Punjab

Ludhiana

CC/15/393

Rajesh Kumar - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

Chand Singh Adv.

03 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 393 of 22.06.2015

Date of Decision          :   03.06.2016

 

Rajesh Kumar s/o Shri Madan Lal, r/o House No.4751, Street No.1, Shivaji Nagar, Ward No.59, Ludhiana.

….. Complainant

 

Versus

 

1.United India Insurance Company Limited, Division 1 Office III, Gulmohor Hotel Building, Ferozepur Road, Ludhiana, through its Branch Manager.

2.United India Insurance Company Limited, Head Office 24, Whites Road, Chennai-600014, through its Director/Managing Director.

..…Opposite parties

 

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT           

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant            :       Sh.Chand Singh, Advocate

For OPs                          :        Ms.Mandeep Kaur, Advocate proxy counsel for 

                                               Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, a holder of Family Medicare Policy No.2009002813P181712671 issued by OPs, got the same on payment of premium of Rs.8583/- through cheque No.956085 dated 6.12.2013 issued in favour of OP1, with validity period from 6.12.2013 to 5.12.2014. Even the complainant got Family Medicare Policy No.200900/48/12/06/00002025 through Shri Santosh Gupta, an agent of OPs with validity period from 3.12.2012 to 2.12.2013. All relevant information about health was narrated to the agent by the complainant and after satisfaction, amount of Rs.8583/-  through cheque No.956079 dated 30.11.2012 was paid and accepted by OP1. On 23.9.2014, the complainant suffered from abdomen pain, vomiting and fever, due to which, he remained hospitalized in CMC & Hospital, Ludhiana for period from 23.9.2014 to 27.9.2014. Intimation of this admission was given to OP1, but no response was received. Complainant after discharge from the said hospital, approached office of OP1 at Ludhiana for reimbursement of the incurred medical expenses on treatment. OP1 called upon the complainant for following the procedure laid down by the company and submit the original invoice showing incurred medical expenses along with cancelled cheque, discharge summary etc. Accordingly, the complainant filed original relevant documents consisting of retail invoice dated 27.9.2014 showing bill No.1335047 dated 27.9.2014 of amount of Rs.13,503/-; retail invoice No.1334713 dated 25.9.2014 of amount of Rs.25,735/-. Even a cancelled blank cheque No.956094 drawn at Oriental Bank of Commerce, discharge summary dated 27.9.2014 and certificate dated 24.11.2014 issued by Dr.Rohan Doke was supplied to the OP1 for processing the claim. Despite submission of these documents, OP1 lingered on the matter by not paying the incurred medical expenses of amount of Rs.39,238/-. Rather, the claim file of the complainant was closed with remarks “no further correspondence will be entertained” through letter dated 8.2.2015. Reports dated 13.2.2015 and 16.3.2015 issued by Dr.Deepak Jain and Dr.Sudodiah of CMC & Hospital, Ludhiana were not considered. Legal notice dated 9.4.2015 was served upon OPs through registered post and in reply thereto, it was stated by OPs as if complainant suffered from Adhesive Sub Acute Intestinal Obstruction, Post Exploratory. Laparotomy(Abdominal surgery) is alleged the cause of adhesions in abdomen, resulting in intestinal obstruction. It is claimed that this plea of OPs is not tenable. By pleading deficiency in service on the part of OPs, reimbursement of incurred medical expenses of Rs.39,238/- along with interest @18% per annum sought. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.5500/- more claimed.

