State Consumer Disputes Redressal Commission
Vaneet Syal vs Religare Health Insurance Company Ltd. ... on 5 February, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.780 of 2022
Date of institution : 08.09.2022
Reserved on : 18.01.2024
Date of decision : 05.02.2024
Vaneet Syal, aged about 66 years, son of Hari Ram Syal, resident of
Railways Road, Near Central Bank, Khanna, District Ludhiana-
141401
.....Appellant/Complainant
Versus
1) Religare Health Insurance Company Limited, Vipul Tech Square,
Tower C, 3rd Floor, Sector 43, Golf Course Road, Gurugaon-
122009, through authorized signatory.
2) Religare Health Insurance Company Limited, Building Bearing
No.B-XIX-122/3/1, 1st Floor, Golden Plaza Mall, Mall Road,
Ludhiana-141001 through authorized signatory.
....Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act 2019, against the
order dated 27.01.2022 passed by the
District Consumer Disputes Redressal
Commission, Ludhiana in CC No.553 of
2018.
Quorum:-
Mr. H.P.S.Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh. Manu Loona, Advocate
For respondents : Sh. Nitesh Singhi, Advocate
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the
appellant/complainant against the order dated 27.01.2022 passed by District Consumer Disputes Redressal Commission, Ludhiana FA 780 of 2022 2 (in short, "the District Commission"), whereby the complaint filed by complainant against opposite parties (in short 'OPs'), under the Consumer Protection Act, 1986, was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that the complainant purchased one 'Explore Asia (International Travel Insurance)" policy bearing No.11935810 from OPs, through online mode, for the period from 13.01.2018 to 23.01.2018 and paid a sum of Rs.1785/- as insurance premium. Unfortunately, on 15.01.2018, during his foreign visit to Bangkok, Thailand, the complainant was admitted in the 'Phyathai 1 Hospital, Bangkok' due to difficulty in breathing with wheezing attack. He remained admitted in the said hospital for the period from 15.01.2018 to 31.01.2018 and spent an amount of 549,281 Thai (converted in Indian rupees i.e.Rs.11,15,040/-) towards his treatment as the OPs denied the cashless facility vide letter dated 22.01.2018. After reaching at his home town, the complainant lodged the claim with the OPs on 12.02.2018 for reimbursement of amount spent by him, but the OPs, vide letter dated 17.03.2018, repudiated the claim of the complainant on the ground of non-disclosure of pre- existing disease of hypertension, diabetes mellitus type-2, respiratory problem (Asthma). The complainant alleged that the OPs illegally and arbitrary rejected the claim of the complainant as diseases such as diabetes and hypertension are nothing but normal wear and tear of FA 780 of 2022 3 modern life. Moreover, there was no mis-representation or non- disclosure of any material particulars by the complainant at the time of taking of the policy. The complainant had no knowledge of alleged diseases prior to the time of his admission on 15.01.2018. Alleging, deficiency in service on the part of the OPs, the complainant filed consumer complaint before the District Commission and sought directions against the OPs to pay the claim amount of Rs.11,15,040/- as well as air ticket charges difference of Rs.27,999/- along with interest @ 18% p.a. and further to pay Rs.33,000/- as litigation expenses.
4. The complaint was contested by the OPs by filing joint reply, wherein they raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, the OPs stated that the complainant was insured vide Travel Insurance Policy (Explore Asia) in question for the sum of 50,000 US$ subject to policy terms and conditions. During the period of insurance, the complainant approached the insurance company for cashless facility in respect of his hospitalization at Phyathai Hospital, Bangkok from 15.01.2018 to 31.01.2018. After receipt of cashless facility request, the OPs sought some information and requisite documents, which were not supplied by the complainant. Therefore, the said request was declined vide letter dated 22.01.2018 as per clause 2.1.4 of the policy terms and conditions. Thereafter, the complainant filed reimbursement claim in respect of his hospitalization from 15.01.2018 to 31.01.2018 for the sum of Rs.10,93,912.90 P. The OPs investigated the matter FA 780 of 2022 4 and it was found that the complainant returned to India on 31.01.2018 and was hospitalized at Ivy Hospital, Mohali from 31.01.2018 to 03.02.2018 and as per record of the said hospital, the complainant was a known case of hypertension and diabetes mellitus type 2 for the last 5-6 years. Further as per HRCT Chest Report dated 01.02.2018, the complainant was suggestive of COPD (Chronic Obstructive Pulmonary Disease) along with Fibro-bronchitis changes, which is a progressive lung diseases including emphysema, chronic bronchitis and refractory (non- reversible) asthma. The OPs further stated that the disease known as COPD does not develop suddenly, rather it develops over a period of time, but the complainant did not disclose the pre-existing diseases at the time of filling up the proposal form. Hence, his claim was rightly rejected vide letter dated 17.03.2018 under clause 5.1 of the policy terms and conditions. After denying the other averments made in the complaint, OPs prayed for dismissal of the complaint.
