CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.976/2008
SMT. MADHU HASWANI
W/O SH. N.D. HASWANI
R/O I-34, GF, KIRTI NAGAR,
NEW DELHI
…………. COMPLAINANT
Vs.
- M/S UNITED INDIA ASSURANCE CO. LTD.,
HEAD OFFICE AT:-
74 WHITON ROAD,
CHENNAI-600014
- M/S RAKSHA TPA PVT. LTD.,
2ND FLOOR, YMCA COMPOUND,
13 RANA PRATAP MARG,
LUCKNOW-226001
ALSO AT:-
M/S RAKSHA TPA PVT. LTD.,
PLOT NO.202, 1ST FLOOR,
OKHLA INDUSTRIAL AREA, PHASE-III,
NEW DELHI-110020
…………..RESPONDENTS
Date of Order: 19.11.2015
O R D E R
A.S. Yadav – President
Complainant is a consumer of Mediclaim Policy having ID No.UIC8618845 being a joint policy holder with her husband Sh. N.D. Haswani vide Policy No.08 102/48/07/9700000962 for a sum of Rs.3,00,000/- only and the same was valid for the period 08.3.2008 to 07.3.2008. Prior to this the complainant was covered under the Mediclaim Policy which had been renewed time to time. Thereafter the complainant was renewing the same every year and the last policy is the policy under reference issued by OP. OP-1 as well as earlier insurance company i.e. M/s Bajaj Alliance Co. Ltd. are both covering the General Insurance of the insurers hence for all purposes and intent the complainant was insured for Mediclaim since the last 4-5 years till date.
It is further stated that OP-1 is the insurance provider to the general public and cater to the General Insurance/mediclaim needs and OP-2 are the TPA(third party agents) working for and on behalf of OP-1and both are jointly liable for the acts of omission and commission and liabilities arising out of such acts committed by them.
It is further stated that complainant had availed for Mediclaim Policy to safeguard her health needs and OP-1 had given the contract to OP-2 being the authorized TPA service provider.
It is further stated that at the time of giving the policy the OP-1 had assured cashless service but when the complainant needed the services, OPs failed to provide the services. Complainant was diagnosed for knee replacement. As OP-2 did not provide the cashless treatment to complainant as assured, complainant had to go for surgery at “Greens Medical Centre” and was finally discharged on 03.7.2008 and had to spend a sum of Rs.1,81,762/- paid by the husband/Co policy holder of complainant for her treatment even though having a policy cover for such eventuality already standing in the name of husband of complainant for self and the complainant. Complainant lodged/preferred a claim bearing No.54540809262208 with OP-2 for refund of above said amount of Rs.181762/- and all the original documents were submitted to OP-2. The claim was rejected/repudiated by OPs on the ground that complainant was already suffering from a pre-existing disease and she had concealed it in the proposal form and the treating doctor has stated that the complainant was suffering from pain in both knees for one year. It is stated that this allegation for repudiation of the rightful claim of complainant is false and fabricated on the part of OP-2. The preauthorization form clearly states that in the column of detection of disease “1 month” nowhere it is stated that the detection of disease is 1 year old.
It is further stated that complainant was insured not just few days prior to hospitalisation but was duly insured under the Mediclaim Policy for the last about so many years. This fact was well within the knowledge of the OPs as is apparent from the policy issued by OP-1 for the relevant period of 08.3.08 to 07.3.08 wherein the earlier policy of complainant has been stated in very clear and unequivocal terms. Hence OPs had no justification to repudiate the claim of complainant on this flimsy ground.
It is further stated that complainant never concealed any fact from the OPs much less any material fact. Rather complainant informed the OPs regarding the earlier mediclaim policy provider and submitted a no claim bonus issued by M/s Bajaj Alliance Co. Ltd.
The previous mediclaim service provider stated that no claim has been taken by the policy holder for the period of policy preceding the policy with OP-1 through their agent and Third party agent M/s Raksha TPA. Had the complainant been aware of the fact that she was suffering from knee problem at that time she would have got herself treated at that point of time only with the earlier policy.
Complainant visited the office of OP-2 requesting them to pay the claim amount of Rs.1,81,762/- alongwith interest @ 24% p.a.. However when complainant did not hear anything from OPs, she sent a legal notice dated 29.9.08 but OPs failed to even provide any reply. OPs are guilty of deficiency in service as they have failed to pay the claim amount of complainant. It is prayed that OPs be directed to pay a sum of Rs.1,81,762/- alongwith interest @ 24% p.a. and also to pay compensation of Rs.10 lakh and Rs.11,000/- for litigation expenses.