2.                In joint written statement filed by OPs, it is pleaded interalia as if complaint barred under section 26 of the Consumer Protection Act; complaint is not maintainable in view of case being covered by exclusionary clause 4.1 of the terms and conditions of the insurance policy; complainant is estopped by his act and conduct from filing the present complaint because he has suppressed the material facts. Besides, it is claimed that complicated question of law and facts requiring elaborate evidence are involved, due to which, Civil Court of competent jurisdiction alone can decide the matter. Admittedly, the premiums were paid by the complainant for obtaining Family Medicare Policy-2014 bearing Policy No.2009002813P181712671 with validity period from 6.12.2013 to 5.12.2014. As per clause 4.1 of the policy, insurance company not liable to pay expenses incurred in connection with or in respect of any pre-existing condition and besides, the policy will be void in the event of mis-representation, mis-description or non disclosure of any material facts and as such, it is claimed that claim of the complainant rightly repudiated vide letter dated 1.4.2015 by TPA. Admittedly, the complainant lodged the claim for reimbursement of the medical expenses incurred during period of his admission in CMC & Hospital, Ludhiana from 23.9.2014 to 27.9.2014. That treatment was got by the complainant on being diagnosed as a case of sub acute intestinal obstruction. Matter was referred to Raksha TPA Pvt. Ltd., 2^nd Floor, SCO 181, Sector 7-C, Chandigarh for processing the claim as per terms and conditions of the policy. Doctors and officials of the said Raksha TPA, after scrutinizing the documents placed in the claim file, called upon the complainant vide letters dated 11.11.2014, 18.11.2014, 4.12.2014, 10.12.2014 and 28.2.2015 to submit the following documents:-

i)treating doctor certificate mentioning history of SAIO and related illness clearly specifying duration.

ii)treating doctor certificate mentioning personal history with habits, smoking, tabacoo chewing, alcohol, drugs etc., if any.

iii)original break up of main hospital bills

iv)Exact duration of illness with complete medical and surgical history(when explanatory laparatromy was done)

v) previous treatment record.

After processing the claim, said Raksha TPA sent the file to United India Insurance Company Limited, RO, Ludhiana for opinion of the Claim Review Committee, who decided to review the claim on the grounds mentioned in letter dated 1.4.2015. That draft letter was directed to be sent to the complainant. So, claim of the complainant was repudiated as no claim vide letter dated 8.5.2015 on the ground that illness, for which, the claim lodged is pre-existing since from the inception of the policy, due to which, claim not payable as per clause 4.1 of the policy. The policy in question was in the 2^nd year of its inception. Laparotomy (abdominal surgery) is the cause of adhesions in abdomen and the same results in intestinal obstruction. Further, it was found that cases like Exploratory Laparotomy and subsequent adhesive intestinal obstruction requires continuous treatment. As complainant did not discloses the history while purchasing the policy and as such, claim was not admissible even as per clause 5.8 of the policy. So, it is claimed that there is no deficiency in service or negligence on the part of OPs because claim was validly repudiated. No information about health was disclosed by the complainant to OPs agent namely Smt.Santosh Gupta. Each and every other averment of the complaint denied by claiming that through letter dated 28.2.2015, the complainant was called upon to submit the documents pertaining to exact duration of illness with complete medical and surgical history as well as previous treatment record, but same has not been submitted by the complainant. Admittedly, notice dated 8.5.2015 was sent by OPs.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C15 and thereafter, his counsel closed the evidence.

4.                On the other hand, Sh.Rajeev Abhi, Advocate for OPs tendered in evidence affidavits Ex.RA of Sh.Anil Kalia,  Senior Divisional Manager of OPs; Ex.RB of Sh.Suneet Chopra of M/s Raksha TPA Pvt. Ltd; Ex.RC of Sh.Santokh Singh, Insurance Agent and even tendered documents Ex.R1 to Ex.R7 and thereafter, closed the evidence.

5.                          Written arguments submitted by OPs alone. It is not submitted by the complainant. Oral arguments of both the parties addressed and were heard. Records gone through minutely. 

6.                Ex.C1 and Ex.C2 as well as Ex.R1 are the documents produced by both the parties to establish as if the Family Medicare Policy was purchased by the complainant initially for the period from 3.12.2012 to 2.12.2013 and then from 6.12.2013 to 5.12.2014. In Ex.C1, the previous policy number mentioned is the same as is policy number of Family Medicare Policy of Ex.C2. However, in Ex.C2, the previous policy number is not mentioned and as such, certainly, the medical claim in question for treatment of complainant from CMC & Hospital, Ludhiana during period from 23.9.2014 to 27.9.2014 was put forth in the 2^nd year of the policy.