5. Parties led their evidence in support of their respective contentions before the District Commission and after hearing the learned counsel for the parties, the complaint was dismissed, vide impugned order dated 27.01.2022 passed by the District Commission. Aggrieved by the said order, this appeal has been filed by the appellant/complainant for setting aside the same. FA 780 of 2022 5
6. We have heard learned counsel for the parties and have also gone through written submission filed by appellant as well as record of the case.
7. The Learned counsel for the appellant/complainant has vehemently contended that the District Commission has passed the impugned order in a hot and haste manner without considering the fact that the appellant/complainant himself has stated that he has not suffered from any kind of diabetes, hypertension and asthma prior to his admission in hospital on 15.01.2018 during his overseas tour and it was even not in his knowledge that he was suffering from such diseases. The District Commission has ignored the findings/observation/treatment chart of the Phyathai 1 Hospital, Bangkok, wherein it has been clearly written that the appellant/complainant was admitted in hospital due to 'Influenza Virus' and not from any alleged undisclosed pre-existing disease such as DM-2, Hypertension and respiratory problem. The learned counsel further contended that the repudiation of the claim could not have been based upon the sole observation of IVY Hospital and in the abeyance of the record of the Phyathai 1 Hospital, the OPs have not even bothered to look into the treatment chart of the said hospital. The District Commission has failed to consider the fact that the policy under dispute was a cashless policy and that too was a Travel Insurance Policy and the OPs intentionally rejected the claim facility to the appellant/complainant on flimsy and hyper-technical grounds. The learned counsel for the appellant/complainant has further argued on FA 780 of 2022 6 the similar lines as stated in the complaint and prayed for acceptance of the present appeal.
8. On the other hand the learned counsel for respondents/OPs has argued that the District Commission has passed a well reasoned and speaking order by appreciating all the documents produced by the appellant as well as the respondents. The learned counsel further argued on the similar lines as stated in the written reply, which are not required to be reproduced here for the sake of brevity. Alleging no deficiency in service on the part of the respondents/OPs, the learned counsel prayed for dismissal of the present appeal.
9. We have given thoughtful consideration to the contentions raised by the parties.
10. The admitted facts of the case are that the appellant/complainant had obtained "'Explore Asia (International Travel Insurance)" policy bearing No.11935810 from OPs for the period from 13.01.2018 to 23.01.2018 for the sum assured of 50,000 US$, Ex. C-1. It is also not in dispute that the complainant fell ill during his visit to Thailand and had taken treatment for his illness from PHYATHAI Hospital, Thailand, Ex. C-6 & C-7, during the currency period of the policy. The complainant lodged claim with the OPs for reimbursement of the expenses incurred by him, which was repudiated vide letter dated 17.03.2018, Ex. C-13, on the ground of non-disclosure of pre-existing diseases. Alleging deficiency in service on the part of the OPs, the appellant/complainant filed consumer FA 780 of 2022 7 complaint before the District Commission, which was dismissed vide impugned order. Aggrieved by the said impugned order of the District Commission, the appellant filed the present appeal.
11. The grievance of the appellant/complainant is that the District Commission did not appreciate the facts and circumstances of the present case in the right perspective and has ignored the vital fact that the complainant had neither suffered from any pre-existing diseases mentioned in the repudiation letter prior to his admission in hospital during his overseas tour nor it was even in his knowledge. On the other hand, the respondents/OPs pleaded that the District Commission has rightly dismissed the complaint of the appellant/complainant after appreciating all the documents and evidence placed on record by the parties.