OP-1 in reply has taken the plea that OP was justified in repudiating the claim of complainant as she had made some material mis-statements in the Claim Form. It is stated that complaint is barred under clause 4(3) of Universal Mediclaim Policy. As per Rule 4(4.3) of the individual Mediclaim Policy, stated that:-
“Exclusion
The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:-
4.3 : during the first 2 years of the operation of the policy, the expenses on treatment of disease such as Cataract, Benign, Prostatic, hyperthrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Congenital internal disease, Fistula in anus, piles, sinusitis and related disorders, Gall Bladder Stone removal, Gout & Rheumatism, Calculus Diseases, Joint Replacement due to degenerative condition and age related Osteoarthritis & Osteoporosis are not payable. If these disease (other than congenital internal disease), are pre existing at the time of proposal they will not be covered even during subsequent period of renewal. If the insured is aware of the existence of congenial internal disease before inception of policy, the same will be treated as pre existing.”
It is further stated that present complaint be dismissed on the ground that there is breach of condition of the Mediclaim policy as complainant has not complied with the terms and conditions of the contract of insurance. Further complainant has tried to mislead this Forum by submitting false facts to extract the public funds of which the OP is the trustee. There is no deficiency on the part of OP.
We have heard Ld. Counsel for the parties and carefully perused the record.
The claim has not been repudiated in terms of clause 4.3 of Universal Mediclaim Policy rather the same has been repudiated on the ground that treating doctor mentioned in pre-authorisation form that patient is suffering from pain in both knee for one year whereas “you did not disclose the same in proposal form which was filed by you on 07.03.2008”. So the claim was rejected on the ground of pre-existing disease which was not disclosed at the time of taking of policy. It is nowhere mentioned in the entire WS that the claim was repudiated on the ground of pre-existing disease. In fact, the OP has not mentioned about the ground of repudiation in the entire WS and only ground of repudiation is clause 4(3) as reproduced above.
It is settled law that onus is on OP to prove that the insured was suffering from pre-existing disease and that fact had been concealed by the insured at the time of taking of policy. OP has not placed any document on the record to show that the complainant was suffering form this disease one year prior to the taking of the policy. In fact it is wrongly stated that the ground of repudiation is that treating doctor mentioned in pre-authorisation form that patient is suffering from pain in both knee for one year. The complainant has placed on record the pre-authorisation form which clearly specifies that the patient is suffering from pain in both the knees for the last one month meaning thereby that when the policy was taken the complainant was not suffering from any such problem. As already stated it is nowhere mentioned in the WS that complainant was suffering from knee problem for the last one year prior to the taking of treatment or of policy. The policy was valid from 08.3.08 to 7.3.09 whereas the complainant was admitted in the hospital on 21.6.08 and in the authorisation form it is specifically stated that for the last one month complainant was suffering from the knee problem. It is significant to note that complainant has specifically stated in para-7 of her complaint that the claim was repudiated by OP on the ground that complainant was suffering from pre-existing disease and she had concealed in the proposal form and the treating doctor has stated that the complainant was suffering from pain in both knees for one year, this allegation for repudiation of the rightful claim of complainant is false and fabricated on the part of OP-2. The pre-authorisation form clearly stated that in column of detection of disease “1 month” nowhere it is stated that the detection of disease is one year old. This fact is not denied by OP in the reply.
It is further stated in para-10 of the complaint that the previous mediclaim service provider stated that no claim has been taken by the policy holder for the period of policy preceding the policy with OP-1 through their agent and Third Party Agent M/s Raksha TPA. Hence there is no suppression or concealment of any fact much less any material fact by complainant. Had the complainant been aware of the fact that she was suffering from knee problem at that time she would have got herself treated at that point of time only with the earlier policy. It is submitted that a person may be suffering from some disease without actually knowing about it. In most of the cases the person comes to know about the disease only at the terminal stages for example in case of cancer most of the patients are unaware that they have any form of cancer and as such the disease goes undetected for a long period of time. It is only when the disease is at a very advance stage that the patient comes to know about it. Hence to say that the complainant was already suffering from a pre-existing disease as the same cannot develop within few days for the date of issuance of the policy or there has been any concealment of facts by the complainant is nothing but a figment of imagination of OPs. Again this fact is not denied in the reply. The reply filed by OP is very evasive. It is significant to not that before filing of the complaint, a legal notice was served on the OP wherein the complainant has specifically stated that M/s Bajaj Alliance Co. Ltd. issued a certificate that complainant has taken no claim from them for the period prior to taking mediclaim policy from OP and based upon that certificate, OP issued a mediclaim policy in question and provided no claim bonus of 5%. This is not denied by OP.