7.                This treatment was got by the complainant from the said hospital on being diagnosed for sub acute intestinal obstruction, which was managed conservatively with I.V.fluids. All this is revealed by certificate Ex.C6 of Dr.Rohan Doke. In Ex.C6 itself, it is recorded that the complainant is not a known smoker or consumer of alcohol or other drugs. Copy of discharge summary Ex.C5 proves as if complainant remained admitted in CMC & Hospital, Ludhiana during period from 23.9.2014 to 27.9.2014 and he incurred expenses on treatment as revealed by Ex.C3. There is nothing in Ex.C3, Ex.C5, Ex.C9 and Ex.R11 to Ex.R14 or any other documents produced by the parties to establish that the complainant was having pre-existing illness of kind, for which, he got treatment in question from the CMC & Hospital, Ludhiana at the time of inception of the policy. Even Ops have not collected any material to prove that complainant was suffering from or was having history of ailment of kind, for which, he got the treatment in question. So, in view of this, contents of proposal form Ex.R2 cannot be termed as incorrect that the complainant was not suffering from any disease earlier.

8.       In Ex.R3 and Ex.R4, it is mentioned as if the ailment in question was pre-existing to the policy inception and that the complainant did not disclose the history of laparotomy in his proposal form, due to which, there is concealment of facts. From where these inferences drawn qua that nothing pointed out except that record sought through Ex.R5 to Ex.R10 has not been provided. Perusal of Ex.C8=R13 reveals that complainant merely complained of fever for 3 days and pain abdomen as well as vomiting for 2 days and that is why, on evaluation, he was diagnosed to be a case of adhesive sub acute intestinal obstruction. So,  these documents do not show as if the complainant himself was having knowledge of diagnosed ailment of sub acute intestinal obstruction earlier to his admission on 23.9.2014. As complainant himself was not aware of the diagnosed ailment earlier and as such, question of disclosure by him qua such ailment at the time of filing of the proposal form  does  not  arise.  No opinion of the expert obtained by OPs for showing that exploratory laparotomy was done prior to the admission of the complainant in CMC & Hospital, Ludhiana during the period from 23.9.2014 to 27.9.2014. Rather, in report Ex.R11, exploratory laparotomy is mentioned as status of final diagnosis. That status of exploratory laparotomy shown  for final diagnosis of the cause of sub acute intestinal obstruction.      The exploratory laparotomy may have been required during treatment from 23.9.2014 to 27.9.2014. However, conservative treatment was provided to the complainant without carrying on surgical operation is a fact borne not only from the contents of Ex.C8=Ex.R13, but even from the contents of Ex.R12=Ex.C6. Rather, contents of Ex.C6=Ex.R12 establishes as if conservative treatment with I.V.fluid was provided showing as if surgical operation was not performed, though final diagnosis status for carrying of laparotomy may be required         for exploration only. Even contents of Ex.C9=Ex.R14 establishes that conservative treatment was provided, which was non operational and as such, virtually exploratory laparotomy though contemplated in final diagnosis status, but the same was not carried out. Exploratory laparotomy is performed with the objective of obtaining information that is not available via clinical diagnostic methods. It is usually performed in patients with acute or unexplained  abdominal pain and occasionally for staging in patients with a malignancy. Due to increasing availability of sophisticated imaging modalities and other investigative techniques, the indications for and scope of exploratory laparotomy have shrunk over time. The increasing availability of laparoscopy as a minimally invasive means of inspecting the abdomen has further reduced the applications of exploratory laparotomy. When such sophisticated imaging technique is available, then even if the final status of exploratory laparotomy may have been diagnosed, despite that the same was not carried out is a fact borne from the contents of Ex.C9=Ex.R12. Rather, perusal of Ex.C5=Ex.R11 reveals that for carrying on investigations, abdominal ultrasound was performed during investigations for finding as if there was mild hepatomegaly. As the ultrasound abdominal test is sophisticated imaging modality goading the less need of exploratory laparotomy and as such, bare mention of exploratory laparotomy in final diagnosis status in Ex.R11=Ex.C5 not enough to establish that a large incision was made in the abdomen, particularly when the record do not establish so as discussed in detail above.

