Complainant Smt.Sarbdeep Kaur through the present complaint filed U/s 12 of the Consumer Protection Act, 1986 (hereinafter for short, ‘the Act’) has prayed that opposite parties may kindly be directed to make the payment of insurance claim amounting to Rs.5,00,000/- along with compensation of Rs.1,00,000/- with interest due to physical harassment and mental agony suffered by the complainant. Complainant has further claimed litigation expenses on account mental as well as physical harassment, in the interest of justice. Complainant also claimed any other relief to which she is legally and equitably entitled.
2. The case of the complainant in brief is that she and her husband obtained Family Medicare Policy from the opposite parties bearing policy No.2002022815P112390648 which was valid from 15.01.2016 to 14.01.2017 and a sum of Rs.17,713/- was paid to the opposite parties as premium and as per this policy complainant was insured for the sum of Rs.2 Lacs and on the same day complainant along with her husband also obtained Super Top Up Medicare Policy vide policy No.2002022815P112390330 and a sum of Rs.7,328/- was paid as premium on account of this policy and as such complainant was insured for the sum of Rs.5 Lacs in all. It was pleaded that before issuing the above said policies various medical tests were conducted by the opposite parties and after accepting the medical reports, the complainant and her husband was insured by way of the above said policies and as per the terms and conditions above said policy the opposite parties were liable to pay Rs.5 Lacs to the insured in case of suffering her any illness or disease or injury suffered through any accident. It was pleaded that unfortunately complainant fell ill and hospitalized and as per the medical advise her major operation was conducted from Paras Hospital, C-I Sushant Lok Phase-I, Sector 43, Gurgaon (Haryana) and neuro surgery was also conducted to cure the illness and due to this she remained admitted there from 28.02.2016 to 10.03.2016 and total bill amounting to Rs.6,44,449.01 Paise was issued by the said hospital which was on account of Room Charges, Radiology, Neuro Suregery, OT Charges, Blood Bank, Laboratory, Anaeshthesisa, Cardiology, Miscellaneous services, Physiotherapy, LAB (Outsource), IP Consultation, Medical Store, Medical Store (Return), OT Store, Sub Store (OT) and after discount a sum of Rs.5,89,768/- was paid by the complainant to above said hospital as medical bills and complainant had even spent a lot of money on account of Post Care Medical expenses. Complainant had also spent much more amount on her treatment but she only claimed a sum of Rs.5 Lacs from the opposite parties as she was insured by the opposite parties to this extent only. It was further pleaded that after discharge from the hospital complainant lodged the insurance claim with the opposite parties but the same had been disallowed by the opposite parties on a flimsy ground that “Pre existing disorders not covered under the policy” but there was no pre existing disorder and opposite parties disallowed the claim of the complainant illegally and without any valid reason. It was also pleaded that opposite parties disallowed the claim of the complainant vide letter dated 16.04.2016 and due to this illegal act of the opposite parties complainant had suffered physically as well as mentally, hence this complaint. `
3. Notice of the complaint was issued to the opposite parties who has appeared through their counsel and filed the written reply by taking preliminary objections that as per the terms and conditions clause 4.2 the claim of the complainant is not payable as insured suffered from brain tumor and spinal tumor and both the diseases were pre existing and as per discharge summary issued by the Paras Hospital the patient had been suffering from numbness below thigh in bilateral limb since 2014 where as the policy was taken on 15 January, 2016. It was stated that complainant was admitted in the said hospital on 28.02.2016 just after 13 days of the commencement of the policy. It was stated that the claim was repudiated on the recommendations of Vipul Medi Corp TPA Pvt. Ltd. who are duly approved service providers by the Insurance Regulatory & Development Authority of India (IRDA) who is competent to accept or reject the claims on merits within the provisions of policy of insurance and as such said service provider is a necessary party in this case but the same has not been made as a party in this case and as such complaint is liable to be dismissed. On merits, it was stated that the claim of the complainant was repudiated as per the terms and conditions of the policy. All other averments made in the complaint have denied and lastly prayed for dismissal of the complaint with costs.
4. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C1 along with documents Ex.C2 to Ex.C4 and closed the evidence on behalf of complainant.
Counsel for the opposite parties had tendered into evidence affidavit of Sh.Chatter Singh Thakur Sr. D.M. Ex.OP-1 along with documents Ex.OP-2 to Ex.OP-6 and closed the evidence on behalf of opposite parties.
