Delhi

North East

CC/32/2017

SUSHIL KUMAR - Complainant(s)

Versus

UNION BANK OF INDIA - Opp.Party(s)

20 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 32/17

 

In the matter of:

 

	Shri Sushil Kumar s/o Sh. Brahm Singh H.No. 147, Gali No. 1, Village Khajoori Khas, Delhi  110094	Complainant
	Versus
1         2	Union Bank of India Sher Pur Chowk Branch Karawal Nagar Road Delhi 110094   Religare Health Insurance Co. Ltd. D-3, P3B, District Centre, Saket New Delhi 110017	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

31.01.2017 20.08.2018 20.08.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he has a savings bank account bearing no. 645802010017025 with Union Bank of India at Karawal Nagar, New Delhi Branch (arraigned as OP1 in the original complaint) which had advised him to take Health Insurance Scheme with OP (arraigned as OP2 in the original complaint) which was a 100% cashless scheme. Therefore, the complainant, acting on the advice of OP1, contacted the OP2 which sent their agent Rajkumar and under whose instruction the complainant underwent the medical checkup before taken the policy and the same was okayed by the said agent. Thereafter the OP2 issued a Health Insurance Policy bearing No. 10397655 w.e.f. 18.09.2015 to 17.09.2016 covering the complainant and his wife against the premium of                Rs. 19,570/- for a total sum assured of Rs. 5,00,000/-. The said policy was renewed from 18.09.2016 to 17.09.2017 against enhanced premium of Rs. 19,742/-. The complainant fell ill around 25.11.2016 and was admitted at Apollo Hospital, Noida on 25.11.2016 and was discharged on 27.11.2016 and an expenditure of Rs. 25,392/- was incurred by the complainant on the medical treatment in the said duration of admission at Apollo Hospital. The complainant has submitted that the OP2 vide letter dated 27.11.2016 had rejected the complainant’s request for pre-authorization of cashless facility. Later on, the complainant submitted all the treatment related documents in first week of December with OP2 vide claim no. 90277976 for process of claim/reimbursement of Rs. 25,392/-. However the OP2 failed to pay the same and therefore the complainant was constrained to file the present complaint alleging deficiency of service against OP2 causing him mental pain, agony and financial turmoil and prayed for issuance of directions against OP2 to pay a sum of Rs. 25,392/- to the complainant towards medical expenses incurred by complainant at Apollo hospital, Rs. 50,000/- towards compensation for mental suffering pain and agony and financial turmoil and Rs. 10,000/- towards litigation charges.

The complainant has attached copy of passbook of savings account held with OP1 bank, copy of policy cover note for 2015-16 and T & C of policy alongwith premium acknowledgement and copy of renewed policy certificate for 2016-2017, copy of proposal form dated 15.09.2015 filled by the complainant, copy of invoice / bill no. NOI-ICS-8354 dated 27.11.2016 issued by Apollo Hospital on the complainant for Rs. 25,392/- alongwith breakup of the bill for date 25.11.2016 to 27.11.2016, copy of letter dated 27.11.2016 issued by OP2 denying cashless facility to the complainant, copy of medical investigation reports with Doctor’s note on course in the hospital and discussion and advice on discharge, copy of discharge summary dated 27.11.2016 and copy of health insurance cards of complainant and his wife alongwith covering letter for dated 16.09.2016.

2. Notice was issued to OP2 only owing to the complainant’s failure to satisfy this Forum on cause of action against OP1. OP2 entered appeared on 09.03.2017 and filed its written statement on 07.04.2017 in which OP2, while admitting the factum of the coverage granted to the complainant and his wife vide policy         no. 10397655 from 2015-2016 and thereafter renewed from 2016-2017 for sum assured Rs. 5,00,000/- subject to policy terms and conditions, denied / declined the cashless facility request raised by the complainant for hospitalization owing to the pre-existing nature of the ailment. OP2 further submitted that thereafter when the complainant had filed reimbursement claim for the above mentioned hospitalization, OP2 had made the following observations :

1. That as per the Patient History and Physical record prepared by the hospital authorities, complainant was mentioned to be having a history of Chronic Obstructive Pulmonary Disease (COPD) from past 6 years.
2. That as per the Emergency Initial Assessment Form dated 25.11.2016 complainant was mentioned to be having a history of Chronic Obstructive Pulmonary Disease (COPD).
3. That as per the Progress notes prepared by the Hospital Authorities dated 26.11.2016 complainant was mentioned to be having a history of Trauma in left leg (LL) knee 8 years back.

