminary objections that the claim of the complainant is barred by limitation. The claim was repudiated vide letter dated 17.11.2016 by the OPs. The OPs had cancelled the policy of the complainant on 11.12.2016 and by returning the premium to the complainant vide demand draft issuing in his name amounting to Rs.14,771/- which was encashed by the complainant. The complainant has filed the present complaint beyond the period of limitation, thus the said complaint is liable to be dismissed on this ground only. It is further averred that no cause of action has arisen in favour of the complainant to file the present case. It is further averred that the OPs has acted strictly on the basis of the terms and conditions contained in the policy. The present case is premature as the complainant had not submitted the required documents for the purpose of the claim despite of repeated requests by the answering OPs. The complaint has been filed by the complainant with the malafide intention and further to grab the public money. Hence the present complaint is liable to be dismissed. It is further averred that the relief sought in the present complaint is in violation of the terms and conditions contained in the policy. Therefore, the complaint is liable to be dismissed with exemplary costs. It is further averred that the present complaint is the misuse of the legal process. The present complaint was filed only with the motive to harass the OPs. The complainant has no locus-standi and cause of action to file the present complaint. On merits, it is admitted that the complainant had purchased the senior citizen Red Carpet Health Insurance Policy from the OP on 08.05.2012. It is also admitted that the premium was received by the OP and after the inception of the policy, the same was renewed on subsequent due dates and the premium was accepted. It is also admitted that the complainant suffered heart attack in the year 2016 and had to be hospitalized in Shriman Cardiac Centre, Joshi Hospital Kapurthala Chowk Jalandhar. It is also admitted that he was operated upon of his heart problem and discharged from the hospital on 30.09.2016. It is also admitted that the complainant submitted his claim to the OPs, which was repudiated, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the OPs only as none has appeared on behalf of the complainant and have also gone through the case file very minutely.

6.                It is admitted that the complainant had purchased the senior citizen Red Carpet Health Insurance Policy from the OP on 08.05.2012. It is admitted that the premium was received by the OP. It is also admitted that after the inception of the policy, the same was renewed on subsequent due dates and the premium was also accepted. However, the conduction of medical examination of the complainant by the OPs has been denied by the OP. The complainant has alleged that at the time of renewal of the policy on 13.05.2016, the OP was apprised of the fact that the complainant is suffering from Hypertension as per Ex.C-3. The complainant has alleged that he was not having any previous disease or complaint or any ailment at the time of inception of the policy except the hypertension, which was also disclosed to the OPs. It is also not disputed that the complainant suffered heart attack in the year 2016 and had to be hospitalized in Shriman Cardiac Centre, Joshi Hospital Kapurthala Chowk Jalandhar. It is also not disputed that he was operated upon of his heart problem. He was discharged from the hospital on 30.09.2016. The complainant has proved on record the copies of the bill and discharge summary Ex.C-4 to Ex.C-16. It is also not disputed that the complainant submitted his claim to the OPs, which was repudiated by the OPs vide letter dated 17.11.2016. The complainant has alleged that as per Ex.C-15, his policy was cancelled illegally and draft of Rs.14771/- was sent to the complainant, which was later on got encashed by the complainant since his request for giving the entire claim was not considered and taken care of by the OPs and the last date of demand draft was also going to expire, he had to get the same encashed. The complainant has also proved that he approached the OPs number of times and wrote letters, which have been proved as Ex.C17 to Ex.C26, but his request was not paid any heed.

