Order dictated by:

Sh.S.S.Panesar,President.

1. Mrs.Sulekha Arora & Others complainants have filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that Rakesh Kumar Arora husband of complainant No.1 and father of complainants No.2 & 3 have purchased mediclaim/health Insurance policy from opposite party No.1 vide policy No. 2002012814P179708130 and got insured himself and complainant No.1 under the said Policy commenced from  25.6.2014 to 24.6.2015 by paying premium of Rs. 6450/- for himself and Rs. 5750/- for complainant No.2 with service tax, stamp duty  ; total of Rs. 12,258/-. Sh. Rakesh Kumar Arora and complainant No.1 Smt.Sulekha Arora have been regularly getting the mediclaim/health Insurance policy from opposite party No.1 since 25.6.2003, the detail of the policies is as under:-

1. Policy No. 200201/48/03/20/00000313 valid from  25.6.2003 to 24.6.2004 ;
2. Policy No. 200201/48/04/20/00000245 valid from  25.6.2004 to 24.6.2005 ;
3. Policy No. 200201/48/05/20/00000230 valid from  25.6.2005 to 24.6.2006 ;
4. Policy No. 200201/48/06/20/00000234 valid from  25.6.2006 to 24.6.2007 ;
5. Policy No. 200201/48/07/20/00000255 valid from  25.6.2007 to 24.6.2008 ;
6. Policy No. 200201/48/08/97/00000288 valid from  25.6.2008 to 24.6.2009 ;
7. Policy No. 200201/48/09/97/00000278 valid from  25.6.2009 to 24.6.2010 ;
8. Policy No. 200201/48/10/97/00000267 valid from  25.6.2010 to 24.6.2011 ;
9. Policy No. 200201/48/11/97/00000304 valid from  25.6.2011 to 24.6.2012 ;
10. Policy No. 200201/48/12/97/00000302 valid from  25.6.2012 to 24.6.2013 ;
11. Policy No. 2002012813P179708125 valid from  25.6.2013 to 24.6.2014
12. Policy No.  2002012814P179708130 valid from  25.6.2014 to 24.6.2015 ;

During all these policies Sh. Rakesh Kumar Arora and complainant No.1 Sulekha Arora paid valid premium  to opposite party No.1 . However, during the current policy Sh. Rakesh Kumar Arora suddenly fell ill and suffered blood in stool  and pain in abdomen and was admitted in Fortis Escort Hospital, Amritsar on 22.4.2015 but he could not survive and died on 23.4.2015 at 6.40 p.m. In this regard a death certificate was issued by the hospital and complainants spent Rs. 1,23,504/-  on the treatment of Rakesh Kumar Arora. Besides the abovesaid amount of Rs. 1,23,504/- the complainant also spent Rs. 12,160.8p ps for the injection used in the trament of deceased Rakesh Kumar Arora. Thus total amount of Rs. 1,35,664.80 paise was spent for the treatment of deceased Sh.Rakesh Kumar Arora. After the death of Rakesh Kumar Arora, complainant lodged claim with the opposite party No.1 and submitted all claim documents  including claim form , medical record, hospital record, bills  as required by opposite party No.1. The complainants were surprised to receive letter dated 31.7.2015  vide which the opposite parties have repudiated the claim of the complainants on the ground that deceased was suffering from Cirrhosis of liver  and the disease was due to alcohol, as such the claim is not payable. The said plea taken by the opposite parties is false and baseless as deceased never suffered from any such disease earlier and it was only on 21.4.2015 when the deceased suffered pain in his abdomen and was admitted in hospital on 22.4.2015 and was declared dead on 23.4.2015.  The deceased was not taking liquor and was not suffering from any such chronic disease. It is important to mention that before  issuing the policy, deceased was fully medically fit and even he was duly medically examined by the doctors and was found to be perfectly fit  and after fully satisfaction regarding health of both insured, the policy was issued. The abovesaid action of the opposite parties in not settling the genuine claim of the complainants amounts to deficiency in service. The complainants have sought for the  following reliefs vide instant complaint:-