3. The OP2, therefore in view of the above noted observations rejected the claim of the complainant vide letter dated 21.12.2016 under clause 6.1 of the policy for non disclosure of COPD since 6 years, Diabetes Mellitus (DM) Type 2 and 8 years old history of left leg knee trauma. OP2 took the plea that the complainant had the opportunity to disclose the pre-existing condition to OP2 at the time of filling the declaration made in the proposal form dated 15.09.2015 under the head “pre-existing disease”, “respiratory disorder” but answered the same as “NO” apart from voluntarily  admitting that no information has been withheld from the OP2, thereby breaching the contract in absolute by not declaring his correct health status and withholding material information of past history of COPD, DM and Left Leg Knee Trauma. Therefore, OP2, owing to such non disclosure made by the complainant, cancelled the policy of the complainant vide letter dated 22.02.2017 and 22.03.2017 under clause 6.13 and 6.1 of the policy terms and conditions and submitted that there was no deficiency in service on its part since the complainant’s grievance was duly acknowledged, attended to and resolved vide letters dated 16.01.2017 and 27.01.2017 by its grievance redressal machinery and since the contract of insurance is of utmost good faith based on doctrine of Uberimma Fides and the complainant had obtained the policy from OP2 on non disclosure of ailments suffered by him, the insurance policy was rendered null and void ab-initio and the fact that the complainant had not challenged the contents of repudiation letter dated 21.12.2016 and policy cancellation letters dated 22.02.2017 and 22.03.2017, the same are deemed to have been admitted as correct, lawful, valid, binding and enforceable on the complainant.

Lastly, OP2 relied upon the judgment of Hon’ble Supreme Court in Satwant Kaur Sandhu Vs New India Assurance Co. Ltd (2009) 8 SCC 316 in which the Hon’ble Supreme Court held that the expression “material fact” is to be understood to me any fact which influences the judgment of a prudent Insurer in deciding whether to accept the risk or not. OP2 further relied upon the judgment of Hon’ble NCDRC in LIC Vs Neelam Sharma in which the Hon’ble NCDRC had held that the incorrect and untrue statement made in proposal form were breach of policy terms and conditions. In view of the defence taken by OP2, it prayed for dismissal of the present complaint.

4. OP2 has filed copy of policy certificates, covering letter dated 30.09.2015 and 16.09.2015 accompanying, copy of policy terms and conditions, copy of policy certificate, premium acknowledgement, copy of cashless facility denial letter dated 27.11.2016, copy of patient history & physical record, copy of emergency initial assessment form, copy of progress notes from Apollo Hospital Noida, copy of claim rejection letter dated 21.12.2016, copy of proposal form “Care”, copy of pre-policy medical examination form, copy of certificate by Head Underwriting of OP, copy of notice for cancellation of policy and policy cancellation letter dated 22.02.2017 and 22.03.2017 respectively, copy of grievance redressal letters dated 16.01.2017 and 27.01.2017 and copy of judgments relied upon by OP.
5. Rejoinder was filed by the complainant to the written statement filed by OP2 by way of summary denial of defence taken alongwith evidence by way affidavit reiterating his grievance taken in his complaint.
6. OP2 filed its evidence by way of affidavit reiterating its defence taken in the written statement and exhibited the documents filed alongwith the written statement as R2W1/A to R2W1/M.
7. Written arguments were filed by the complainant reinforcing and buttressing his grievance against the OP2.
8. Written arguments were filed by OP2 reemphasizing and justifying its defence of repudiation of claim of the complainant on grounds of non disclosure or pre-existing ailment amounting to breach of contract of utmost good faith and policy terms and condition. In addition to the defence already taken by OP2 in its written statement, reiterated in evidence and written arguments, OP2 placed on record the Gazette Notification of Insurance Regulatory and Development Authority Act 1999 (IRDA) Regulations, 2017 under clause 19 (4) enumerating the “General Principles” of which casts and absolute duty to disclose all material facts to the insurer in order to assess the risk as per its capacity. The clause states as here under:-