9.                As per law laid down in case titled as National Insurance Company Limited vs. Raj Narain-2008(1)CPJ-501(N.C.), if it is not proved that the complainant was having heart disease prior to taking of policy, but he felt chest pain within 3 days of taking of policy, then due to that alone repudiation of claim is not justified on the ground of suppression of pre-existing disease, particularly when the records of the pre-existing disease not produced. In case of Bajaj Allianz General Insurance Co.Ltd. vs. Kamal Kumar Rateria-III(2012)CPJ-599(N.C.), it has been held that it was obligatory on the part of insurance company to prove that medical condition of complainant, for which, claim has been preferred were pre-existing on the date of commencement of policy. As onus is on OPs/insurer to prove the medical condition or complication as pre-existing prior to the date of commencement of the policy, but OPs of this case failed to bring on record any material to prove that ailment in question was pre-existing on the date of commencement of policy and as such, repudiation of claim is not justified at all as per clause 4.1 of the policy.

10.              Even in case of New India Assurance Company Limited vs. Tarsem Chand-2005(1)CPC-230(State Consumer Disputes Redressal Commission, Union Territory, Chandigarh), it has been held that when insurance company failed to prove that claimant was suffering from pre-existing disease at the time of inception of the policy, then repudiation of the claim on bare allegation of suppression of disease is not justified. Ratio of these cases is fully applicable to the facts of the present case and as such, repudiation of claim due to suppression of material facts qua pre-existing illness or due to alleged pre-existing disease at the time of inception of the policy is not justified.

11.              In case tiled as National Insurance Company Limited vs. Rajan Kumar and another-IV(2011)CPJ-11(Haryana State Consumer Disputes Redressal Commission, Panchkula), it has been held that opinion of the doctor is not sufficient that disease existed prior to date of obtaining policy because insurance company has to prove that life assured was in full knowledge of disease having been suffered by her. In case, it is not proved, then the same cannot be treated as a case of suppression of facts or of fraud. Ratio of this case is fully applicable to the facts of the present case, particularly when no record of previous ailment of the complainant collected by the insurance company and nor produced.

12.              Though  Ex.R5, earlier three documents were required, but subsequently through letters Ex.R6 and Ex.R7, only two documents alone were required. Thereafter, through letter Ex.R8 of 10.12.2014 only one document namely treating doctor certificate mentioning history of SAIO and related  illness clearly specifying duration was required. However, thereafter through letter Ex.R10 previous treatment record even was required from the complainant without verifying as to whether actually the complainant underwent such treatment or not? Certificate Ex.C6 of concerned doctor there on record to show that complainant is not a case of known smoker or consumer of alcohol or other drugs and as such, this certificate sought through Ex.R5 to Ex.R7 virtually has been provided by the complainant. So, it is not a case, in which, complainant not co-operating in process of adjudication and settlement of the claim. Rather, the complainant submitted bill Ex.C3 along with cancelled cheque even and as such, repudiation of claim is unjustified.

13.              Certainly, the terms and conditions of policy to be construed strictly and nothing can be added or subtracted thereto as per law laid down in case Ind Swift Limited vs. New India Assurance Co.Ltd. and others-IV(2012)CPJ-148(N.C.); Usha Sharma vs. New India Assurance Co.Ltd.-I(2012)CPJ-448(N.C.); United India Insurance Co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.); Deokar Exports Pvt. Ltd. vs. New India Assurance Co.Ltd.-I(2009)CPJ-6(S.C.) and New India Assurance Co.Ltd vs. Panchsheel Jewellers-I(2013)CPJ-38(N.C.). Even if those terms and conditions contained in Ex.R1 taken into consideration, despite that case does not fall under the exclusionary clauses of 4.1 and 5.8 because OPs failed to prove that the complainant was having pre-existing condition or ailment at the time of inception of the policy or that he suppressed the material facts of earlier ailment.

14.              Benefit from clauses 5.4 and 5.5 of Ex.R1 cannot be availed by the counsel for OPs because repudiation of claim is not on account of non submission of the original bills/receipts of the treatment or of record of the treatment with TPA. Rather, the same as per Ex.C13 was due to application of clauses 4.1 and 5.8 of policy. Qua non disclosure of the history of ailment or on account of illness being pre-existing to the policy inception, which are not the facts borne from the records actually.