1. Opposite parties be directed to immediately pay a sum of Rs. 1,35,664.80 ps for the medical treatment expenses spent on treatment of deceased alongwith interest @ 24% p.a. from date of claim till date of payment ;
2. Compensation to the tune of Rs. 50000/- may also be awarded to the complainant for the mental pain, agony, harassment and inconvenience suffered by the complainants at the hands of the opposite parties;
3. Opposite parties be also directed to pay litigation expenses to the tune of Rs. 5000/-  as well as counsel fee to the tune of Rs. 5000/- to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party No.1 appeared and filed written version taking certain preliminary objections stating therein inter alia that complainant has got no cause of action to file the present complaint against the opposite parties ; that complainant has not come to this Forum with clean hands. The true fact is that after receiving the information from the complainant regarding hospitalization of the husband  of the complainant namely Rakesh Arora, who was admitted in Fortis Escort Hospital on 22.4.2015 and died on 23.4.2015. After receiving the documents relevant for the settlement of the claim the opposite party has sent all the documents to its TPA namely M/s. Vipul Medicorp TPA Pvt.Ltd for the settlement of the claim . During enquiry from the hospital where the patient was admitted for his treatment , it was found that  the concerned doctor of the hospital while issuing death summary of the deceased has clearly mentioned therein that USG abdomen was done which revealed Cirrhosis of liver with Portal hypertension alongwith other diseases which is the major reason being his alcoholic . This fact has also been mentioned by the hospital management in the death certificate of the deceased. Hence, the claim was not maintainable under exclusion clause 4.9  of the policy and was liable to be rejected. On the basis of the abovesaid clarification  of the hospital, the opposite party has repudiated the claim of the complainant and the complainant was informed vide letter dated 31.7.2015. At the time of issuing the said policy all the terms and conditions of the policy were duly read over and explained to the insured  and the insured after admitting these terms and conditions to be correct gave his consent to issue the said policy. As such the opposite party has repudiated the claim of the complainant as per terms and conditions of the policy and the opposite party is not liable to pay any claim  and the complaint is liable to be dismissed against the opposite party. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

3.       Opposite party No.2 did not turn up despite service of notice, as such it was ordered to be proceeded against ex-parte.

4.       In his bid to prove the case Sh.Rajinder Joshi,Adv.counsel for complainant tendered into evidence duly sworn affidavit of complainant No.1 Sulekha Arora Ex.C-1 alongwith documents Ex.C-2 to Ex.C- 24 and closed the evidence on behalf of the complainant.

5.       To rebut  the aforesaid evidence Sh. Rajinder Nayyar,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Surinder Singh,Divisional Manager Ex.OP1/1, copy of reply to legal notice Ex.OP1/2, copy of death summary Ex.OP1/3, copy of repudiation letter Ex.OP1/4 and closed the evidence on behalf of opposite party No.1.

6.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

7.       Ld.counsel for opposite party No.1 has vehemently contended that it is not disputed that Rakesh Kumar  Arora , husband of complainant No. 1 and father of complainant No.2 & 3 purchased mediclaim/health Insurance policy from opposite party No.1 vide policy No. 2002012814P179708130 and got himself  and complainant No.1 Sulekha Arora insured under the said policy which commenced w.e.f. 25.6.2014 to 24.6.2015, copy of the Insurance policy is Ex.C-2 on record. It is also not disputed that Rakesh Kumar Arora has expired, copy of death certificate is Ex.C-14 on record. Rakesh Kumar Arora was admitted for treatment at Fortis Escort Hospital on 22.4.2015 but he could not survive and was declared dead on 23.4.2015 and the complainant No.1 claimed to have spent an amount of Rs. 1,35,664.80 ps on the treatment of her husband Rakesh Kumar Arora. But, however, the claim had to be repudiated by the opposite party in view of repudiation letter Ex.C-20 on the ground that disease suffered by Rakesh Kumar Arora was due to  Alcohol as per query reply of treating doctor of Fortis Escort Hospital. Hence, the claim was not admissible under exclusion clause 4.9 of the policy and the same stood repudiation. There is absolutely no deficiency in service on the part of the opposite party. The terms and conditions of the Insurance Policy are binding interse parties and this Forum cannot add,delete or substitute any words. Reliance in this connection has been  place on M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd-Appellant Vs. United India Insurance Co.Ltd. & another –Respondents  2010(4) RCR (Civil), wherein it has been laid down that in a contract of insurance , rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has further been held in this judgement that  in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add,delete or substitute any words. In this judgement it has been further held  by the Hon’ble Supreme Court that where there is  breach of conditions of the insurance contract by the insured, the insurance company is not liable to pay compensation in case of loss.      It is contended that  instant complaint is nothing but an abuse of the process of the court and therefore, complaint may be dismissed with cost.

