State Consumer Disputes Redressal Commission
M/S Star Health And Allied Insurance ... vs Mohinder Pal And Another on 25 August, 2023
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.239 of 2020
Date of institution : 05.08.2020
Reserved on : 16.08.2023
Date of decision : 25.08.2023
M/s Star Health and Allied Insurance Co. Ltd., through its branch
Manager, SCF 12-13, Improvement Trust Market, above ICICI Bank,
G.T.Road, Moga-142001 through its duly constituted attorney.
.....Appellant/Opposite Party No.1
Versus
1. Mohinder Pal, aged 66 years son of Sh. Maghi Ram Goyal,
resident of Ward No.1, Near Government High School, Talwandi
Bhai, Tehsil and District Ferozepur, Punjab.
....Respondent No.1/complainant
2. Harpreet Singh, Code No.BA0000261983 agent of Star Health
and Allied Insurance Company Limited, SCF 12-13, Improvement
Trust Market, above ICICI Bank, G.T. Road, Moga 142001.
.....Respondent No.2/OP No.2
First Appeal under Section 41 of the
Consumer Protection Act, 1986 against the
order dated 14.02.2020 of the District
Consumer Disputes Redressal Forum (now
'Commission'), Ferozepur
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. Neeraj Khanna, Advocate for Sh. Ravinder Arora, Advocate For respondent No.1 : Sh. Sandeep Khunger, Advocate For respondent No.2 : Ex-parte KIRAN SIBAL, MEMBER The instant appeal has been filed by the appellant/opposite party No.1 against the impugned order dated 14.02.2020 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, now FA 239 of 2020 2 "the District Commission"), whereby the complaint filed by complainant against opposite parties (in short 'OPs'), under Section 12 of the Consumer Protection Act, 1986, was allowed and the following relief has been granted against OP No.1:
"11. In view of what has been discussed above, the present complaint is allowed with Rs.5,000/- as consolidated compensation for mental agony, pain and harassment as well as litigation expenses. Opposite party No.1 is directed to pay the remaining claim of the complainant i.e. Rs.1,62,923/- of first claim and Rs.3,33,700/- of second claim, which spent on his treatment alongwith interest @8% per annum from the date of filing of the complaint till its realization. However, the opposite party No.1 is at liberty to deduct co-payment charges at the rate of 30% out of claim amount as per terms of the policy. Complaint against opposite party No.2 stands 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 was purchasing medi-claim policies of OP No.1 since 2016 and was having a policy bearing No.P/211222/01/2019/000229 valid for the period from 16.05.2018 to 15.05.2019 for the sum assured of Rs.10 lakh. At the time of issuing the policies, no medical check up of the complainant was got conducted by the OPs. Unfortunately, the complainant had to undergo bilateral 'Total knee replacement' operation in June 2018 from IVY Hospital Super Speciality Healthcare, Mohali. The complainant spent an amount of Rs.2,82,988/- on the said operation. All the bills along with discharge summary was submitted with OP No.1 and after verifying the same, an amount of Rs.1,20,065/- only was paid by it directly to the hospital and the complainant had to pay the remaining amount of Rs.1,62,923/-, for which he was entitled FA 239 of 2020 3 for refund of the same by OP No.1 under the said policy. It was specifically mentioned on the discharge summary that complainant had a past history of "Rheumatoid Arthritis, though he was not aware about the same. Unfortunately, after about 10 months, the complainant had to undergo a second operation of "Left Hip" total replacement on 17.04.2019 from 'Medanta, The Medicity Gurgaon' and an amount of Rs.3,33,700/- had been spent on the said operation. Intimation in this regard was given to OPs, who appointed an investigator and all the bills in original were obtained by the said investigator. Thereafter, the complainant received a letter dated 23.04.2019 from OP No.1 regarding submission of documents and the same were duly submitted by the complainant. Again the complainant received a letter dated 27.05.2019, wherein OP No.1 repudiated the claim of the complainant by referring condition No.11 of the policy and also threatened to cancel the renewal of the policy with effect from 06.07.2019. No such terms and conditions were ever read over and explained to the complainant by the OPs. The genuine claim of the complainant was wrongly, illegally and arbitrarily repudiated by OP No.1 on the ground that the complainant was diagnosed as Rheumatoid Arthritis. Alleging deficiency in service on the part of the OPs, the complainant filed consumer complaint before the District Commission and sought the following directions against OPs;
i) to pay Rs.1,62,923/- being the balance amount of first claim along with interest;
ii) to pay Rs.3,33,700/- being amount claimed under second claim along with interest;
FA 239 of 2020 4
iii) to pay Rs.3,00,000/- as compensation for harassment, inconvenience, frustration and mental agony;
iv) not to cancel the policy and to pay Rs.20,000/- as amount of litigation.