6. We analytically observe with the judicial precision and find that the OP insurers have arbitrarily repudiated (vide Ex.OP2/Ex.OP3) the complainant’s insurance claim for Rs.5.00 Lac so as to score out her medical hospitalization Bills amounting to Rs.6.00 Lac (approximately) for the reason that the insured patient was not covered for ‘pre-existing disorders’ as per the exclusion clause 4.2 of the terms of the applicable policy. Somehow, the opposite party insurers here have failed to prove its allegations to justify its impugned repudiation through some cogent evidence necessary to be produced during the present proceedings and as such these amount to ‘bald’ statements, only.
7. We find that the purchase and validity of the related policy have been duly admitted along with the factum of hospitalization and the medical treatment expenses incurred to the complainant. The complainant has duly proved the all above through presentation of her evidentiary documents exhibited here as Ex.C1 to Ex.C4. The OP insurers in turn have produced its affidavit Ex.OP1 by its Sr. Div. Manager duly deposing that the treating hospital discharge summary mentions that the patient had both brain and spinal tumors and had been suffering from numbness below thigh in bilateral limb since 2014 and thus her hospitalization and subsequent surgery had been to treat a pre-existing disease hit by clause 4.1 and 4.2 of the terms of the related policy. Somehow, the OP insurers have failed to produce the treating doctor’s affidavit, discharge summary, treatment history and surgery schedule etc to prove their allegation of pre-existing disease/ ailment etc for reasons best known to them alone and that addresses its repudiation as arbitrary, unethical and for the sake of some collateral considerations. The documents exhibited here as Ex.OP2, Ex.OP3 and Ex.OP4 are the related OP repudiations whereas Ex.OP5 and Ex.OP6 are the clinical test reports of 16.01.2016 and 13/14.06.2015 but do not indicate presence of any brain/spinal tumor as per the alleged pre-existing disease/ailment etc. The OP insurers have based their above repudiation decision solely on presumptions and hearsay evidences and the same are not admissible in judicial adjudicatory. Further, there has been no documentary evidence available and/or produced on the records of the present proceedings proving the presence/knowledge/symptoms of the ‘ailment’ (prior to the date of policy) for the medical treatment of which the present insurance mediclaim stood preferred.
8. Thus, the alleged misrepresentation/concealment/non-disclosure of material facts etc do not stand proved. In such like repudiations the o. n. p. (onus of proof) always lay heavily upon the insurers but here they have miserably failed to legally discharge the same successfully. We are strengthened in our above proposition by virtue of the valuable comments as made out by the honorable Punjab State Commission in the FA # 537 of 2008 titled: LIC of India vs. Priya Sharma & ors., as: “…. in this case, there is no evidence on record to prove that the deceased life assured was suffering from any pre-existing disease at the time of purchasing the policy. …. There is no evidence to prove that the deceased was ever admitted or took any treatment from any hospital or the doctor regarding the alleged pre-existing disease. …”. The honorable National Consumer Commission has further elaborated the legal proposition in RP # 218 of 2008 titled United India Insurance Co. Ltd., vs. Anumolu Rama Krishan as: “7… Even if Respondent was suffering from these diseases which admittedly do not occur overnight, it is both possible and plausible that he was unaware of it since these can be ‘silent diseases’ and a person suffering from them may not even be aware until the condition aggravates and overt symptoms appear….”. Even, the OP insurer’s refusal to ‘pre-authorizations’ requests by the treating hospitals are not justified and the subsequent demands of ‘non-descript’ and ‘non-exist’ imaginary documents are all the more un-sustainable. We also find that the mediclaim put forth by the complainant have been kept illogically deferred awaiting ‘settlement’ for collateral but arbitrary reasons. Even, the expert professional opinion pertaining to pre-existing disease cannot be taken as an evidence of its ‘non-disclosure/suppression’ by the insured since she may not be ‘herself’ aware of the disease present in its latent hibernating state.
9. In the light of the all above, we are of the considered opinion that the OP insurers have blatantly bruised the consumer rights of the present complainant by employing ‘unfair trade practice’ amounting to ‘deficiency in service’ (on their part) and that lines them up for an adverse statutory award under the applicable Consumer Protection Act’ 1986.
10. We, therefore, partly allow the present complaint and thus ORDER the OP insurers to settle the impugned ‘insurance claim’ for the full insured amount of Rs.5.0 Lac as per the governing ‘terms’ of the applicable Health Insurance Policy (to its full benefits) strictly in accordance with the IRDA guidelines on ‘settlement of claims’ favoring the complainant besides to pay her Rs.5,000/- as cost and compensation within 30 days of receipt of the copy of the present orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of the orders till actual payment.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
FEB. 20, 2017 Member.
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