The policy holder shall furnish all information i.e. sought from him by the insurer, either directly or through the distribution channels which the insurer considers as having a bearing on the risk to enable the insurer to assess properly the risk covered under a proposal for insurance.

9. Lastly the complainant moved an application for deletion of OP1 from the array of parties on grounds of no relief prayed for against it and prayed that the present complaint be considered for relief only against OP2 be treated as OP for all purposes.
10.  The counsel for the complainant placed on record compilation of judgments relied upon in support of his contention of grievance against the OP in which the defence taken by OP of pre-existing disease of repudiation of claim have been assailed / rejected by Hon’ble NCDRC in judgments of Praveen Damani Vs Oriental Insurance Co. Ltd in Revision Petition No. 1696/2005 vide order dated 03.10.2006 and Tarlok Chand Khanna Vs United India Insurance Co. Ltd in Revision Petition No. 686/2007 vide order dated 16.08.2011 on grounds that most of the people are totally unaware of symptoms of disease suffered by them and therefore cannot be made liable to suffer because of reliance by insurance companies on their clauses to repudiate all claims in a malafide manner for the reason that no claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of as held by Hon’ble NCDRC in the judgment of National Insurance Co. Ltd Raj Narain 2008 NCJ 559 (NC). Further it is settled law that the onus to prove that the insured had a pre-existing disease was on the insurer which the insurer had failed to prove in the aforementioned cases (in judgments relied upon by the complainant).
11.  During the course of arguments, counsel for complainant argued that as per the medical examination form filed by the OP, the test of the complainant were conducted on 26.09.2015 i.e. 11 days after the proposal form which was filled on 15.09.2015 and the said medical form did not bear the medical examiner name.    
12.  We have given our anxious consideration to the rival contentions of both the parties and documentary evidence placed on record and relied upon by them in their respective grievance / defence.

It is not in dispute that the health policy coverage was given / extended to by OP to the complainant for two successive terms 2015-2016 and thereafter 2016-2017 on receipt of premium for sum assured Rs. 5,00,000/- covering the complainant and his wife namely Smt. Santosh Devi. The factum of hospitalization of the complainant at Apollo Hospital, Noida from 25.11.2016 to 27.11.2016 is also not in dispute as also the expenditure incurred by him to the tune of Rs. 25,392/- on the treatment undergone in the said period. However, the OP has repudiated the claim of the complainant on the basis of medical documents procured from Apollo Hospital, Noida where he was diagnosed with COPD, type 2 DM and left knee medial meniscus injury with effusion which was linked with history of knee trauma in left leg 8 years ago which diseases the OP has alleged that the complainant had not disclosed to OP at the time of filling the proposal form for taking the health policy under the head of Pre-Existing Disease details.

