BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.195 of 2015

Date of Instt. 11.05.2015

Date of Decision :09.11.2015

Kewal Kumar son of Kartar Chand, R/o 286, Guru Amar Dass Nagar, Near Verka Milk Plant, Bye Pass, Jalandhar.

..........Complainant Versus

1. Universal SOMPO General Insurance Co.Ltd., 127, Amdheri Durla Road, Andheri East, Mumbai-40058 through its General Manager.

2. Kamaljit Singh Authorized Agent, PUDA Complex, Opp.Tehsil Complex, Universal SOMPO General Insurance Co.Ltd., Jalandhar Branch.

3. Dr.Jashneev Kapoor, Kapoor Bone & Child Care Hospital, Phatankot Bye Pass, Jalandhar.

.........Opposite parties.

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Gurinder Singh Adv., counsel for complainant.

Sh.Vikas Gupta Adv., counsel for OPs No.1 & 3.

Opposite party No.2 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant is a senior citizen and he retired as an engineer from Punjab State Electricity Board, Jalandhar, in the year 2013. The opposite parties No.1 & 2 approached the complainant regarding Spouse Health Insurance Policy of Universal SOMPO General Insurance Company Limited and described the policy benefits to the complainant and assured that the company provides best services and medical facilities anywhere in India. The opposite party No.2 as authorized agent assured the complainant that above said company is having tie-ups with the 90% hospitals of Jalandhar and also convinced the complainant that if he avails their services and medical aids the whole Spouse Health Insurance will be cashless. After the deliberate efforts of opposite party No.2 on behalf of opposite party No.1, the complainant agreed to taking policy. At that time of taking policy, the opposite party No.2 took all necessary records, history of the complainant in the year 2013. After that complainant had Spouse Health Insurance Policy i.e cashless base. The complainant agreed and paid the premium for health insurance policy of Rs.9970/- in the year of 2013 i.e premium amount as per the policy norms and the complainant is regularly paying the premium. On 11.2.2015, the complainant suffered from High B.P and Nerve Stiffness. Dr.Mandeep Singh after diagnose referred the complainant to Dr.Jashneev Kapoor i.e opposite party No.3. Thereafter at Kapoor Hospital, Dr.Jashneev Kapoor i.e opposite party No.2 and Dr.Mandeep Singh checked the complainant and found High B.P and Nerve Stiffness and Glycemia. Doctor said it is severe problem, he must be admitted as soon as possible and also said that his nerves have been blocked at some points. On 11.2.2015 the complainant was admitted in Kapoor Bone and Child Care Hospital and apprised the opposite party No.3 about the Spouse Health Insurance Policy i.e cashless base by universal SOMPO General Insurance Co.Ltd, vide policy No.2817/52943087/01/000. After inspecting the policy, the opposite party No.3 affirmed that they are empaneled with universal SOMPO Insurance Co.Ltd having its office at PUDA Complex, Opp.Tehsil Complex, Jalandhar and the disease from which the complainant was suffering, was covered in the insurance policy. On 12.2.2015 the opposite party No.3 took policy card No.100021300 33171A and other policy documents and further asked the opposite party No.3 to fill the cashless request form after discussing the policy with the other doctors (claim No.100021507977) under the policy No.2817/52943087/ 01/000. On 13.2.2015 the opposite party No.3 conveyed the complainant that the cashless request form (Claim No.100021507977 under the policy No.2817/52943087/01/000) dated 12.2.2015 with the remarks for treatment of patient Kewal Kumar aged 21 years Male, Diagnosis case of Hyper Glycemia and past history Diabetes since 2012 and the policy has not been sanctioned and the opposite party No.1 has denied the genuine claim of the complainant. Finding no other alternative the complainant paid the amount of Rs.15,590/- as demanded by the opposite party No.3 and after that the opposite party No.3 discharged the complainant without proper diagnose and at that time the complainant requested the opposite party No.3 to continue the treatment as he is going to arrange huge amount as directed by the opposite party No.3, but during the treatment the complainant was forced to discharge from the hospital. On such like averments, the complainant has prayed for refund of the claim amount. He has also claimed damages.

