Surender Kumar,
122, Triveni Apptt.,
West Enclave, Pitampura,
New Delhi. …….. Complainant
VERSUS
- United India Insurance Co. Ltd.,
Divisional Office,
Ansari Road, Darya Ganj,
New Delhi.
Also at:-
Plot No.8, 3rd Floor,
Retail Business Centre,
Nagal Rai, New Delhi.
- HDFC Health Plus Credit Card,
Aditya JR Towers, 3rd Floor,
Road No.2, Banjara Hills,
Hyderabad. ..…. Opposite Parties
O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is a Govt. employee and had purchased a Health Plus Credit Card from O.P-2. It is alleged that the O.P-2 in turn gave a facility of Health Insurance by obtaining a mediclaim policy from O.P-1 for all their card holders and the complainant was covered under the said policy / scheme which covers the complainant for a sum insured of Rs.50,000/-. It is further alleged that the O.P-1 failed to give any policy of insurance and have not given any terms and conditions pertaining to the said policy. It is alleged that complainant was feeling uneasy and was rushed to the Saroj Hospital & Heart Institute on 03.11.2006 and as per the hospital diagnosis the complainant was suffering from NIDM Cdka c FOCAL SEIZURE RT. SIDE OF BODY. The complainant was advised admission as his conditions was serious and was kept upto 09.11.2006 as per discharge summary of the hospital. It is further alleged that complainant incurred a total sum of Rs.43,715/-, the bills raised by the said Hospital for his treatment. It is alleged that intimation about the admission was lodged immediately by the complainant with the O.P-1. It is further alleged that the complainant submitted all the original medical Hospital bills etc. with the O.P-1 to reimbursement of the said amount which was paid by the complainant for his treatment. It is alleged that O.Ps have not given any claim to the complainant. It is further alleged that to the utter surprise of the complainant a letter dated 28.11.2006 was received from the O.P-2 whereby the complainant was informed that the claim has been found inadmissible “As per our medical opinion the present hospitalization is for the management of an ailment, which is related to a pre-existing condition” per the terms and conditions of the policy. It is further alleged that complainant orally requested the O.Ps to reimburse the above said amount but of no avail. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.43,715.90 with interest @ 24% p.a. and also to pay cost and compensation as claimed.
2. O.P-1 appeared and filed its written statement. In its written statement O.P-1 has not disputed that complainant had taken policy referred to above. It is alleged that complainant was diagnosed as a case of NIDDM (Non-Insulin Dependent Diabetes Mellitus) with DKA (Diabetic Keto Acidosis) with Focal Seizures with Alcohol withdrawal. It is further alleged that as per contents of the discharge summary of the hospital the complainant is a known case of Diabetes Mellitus (DM) since 5 years on regular treatment prior to the commencement of the policy. It is alleged that likewise prior to the inception of the policy the complainant is also a known case of COPD (Chronic Obstructive Pulmonary Disease) since 2 years as per the history mentioned in the discharge summary. It is further alleged that as per clause 4.1 of the Standard Mediclaim Policy read with the opinion of the medical team of TPA appointed by the O.P-1, the present hospitalization of the complainant is for management of an ailment which related to a pre-existing conditions hence the present claim filed by the complainant is not payable. It is alleged that as per records the mediclaim policy in the case commenced from 05.10.2006 and the date of admission of the complainant in the said hospital is 03.11.2006 i.e. within 30 days from the commencement of the policy and as per clause 4.2 of the Standard Mediclaim Policy treatment for any ailment arising within 30 days of the policy inception is not covered under the policy. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit affirming the facts alleged in the complaint. On the other hand Shri Satish Sharma, Deputy Manager has filed affidavit in evidence on behalf of O.P-1 testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submissions of the Ld. Counsels for the parties.