13. The Hon’ble National Commission in Judgment of Ravinder Singh Bindra V/s National Insurance Co. Ltd. I (2017) CPJ 498 (NC)  had held that In view of Insurance Co. not having produced any evidence or filed any document to show that the deceased was suffering from pre existing heart ailment or was treated for the same before date of proposal  which was essential to establish / prove the pre existing nature of the disease as contented by the Insurance Company as the onus to prove the same lies on it, the repudiation was held bad. Further the factum of concealment of hypertension were not sufficient ground amounting to suppression of any material information to repudiate the claim since it is not necessary that every person having hypertension shall suffer from heart disease.
14.  Further, the Hon’ble National Commission in the Judgment in Birla Sun Life Insurance Co. Ltd & Anr. V/s. Arvind Kaur I (2018) CPJ 301 (NC) had held that it was obligatory to insurer to either produce doctor who had allegedly treated the DLA  in Hospital or to have filed his affidavit or in the alternate it could have examined an official of hospital to prove / authenticate of photocopies which the insurance company relied upon before District Forum in support of its defence and in the absence of any such evidence, mere production of some unattested, unverified and unauthenticated photocopies could not have been the basis of holding the deceased been alcoholic and diagnosed with alcoholic liver disease thereby repudiating the claim. The Hon’ble National Commission in judgment of SBI Life Insurance Co. Ltd. V/s Baijnath Tanti II (2018) CPJ 95 (NC) observed that the Insurance Company have not field any affidavit of treating doctor to substantiate its claim that the DLA was suffering from Tuberculosis before taking health cover and had suppressed the same at the time of submitting declaration of good health in connection with revival of Insurance Policy and held that as there is no affidavit of treating doctor was filed to prove the treatment record, the same cannot be relied upon to the exent of disallowing the death claim. The National Commission also observed in this Judgment that In cases of revival of policy, the company must have been satisfied with the evidence submitted by policy holder pertaining to health else would have rejected the revival which it is fully authorized to do so. The Hon’ble National Commission in recent judgment of Life India Corpn of India V/s P.R. Sumangla III (2018) CPJ 106 (NC) had held that In view of the fact that LIC had not filed any document or proof to show that the complainant had knowledge of disease of diabetes pre-existing before the date of proposal form and no record of treatment prior to taking of insurance cover was submitted by LIC, no question of suppression of the fact of his diabetes arises  as held by Hon’ble NCDRC in its earlier case decided in RP No. 2157/2014 New India Insurance Ltd. V/s Rakesh Kumar in which the Hon’ble National Commission has held that even if the complainant is diabetic he may not be knowing of his disease and the insurance company has to prove beyond doubt that he had knowledge of his illness of diabetes prior to filling of proposal form (i.e. pre existing in nature). In all the aforesaid cases the Revision Petitions were dismissed on ground of repudiation of claim not justified by Hon’ble National Commission.
15.  In the present context, in light of observations made by Hon’ble National Commission in the above mentioned judgments, applied as relevant to the case in hand the OP has failed to place on record either any affidavit of the treating doctor who had treated complainant in Apollo Hospital or examined any official of said hospital to prove authenticity of medical documents which the OP relied upon before us in support of its defence and in the absence of any such evidence we don’t find force to validate the repudiation letter dated 21.12.2016 issued by OP to complainant for declining his claim of reimbursement of medical expenses to the tune of                 Rs. 25,392/- incurred on the treatment undergone by the complainant in Apollo Hospital from 25.11.2016 to 27.11.2017 on grounds of pre existing COPD, diabetes and left leg knee trauma merely on the basis of mere production of some unattested, unverified and unauthenticated photocopies of medical records of Apollo Hospital, Noida.
16.  We, therefore, find OP guilty of deficiency in service in wrongful, unjustified and unsubstantiated repudiation of the claim of complainant and allow the present complaint and direct the OP to pay a sum of Rs. 25,392/- to complainant towards reimbursement of the medical expenses incurred by him at Apollo Hospital, Noida in capacity of having being insured with OP for the given period. We further direct the OP to pay a sum of Rs. 10,000/- to complainant towards suffering of mental pain, agony and financial turmoil and Rs. 5,000/- towards litigation charges to the complainant, in addition to the mediclaim reimbursement.
17.  Let the order be complied with by OP within 30 days of receipt of this order failing which penal interest of 9% shall be imposed on and payable by the OP on the entire awarded amount of                          Rs. 40,392/- to the complainant from the date of this order till realization.
18.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
19.   File be consigned to record room.
20.   Announced on 20.08.2018. 

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member