12. The foremost point for consideration before us is whether the respondents/OPs have rightly repudiated the claim of the appellant/complainant on the ground of non-disclosure of pre-existing disease or not? To determine this point, we have perused the entire evidence on record as well as pleadings of the parties. It would be relevant to discuss the grounds taken by the OPs in its repudiation letter. A perusal of repudiation letter dated 17.02.2018, Ex.C-13, shows that the respondents/OPs repudiated the claim lodged by the appellant/complainant on the ground of non disclosure of pre-existing diseases. The case of the respondents/OPs, in support of repudiation of claim, is that as per record of Ivy Hospital, Mohali for the treatment taken by the complainant w.e.f. 31.01.2018 to 03.02.2018, the FA 780 of 2022 8 complainant was a known case of hypertension and diabetes mellitus type 2 for the last 5-6 years as well as he was suggestive of COPD (Chronic Obstructive Pulmonary Disease) along with Fibro-bronchitis changes, which is a progressive lung diseases including emphysema, chronic bronchitis and refractory (non-reversible) asthma and the said fact was concealed by the appellant/complainant at the time of obtaining the insurance policy. The perusal of medical record relied upon by the respondents/OPs i.e. Ex. R-9 (colly), reveals that as per discharge summary, the complainant was admitted in IVY Hospital, Mohali on 31.01.2018 and was discharged on 03.02.2018. It is pertinent to mention here that the complainant had obtained the travel insurance policy in question covering himself for the period from 13.01.2018 to 23.01.2018. It is not in dispute that he fell ill during his visit to Thailand and had taken treatment there for his illness and after his return to India, he was again admitted in the IVY Hospital and had taken further treatment. The respondents/OPs have relied upon the record of said IVY Hospital, from where the complainant has taken treatment w.e.f. 31.01.2018 to 03.02.2018 i.e. after the coverage period of the travel policy. It has been specifically pleaded by the appellant/complainant in his complaint that he was not aware that he suffered from alleged diseases as he never took any treatment or medication for the same. In support of this plea the appellant/complainant has relied upon 'progress Medical Report-2' of Phyathai Hospital, Ex. C-6. From the perusal of the same, we find that under the column 'Significant previous diseases/Operation/Injuries' it FA 780 of 2022 9 has been mentioned as 'None'. Moreover, the treatment record of said hospital, Ex. C-7, shows that the complainant was diagnosed with 'Severe respiratory failure associated with Influenza Virus', which means that only after conducting the tests upon insured by the hospital, it was revealed that he suffered from the same.
13. So far as the plea of the respondents/OPs that the Chronic Obstructive Pulmonary Disease (COPD) mentioned in the medical record of IVY Hospital, does not develop suddenly, rather it develops over a period of time, is concerned, the same has not been substantiated by leading any cogent evidence or in the shape of past medical record of the complainant for taking any treatment for the said disease prior to taking of the travel insurance policy in question. Even the affidavit of the treating doctor from the concerned hospital has not been placed on record. It is also a matter of common knowledge that some ailments can spend decades, lurking in the body of an individual, until they suddenly spring-up in life. Many persons have diseases that they are already having without knowing and they remain dormant in the body for years. Some illnesses have incubation period of anywhere from years to decades. The onus is on the respondents/OPs to prove it on record that appellant/insured was suffering from the said disease at the time of taking the policy and this fact could have been proved by way of producing any medical record with regard to treatment taken by him prior to the issuance of the travel insurance policy, but they failed to do so. Reliance has been placed on the judgment of Hon'ble Supreme Court in case 'P. Vankat Naidu Vs. Life Insurance FA 780 of 2022 10 Corporation of India & Anr.' IV (2011) CPJ 6 (SC) 6 held in Paras No.6 and 7 as follows:
"6. We have heard learned counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.
7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness."
14. So far as the plea of the respondents/OPs that the appellant/complainant was a known case of hypertension and diabetes mellitus type 2 for the last 5-6 years, is concerned, it was merely stated by the son of the complainant that he was suffering from said diseases and was on medication. But, it is not proved by leading any cogent evidence that the medicines were prescribed by any specialized doctor, after properly diagnosing the insured. Therefore, mere statement of his son cannot be given much weight. Moreover, hypertension and diabetic diseases are lifestyle diseases, which cannot be termed as material and such like persons survives for long years. The appellant/complainant is of 66 years of age approximately FA 780 of 2022 11 and having an old age person, such like diseases arise irrespective of previous history. As per definition of 'Pre-existing Disease' as mentioned under clause 1.53 of the terms and conditions, ' it means any condition, ailment or Injury or related conditions(s) for which the Insured Person had signs or symptoms, and/or diagnosed, and/or received Medical Advice/treatment within 48 months to prior to the first policy issued by the company'. But the respondents/OPs has failed to lead any cogent evidence to establish that the appellant/complainant was suffering from alleged pre-existing diseases and had received medical advice/treatment within 48 months to prior to the policy in question issued by it.