7.                The OP has admitted that amount of Rs.14,771/- was returned to the complainant after the cancellation of the policy as the complainant had not disclosed the material facts about his previous disease from the OP. Perusal of all the policies taken by the complainant and proved by both the parties Ex.C-3 and previous policies proved by the OP Ex.OP-1 to Ex.OP5 shows that in all the policies against the column of pre-existing disease of Kewal Krishan Soni, hypertension and its complications, BP and related disorders has been mentioned, but against the name of Jeewan Lata Soni, the co-insured, about pre-existing disease, Nil word has been mentioned, meaning thereby she was not suffering from any problem. The OP has proved the letter Ex.OP-8, which deals with the subject non-disclosure of pre-existing disease. As per this letter, the OP has informed the complainant that after the scrutiny of the claim papers and the record, they have found that the complainant has not disclosed the details that he was suffering from heart disease, chronic kidney disease, which was pre existing at the time of taking the policy for the first time during 8 May, 2012 to 7 May 2013. This letter was in the form of a notice to the complainant for the cancellation of the policy and as per Ex.OP-7 dated 08.12.2016, the policy of the complainant/Kewal Krisan Soni was cancelled and for the rest of the members, a separate policy was issued for the same period and the difference of the premium was ordered to be refunded. As per Ex.OP-10 on the basis of the fact of non-disclosure of previous existence of pre-existing disease, the name of the complainant was deleted and new policy cover was issued to the members. As per Ex.OP-11, the complainant has given the statement that he was not suffering from any kidney disease and as per the prescription of Sacred Heart Hospital, Maqsudan, the complainant was admitted in the hospital on 11.10.2008 and was discharged on 14.10.2008. The complainant was diagnosed to have ischemic heart disease and renal parenchymal disease. As per Ex.OP-8, he was diagnosed for HT, CAD, CKD, Normal LV Function, DVD. None on behalf of the complainant is present nor the complainant himself is present to rebut the fact that he was not suffering from any heart disease prior to the inception of the policy. He was not diagnosed for any heart problem in the year 2008 as per Ex.OP-19 or he was suffering from Hypertension only as alleged by him. He has made representation to the OP, which was decided on 13.11.2019, vide Ex.OP-21. Perusal of this document clearly shows that the opinion of the doctor vide Ex.OP-11 has been mentioned in this and confirmed that insured patient was having ischemic heart disease and renal parenchymal disease prior to inception of the medical insurance policy and his repudiation vide Ex.OP-22 dated 17.11.2016 was held to be valid. Since, the complainant was approaching the OP time and again and made representation also, which was decided on 13.11.2019 and the present complaint was filed in the year 2019, so the complaint is well within limitation, when the representation of the complainant was decided, so the contention of the OP that the complaint is not within time, is not tenable.

8.                So far as the pre-existing disease of the complainant is concerned. It has been proved that the complainant was suffering from ischemic heart disease and renal parenchymal disease in the year 2008 and none has come present to clarify or to rebut this document, therefore, the repudiation of the claim and cancellation of the policy qua the complainant is held to be valid and legal. It has been held by the Hon'ble National Commission in Petition No.66 of 1999, decided on 10.11.2008, titled as ‘Diwan Surender Lal Vs. Oriental Insurance Co. Ltd. & Anr.’ that ‘Claim repudiated by Insurance company on ground of non-disclosure of material facts Past illness accepted by complainant in hospital's admission record Not disclosed in proposal form but which was material for the issue of medi-claim policy Insurance policy issued on basis of utmost faith, which has been shattered by complainant Medical history given by complainant himself to treating doctor, not denied Medical claim rightly repudiated by Insurance company- Complainant held not entitled to any relief- Complaint dismissed.’ It has been held by Hon’ble Supreme Court, in a case titled as “Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd.”2009 (4) RCR (Civil) 692. The Hon’ble Supreme Court has referred “the term “Proposal Form” as defined under the Insurance Regulatory and Development Authority, 2002, which provides that proposal form means, form to be filled by the Proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake risk, and in event of acceptance of risk, to determine the rates, terms and conditions of a cover to be granted and further observed that in a contract of insurance, any facts which would influence the mind of prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering question in the proposal form. In case of non-disclosure of such fact, insurance company would be justified in repudiating the claim.” The Hon’ble Supreme Court has further observed that it is a fundamental principle of insurance law that utmost faith must be observed by the contracting parties. Good faith forbids either party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. The Hon’ble Supreme Court has referred MacGillivray on Insurance Law, who has summarized the assured’s duty to disclose as under:-

                   “The assured must disclose to the insurer all facts material      “to an insurer’s appraisal of the risk which are known or deemed to be known by the assured but neither known nor deemed to be known by the insurer. Breach of this duty by the assured entities        the insurer to avoid the contract of insurance so long as he can    show that the non-disclosure induced the making of the contract    on the relevant terms.

9.                So, in view of the above discussion material facts, have been concealed by the complainant. In such circumstances, there is no deficiency in service on the part of the OPs and the OPs have rightly repudiated the claim of the complainant and thus, the complainant has failed to prove his case and the complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

20.05.2024         Member                          Member           President