8.       But, however, from the appraisal of the evidence on record, it becomes evident that the repudiation of the claim  of the complainant has been wrongfully made by the opposite party. Not only that the insured was covered under Insurance policy w.e.f. 25.6.2014 to 24.6.2015  Ex.C-2 but he was also holding health Insurance policy from the opposite party ever since 25.6.2003 to 24.6.2014 continuously. Copies of Insurance Policies account for  Ex.C-3 to Ex.C-13 on record. If insured Rakesh Kumar was Alcoholic , health insurance policies could not have been issued in his favour continuously  by the Insurance company because health cover is issued to a beneficianry/insured person on proper medical examination only. If the opposite parties have not taken proper care at the time of issuing the Insurance policies in favour  of the insured Rakesh Kumar, then they should curse their own stars and no inference can be drawn adverse to the interest of the insured on that account. Opposite parties cannot be given a concession to derive benefit on account of their own default.

9.       Not only that in the case in hand, the opposite parties have relied upon death certiciate Ex.C-14 issued by the doctor to deny the Insurance claim. But no attending medical record  saw the light of the day in the court. It is the case of the opposite party that Rakesh Kumar Arora, patient was unconscious at the time of the admission in hospital.  In such a situation, who briefed  the doctor regarding the diseases suffered by him, is anybody’s guess. Moreover, there is absolutely no suppression of material facts on the part of the insured at the time of revival of the policy and the Insurance policies have been continuously revived by the opposite party in favour of the insured from time to time ever since the year 2003. It is only at the time when the Insurance claim was pressed into service,  that the opposite party has come up with the defence that the insured has suppressed the material facts  regarding the diseases suffered by him from the opposite party at the time of obtaining the Insurance policy in dispute. Moreover, the history recorded in the hospital bed head ticket Ex.C-15 cannot be treated as medical evidence and in such a situation allegation  of suppression of disease cannot be said to have been established. Reliance in this connection can be had on LIC of India & Anr-Petitioners Vs. Kamla Devi-Respondent 2009(3) CPC 244 wherein it has been held that the issue of suppression of material facts by the insured does not arise. The petitioner-LIC’s counsel relied basically on the bed head ticket wherein it is mentioned that the insured was consuming alcohol for a decade in high doses. This statement of history of the deceased was not given by the insured because insured was admitted in an unconscious state. There is no certificate to this effect by the doctor indicating how he elucidated this information. Facts of authority ‘supra’ are fully applicable to the case in hand on all its fours.

10.     Not only that the only reason assigned for repudiating the claim of the insured/ Rakesh Kumar Arora has been that he was alcoholic . But, however, the same cannot be a ground for repudiating the claim. Because taking of  liquor is not a disease when the deceased remained alive ever since the year 2003 uptil the year 2015. Reliance in this connection can be had on Life Insurance Corporation of India-Appellant Vs. Smt.Sukhwinder Kaur-Respondent 2008(1) CPC 675 of our own Punjab State Consumer Disputes Redressal Commission, Chandigarh  wherein it has been laid down that the appellants had not only failed to lead reliable evidence to prove if Kulwant Singh was taking alcohol for the last 20 years prior to his death but even the law has not been produced that if the factum of taking alcohol was suppressed while filling the proposal form. We find no merit in appeal which is dismissed with costs of Rs. 10000/-.

11.     From the aforesaid discussion, it emerges that the opposite party has wrongly repudiated the rightful claim of the complaint regarding the Insurance claim      of Rakesh Kumar Arora (now deceased) As such the opposite parties are held deficient in service. Consequently the mediclaim for Rs. 1,35,664.80 ps succeeds and the opposite parties are directed to make the payment of the aforesaid amount of Rs. 1,35,664.80ps  to the complainants. The complainants are also awarded compensation to the tune of Rs. 5000/- as well as litigation expenses to the tune of Rs. 2000/-. Opposite parties are directed to make the payment of the awarded amount within 30 days of the receipt of copy of the order ; failing which awarded amount shall carry interest @ 9% p.a. from the date of filing of the claim until full and final recovery. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 2.11.2016.