Now admitted position is that the complainant had been taking mediclaim policy for the last so many years. Earlier she has taken the policy from M/s Bajaj Alliance Co. Ltd. and during the relevant period she had taken the policy from OP and OP has given no claim bonus of 5% to complainant. Had the complainant been aware of knee problem she would have got operated earlier as she was also having mediclaim policy for a pretty long period. Here it is useful to refer to case of Tarlok Chand Khanna Vs United Insurance Co. Ltd. 2012(1) CPJ(84) – in that case the insured had taken the policy and she underwent a surgery. The claim was repudiated on the ground that she was having pre existing disease where Hon’ble National Commission in para-6 held as under:-
“In fact, the onus to prove that she had a pre-existing disease was on the Respondent who failed to file any expert medical or credible evidence in support of its case. Further, the deceased had been taking the mediclaim insurance policy from the Respondent right from 1996 and she had also, as per the practice, been examined by the doctor of the Respondent/Insurance Company who was nowhere recorded that she had any medical problems relating to the knees. Counsel for petitioner further cited a judgment of this Commission in National Insurance Co. Ltd., v. Raj Narain 208 1CPJ 501, wherein the Commissioner had inter alia, observed as follows:-
Most of the people are totally unaware f the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to dies and disease are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this so every person should do medical studies and further not take any insurance policy.
In view of the above facts, the Fora below erred in saying that claim was rightly repudiated.”
It is useful to refer to case of Shano Wadhwan Vs National Insurance Co. Ltd. 2003(2) CPJ 198. That was also relating to knee replacement. It is was held by the Hon’ble National Commission in middle of para 7:-
“whereas according to the case summary and discharge records dated 16.7.1996, the appellant was suffering from pain and heaviness in the neck, full back and lower limbs off and on since long time and suffering from Scoliosis since 4 years but pain and swelling knees only since last 4-5 months. The mediclaim cover became operational as on 2.4.1994. Therefore, the ailment of knee joint, swelling and pain for which the appellant underwent treatment cannot be termed as pre-existing.”
It is also useful to refer to case of Parveen Damani Vs Oriental Insurane Co. Ltd. 2006(4) CPJ 189 where in para-18 and 19 it was held by Hon’ble National Commission that:-
“(18) The District Forum also relied on Clause 4.1 of the policy which states that it was not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.
(19) If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers form symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a malafide manner to repudiate all the claims. 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 them. Hindsight everyone relies much alter that he should have known from some symptoms. If this so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain etc. prior to 11.8.2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease.”
Similar view was taken by Hon’ble National Commission in case of National Insurance Co. Ltd. Vs Raj Narain 2008(1) CPJ 501.
OP has failed to prove that complainant was suffering from pre-existing disease and this fact was concealed by complainant at the time of taking of policy.
So far as repudiation on the ground of clause 4.3 is concerned that the insurance company is not liable to pay any amount for knee replacement within two years of the taking of policy the same is also without basis as first of all the repudiation was not made as per this clause as discussed earlier. Assuming for the sake of argument that in terms of clause 4.3 of medicalim policy the complainant is not entitled for claim even then the claim is maintainable as it is not for the first time that complainant has taken this medicalim policy. Complainant has specifically stated that she has been taking mediclaim from the last so many years and she has submitted a certificate to OP from M/s Bajaj Alliance Co. Ltd. they have stated that complainant has not taken any claim during the policy period and on that basis of that she was given a no claim bonus of 5%. Since the benefit of no claim bonus of 5% was given to the complainant, it means it is continuation of earlier policy and clause 4.3 is not attracted.
Even otherwise OP has failed to prove that the aforesaid clause was ever brought to the notice of complainant. Insurance is a contract between the parties and OP is bound to prove that this contract was duly signed by the complainant. The terms and conditions of policy are part of the contract. The insurance company was under legal obligation to get terms and condition also signed by the insured. OP has not placed any document on record to show that the terms an conditions of policy were brought to the notice of complainant. Repudiation of claim was totally unjustifiable.
The complainant is entitled for a sum of Rs.1,81,762/- alongwith interest @ 10% p.a. from the date of filing of the complainant and also entitled for compensation of Rs.10,000/-.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