5. The main controversy existing in the present case is to whether the repudiation of the claim filed by the complainant on the basis of pre-existing illness was justified or not. The O.P repudiated the claim by stating that as per discharge summary of the hospital the complainant was known case of Diabetes Mellitus (DM) for the last 5 years on regular treatment prior to the commencement of the policy, similarly, complainant also a known case of COPD (Chronic Obstructive Pulmonary Disease) since 2 years. The insurance company while having recourse to clause 4.1 and 4.2 rejected the claim clause 4.1 and 4.2 are reproduced below:
“All disease/ injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian insurance companies shall be taken, provided the renewals have been continuous and without any break.”
“Any disease other than those stated in clause 4.3, contracted by the insured person during the first 30 days from the commencement date of the policy. This condition 4.2 shall no however, apply in case of the insured person having been covered under this scheme or Group Insurance Scheme with any of the Indian Insurance companies for a continuous period of preceding 12 months without any break.”
The counsel for insurance also argued that insurance company has categorically mentioned on the first page of the policy that the special exclusion clause will be applicable in case of pre-existing disease illness and maternity benefits. Therefore, complainant cannot be said to be unaware of the exclusion clause. Counsel for the complainant on the other hand vehemently stressed that by merely writing exclusion of pre-existing disease in the policy will not resolve the insurance company of its duty to reimburse the medical claim of the complainant. He further argued that admittedly the terms and conditions including the clause 4.1 and 4.2 were never furnished to him and on one fine morning the insurance cannot be permitted to press into service said terms and conditions at its whims and fancies. He further argued that the mention of the pre-existing disease in the discharge summary will not be of any consequence because it is the duty of the insurance company to medically prove the pre-existing disease of the complainant. Moreover, the insurance company has not placed on record the proposal form filled in by the complainant at the time of execution of the policy which could have thrown some light on the issue as to whether the illness suffered by the complainant was a pre-existing disease.
6. Now the question arises as to whether in view of the aforesaid submissions made by the counsel for the parties the repudiation of claim of the complainant was warranted or not. Needless to say that law now stands settled that insurance company cannot take benefit of terms and conditions unless the same were duly furnished to the complainant. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. In another case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. So far as the pre-existing disease is concerned the insurance company is duty bound to establish that there was active concealment of material facts by the complainant as to his previous ailment at the time of taking the policy. It is also stands that in case the insurance company takes the plea of pre-existing disease, the insurance company shall medical evidence in respect of complainant having taken treatment for any pre-existing disease. Now neither any medical evidence has been led as to pre-existing disease nor proposal form has been placed on record by the insurance. In case titled III (2012) CPJ 322(NC) NIC Vs. Girin R. Shah the court held as under:- Consumer Protection Act, 1986 – Sections 2(I)(g), 21(b) – Insurance (Mediclaim) – Abscess inside the anus developed- Surgery performed – Death of insured – Suppression of pre-existing disease alleged – Claim repudiated – Alleged deficiency in service – District Forum dismissed complaint – State Commission allowed appeal – Hence revision – Insurance Co. failed to establish link between any pre-existing disease and the abscess for which insured was operated - State Commission rightly held that condition No.4.1 of insurance policy document could not be applied for rejecting the claim of expenses for the treatment – Deficiency in service on part of Insurance Company proved – Compensation awarded. In Aviva Life Insurance Claim Department Vs Sharanjeet Kaur IV (2014) CPJ 124 (PUNJ), death-claim was repudiated on ground of suppression of pre-existing disease. The court held that hypertension is a lifestyle disease, easily controllable with conservative medicine. Insured not deliberately concealed material fact, repudiation was held unjustified. Insurer cannot repudiate the contract unless the fact is actually material. Insurer can avoid policy only by proving that the statement is false, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone.
7. Therefore, in the light of foregoing reasons and circumstances, we are of the opinion that the repudiation of claim by O.P is totally un-warranted and proceeded of flimsy and frivolous grounds hence deficiency in service. We award a sum of Rs.47,790.15 with interest @ 6% from the date institution of the complaint till payment, with further award of Rs.10,000/- towards harassment, mental agony, loss of time which will also include litigation expenses.
Copy of this order be sent to the parties as per rules.
Announced this 13th day of May, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