15.              In case titled as Life Insurance Corporation of India vs. Neelam Sharma-IV(2004)CPJ-658(N.C.), it was found that answers given by insured in proposal form were untrue to his knowledge, but that is not in the position in this case because here complainant suffered from fever and abdominal pain just 3 days prior to the admission in CMC & Hospital, Ludhiana and as such, complainant not proved to have disclosed the untrue facts at all. After going through Para no.10 of this reported case, it is made out that from the material produced on record, it was found as if the insured remained admitted in hospital due to suffering from Amoebic Liver Abscess and even he remained on medical leave prior to the inception of the policy. That is not in the position shown in this case and as such, benefit from this case is not available to counsel for the OPs.  In case of Paramjit Kaur vs. Life Insurance Corporation of India and another –IV(2014)CPJ-132(N.C.), it was found as if insurance company able to prove about the various pre-existing ailments of the insured prior to taking of the insurance policy. Likewise, in case of Diwan Surender Pal vs. Oriental Insurance Co.Ltd and another-I(2009)CPJ-117(N.C.), it was found that medical history given by the complainant himself to the treating doctor disclosed as if the insured was having pre-existing ailment, but none of those position existed in the case before us and as such, benefit from above cited cases is not available to the counsel for the OPs. Even in case of Oriental Insurance Company Limited vs. Shanti Parshad Goyal and others-I(2013)CPJ-152(Haryana State Consumer Disputes Redresssal Commission, Panchkula), it was found that insured was suffering from Hypertension since from 1988, but despite that while obtaining policy in 2001, he did not disclose this fact in the proposal form and that is why, it was found to be a case of concealment of material facts. In case of United India Insurance Co.Ltd. vs. Kanta Gupta-II(2012)CPJ-191(N.C.), the insured was found to be a patient of DM and CRF for the last 15 years as mentioned in the discharge certificate of hospital and even expert evidence was produced for proving deliberate suppression of some vital information about status of health of the insured. That evidence is not produced by the insurer in the case before us. Even the medical history of pre-existing ailment available with insurance company proved the pre-existing status of ailment of insured in case of Shakuntala R.Khosla vs. Oriental Insurance Co.Ltd.-II(2012)CPJ-78(Maharashtra State Consumer Disputes Redressal Commission, Mumbai). But that record of medical history not produced in the file of this case by OP and as such, benefit from ratio of none of these above cited cases can be availed by the counsel for the OPs.

16.              In case titled as Avneet G.Singh vs. ICICI Lombard General Insurance Company Limited and others-2014(2)CLT-374(CHD), it has been held that when a cashless health insurance policy purchased by complainant and he lodged claim by providing the available medical record with him, then claim of insurance cannot be repudiated merely because of non supply of some more record because the insurance company itself can collect medical record from hospital concerned.

17.              As the insurance company itself can check the hospital records and complainant has produced on record bill Ex.C3 along with other documents of treatment and those are also produced on record by the OPs as discussed in detail  above  and  as  such, repudiation of claim is unjustified, particularly when proof of pre-existing ailment and suppression of some deliberate facts by the complainant is not proved by the insurance company in discharge of the onus placed on it. So, deficiency in service on the part of OPs is there.

18.              Therefore, as a sequel of the above discussion, complaint allowed in terms that OPs will reconsider the claim of the complainant and settle or adjudicate the same through speaking order after affording of due opportunity of hearing to the complainant, within 90 days from the date of receipt of copy of this order. Even OPs will pay Rs.5000/- as compensation for mental harassment and suffering of the complainant. Litigation expenses of Rs.5000/- more allowed in favour of the complainant and against OPs. Payment of amount of compensation for mental harassment and litigation expenses be made within 30 days from the date of receipt of copy of this order. Copy of this order be made available to the parties free of costs as per rules.

19.                        File be indexed and consigned to record room.

 

 

  (Babita)                                    (G.K.Dhir)

                     Member                                       President

Announced in Open Forum

Dated:03.06.2016

Gurpreet Sharma.