15. Furthermore, even non-disclosing of insured being a patient of Hypertension/diabetes did not amount to suppression of material facts they being a lifestyle diseases, so as to entitle the insurer to repudiate the claim, as held in the case of "Veena Sharma v. Life Insurance Corporation of India" 1999 (1) R.C.R. (Civil) 646. The Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case 'Life Insurance Corporation of India v. Sudha Jain' 2007(2) CLT 423 has drawn conclusions in para 9 of the order and the relevant clause is 9(iii), which is reproduced as under:-
"9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre- existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the FA 780 of 2022 12 policy is hospitalized or operated upon for the treatment of these diseases or any other disease."
16. The Hon'ble National Commission in the case of 'Satish Chander Madan Vs. Bajaj Allianz General Insurance Co. Ltd'. I (2016) CPJ 613 (NC) has held that hypertension is common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. In paras No.8 to 10 it was held as follows:
"8. Learned Counsel for the respondent has contended that as per the terms and conditions of the insurance contract, the Insurance Company was not required to reimburse the petitioner complainant for expenses incurred by him on preexisting disease. Learned Counsel has argued that from the medical report of the petitioner, it is clear that the petitioner was suffering from hypertension prior to the purchase of the insurance policy and since hypertension has a direct nexus with heart ailment, the respondent Insurance Company was justified in repudiating the insurance claim in view of the exclusion clause which excluded the expenses incurred on pre- existing disease.
9. We do not find merit in the above contention. On perusal of the copy of the medical report of the petitioner dated 4.6.2010 issued by Dr. David P. Lipkin as also the letter of the doctor dated 7.6.2010 addressed to Dr. M. Fertleman of Wellington Hospital would show that as per the observations of Dr. David P. Lipkin, the petitioner had a previous history of hypertension and he was on BP medicine Telmisartan. The above referred reports do not mention that the petitioner disclosed any previous history of heart problem. Therefore, the only fact established by the above reports is that the petitioner prior to obtaining insurance policy was having history of hypertension. This, however, does not lead to conclusion that petitioner was also having previous history of heart problem. Therefore, the insurance claim submitted by the complainant for treatment of his heart problem cannot be termed as a claim in respect of a pre existing disease. Thus, repudiation of insurance claim by the respondent opposite party is not justified.FA 780 of 2022 13
10. Learned Counsel for the respondent has contended that it is established on record that the petitioner was having a previous history of hypertension and since hypertension can lead to heart problem, the respondent was justified in repudiating the claim on the ground that the heart problem suffered by the petitioner was caused by pre existing hypertension. There is no merit in this contention. Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. Therefore, the argument advanced by respondent is far fetched and is liable to be rejected."
17. In view of ratio of judgments as discussed above, we are of the considered view that the respondents/OPs have wrongly repudiated the claim of the appellant/complainant on the ground of non-disclosure of pre-existing diseases. Accordingly, we partly allow the appeal of the appellant/complainant and the impugned order of the District Commission is hereby set aside. Resultantly, the complaint filed by the appellant/complainant is also partly allowed and the respondents/OPs are directed to pay amount incurred on the treatment of the complainant i.e. Thai 549,281 (Rs.11,15,040/- in Indian currency as per exchange rate applicable on 31.01.2018) along with interest @ 6% per annum from the date of wrongful repudiation i.e. 17.03.2018 till its realization. The respondents/OPs are at liberty to verify the exchange rate applicable at that time. The opposite parties are further directed to pay lump sum amount of Rs.25,000/- towards litigation expenses and compensation to the complainant. The order be complied within a period of 60 days from the date of receipt of certified copy of the same.
FA 780 of 2022 14
18. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S.Mahal) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER February 05, 2024.
(Dv)