2. Upon notice, opposite parties No.1 & 3 appeared and filed their written replies. In its written reply opposite party No.1, inter-alia, pleaded that the complainant has not approached this Forum with clean hands and suppressed material facts from this Forum. It is submitted that cashless claim of the complainant was received by the opposite party No.1 through Bone & Children Hospital, Pathankot Chowk, Jalandhar. However the same was rejected vide rejection letter dated 13.2.2015. It is submitted that as per the discharge summary/medical history of the complainant, he is the patient of diabetes since 2012. The policy inception date in case of the complainant is 22.2.2013. Hence, the disease for which the claim is filed is pre-existing disease and as per the terms and conditions of the insurance policy, pre-existing disease is covered after the period of 48 months from the first policy date. Apart from this as per the exclusion clause of terms and conditions of the insurance policy, pre-existing disease is covered after 36 months of the first policy. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.3 pleaded that as such no cause of action arose against the opposite party No.3 in this case, no negligence or deficiency in services has been made/ provided by the opposite party No.3 to the patient while providing the said services in question, and hence this complaint is not maintainable in present form and is liable to be dismissed outright. That everything the opposite party No.3 has done/was done diligently, prudently, with utmost due care and caution in treating the said patient. The patient was diagnosed of uncontrolled sugar, high BP, neurasthenia with hyper glycemia. The patient also gave a history of diabetes from last four years. Opposite party No.3 has submitted the correct diagnosis and then history was told by the patient to the insurance company i.e opposite party No.1. Opposite party No.1 has not provided authorization for cashless then this is a matter of patient and insurance company. The insurance company provides the cashless facility to clients which depends upon the patient's policy type and the diagnosis. Patient has wrongly alleged that opposite party No.3 hospital has not provided the sufficient treatment. It denied other material averments of the complainant.

4. Upon notice opposite party No.2 did not appear and as such it was proceeded against exparte.

5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C22 and closed evidence.

6. On the other hand, learned counsel for the opposite parties No.1 & 3 has tendered affidavits Ex.OP1/A and Ex.OP3/A alongwith documents Ex.OP1 to Ex.OP5, Ex.OP3/1 and Ex.OP3/2 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties.

8. Ex.C3 is policy schedule. It is not disputed that complainant has taken mediclaim policy from the opposite party No.1 insurance company. According to the complainant on 11.2.2015 he was admitted in Kapoor Bone and Child Care Hospital, Jalandhar and he was suffering from High B.P and Nerve Stiffness. He filled cashless request form but same was declined by opposite party No.1 insurance company on the ground that he has past history of Diabetes since 2012 i.e before taking policy for the first time. Ex.C12 is copy of discharge card. Opposite party No.3 was treating doctor. Counsel for the opposite party No.1 insurance company contended that opposite party No.3 i.e the treating doctor in his affidavit Ex.OP3/A has alleged that patient also gave history of diabetes from last 4 years and opposite party No.3 has submitted the correct diagnosis and then history was told by the patient to the insurance company. Counsel for the opposite party No.1 contended that admittedly treating doctor has stated that complainant was suffering from diabetes since 2012 i.e he was having a history for the last about 4 years and was also treated for uncontrolled diabetes and as such opposite party No.1 insurance company has rightly rejected the claim of the complainant. Now, the question which fall for determination is, whether opposite party No.1 insurance company was justified in repudiating the claim of the complainant on the ground that he was having pre-existing disease of diabetes before taking the policy?

“In Birla Sun Life Insurance Co. Limited another Vs Sukhwinder Singh another, First Appeal No.714 of 2011 decided on 04.05.2011 by our Hon'ble State Commission in somewhat similar circumstances, it has been held that :-

"Admittedly the life assured in the present case had not disclosed if she was suffering from hypertension or from diabetes. The appellants have also produced the documents to show that the life assured was suffering from hypertension and diabetes. The question which arises for determination is whether that ground is sufficient for repudiation?

9. So far as diabetes is concerned, the settled law is that this is not a material disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as this is a curable disease. It was held by this Commission in First Appeal No.1674 of 2002 “L.I.C. of India and others Vs. Ramandeep Kaur, and another” decided on 2.2.2009 as under:“

10. So far as the law on the subject is concerned it was held by the Hon’ble Supreme Court in the judgment dated 10.10.1995 recorded in “Biman Krishna Bose vs. United India Insurance Co.” Civil Appeal No.343 8 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself

11. It was held by this Commission in the judgment reported as “Life Insurance Corporation of India vs. Sushma Sharma” 1(2008) CPJ 213 as under:“

12. So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium.”

13. It was also held by this Commission in the judgment reported as “Lfè Insurance Corporation of India vs. Satwinder Kaur” 2008(2) CLT 405 as under:“

14. The settled law is that the Insurance Companies must have solid and convincing evidence to prove that the insured had suppressed material facts while filling the proposal form. The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim. Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.”

15. The ratio of above authority is applicable on the facts of the present case. So we are of the opinion that opposite party No.1 insurance company was not justified in repudiating the claim of the complainant on the above said ground i.e he was suffering from diabetes since 2012.

16. In view of above discussion, the present complaint is accepted and opposite party No.1 insurance company is directed to pay Rs.15590/- to the complainant alongwith interest @ 9% per annum from the date of filing of the present complaint till the date of payment. The complainant is also awarded Rs.3000/- on account of litigation expenses. Compliance be made within one month. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

09.11.2015 Member Member President