4. Notice of the complaint was issued to the OPs but OP No.2 failed to appear to contest the complaint despite service. As such, OP No.2 was proceeded against exparte. OP No.1 appeared and contested the complaint by filing written reply. In reply to complaint, OP No.1 stated that the complainant had not disclosed the material facts and there was major misrepresentation of facts regarding the past health history from the first year of policy inception. Complainant had availed 'Senior Citizens Red Carpet Health Insurance Policy' since 16.05.2016. The terms and conditions of the policy were explained to the complainant at the time of proposing the policy and the same was served to the complainant along with the policy schedule. The complainant reported claim in the 3rd year of the policy vide claim No.CLI/2020/21122/0032005. As per pre authorization request, the complainant was diagnosed with OSTEOARIHRITIS LEFT HIP HYPERTENSION RHEUMATOID ARTHRITIS and raised pre authorization request for cashless treatment and the same was denied vide letter dated 16.04.2019, as the complainant was known case of RHEUMATOID ARTHRITIS for the last 10 years and previous record of treatment was not submitted despite queries raised by letter dated 15.04.2019. As per condition 9 of the policy, if there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person action on his behalf, the insurance company is not liable to make any payment in respect of any claim. FA 239 of 2020 5 Therefore, the claim of the complainant was rejected vide letter dated 27.05.2019. As per condition No.13 of the policy, the policy was also liable to be cancelled due to non-disclosure of material facts. Accordingly, the policy of complainant for the period from 16.05.2018 to 15.05.2019 bearing No. P/211222/01/2019/000229 was cancelled with effect from 06.07.2019 and refund of premium was made to the complainant. The earlier claim lodged by the complainant for treatment in IVY Hospital Mohali from 06.06.2018 to 12.06.2018, vide claim No. CLI/2019/211222/0104816 for treatment of Bilateral Knee Replacement, OP No.1 settled the claim for Rs.1,20,064/- under 50% copay, since the Discharge Summary submitted at the time of pre authorization had no past history. The history of the RHEUMATOID ARTHRITIS was only revealed during the present hospitalization, hence, the claim was rejected and the complainant was called to refund the amount of Rs.1,20,064/- to OP No.1. The insurance company had rightly repudiated the claim of the complainant and There was no deficiency in service on its part. After denying the other averments made in the complaint, OP No.1 prayed for dismissal of the complaint.
5. The parties led their evidence in support of their respective contentions before the District Commission and after going through the record and hearing learned counsel for the parties, the District Commission allowed the complaint of the complainant, vide impugned order dated 14.02.2020. Aggrieved with the same this appeal has been filed by the appellant /OP No.1.
FA 239 of 2020 6
6. Notice of the appeal was issued to the respondents through registered post. But respondent No.2/OP No.2 did not appear despite service, therefore, he was proceeded against exparte, vide order dated 16.11.2020.
7. We have heard learned counsel for the appellant and respondent No.1 and have gone through the written arguments as well as record of the case.
8. The learned counsel for the appellant has vehemently contended that the District Commission has ignored the fact that there is violation of terms and conditions of the insurance policy. The respondent No.1/complainant obtained the Senior Citizens Red Carpet Health Insurance Policy in question and the terms and conditions were duly explained to him at the time of proposing the said policy and the same was served to him along with the policy schedule. In the present policy, the medical examination of the insured is not required as the entry age must be above 60 years. As per the terms and conditions of the said policy, only those pre-existing diseases, which are specifically declared by the proposer in the proposal form, are covered under the policy. It is compulsory to provide information regarding the health in the proposal form so that the appellant/OP No.1 provide coverage with suitable co-payment i.e. 50% of each for every claim arising out of all pre-existing diseases as defined and 30% in case of all other claims, which are to be borne by the insured. The respondent No.1/complainant has a past history of Rheumatoid Arthritis for the last 20 years, which is a pre-existing disease and this fact was not disclosed at the time of FA 239 of 2020 7 taking the insurance policy by respondent No.1/complainant. The claim has rightly been repudiated by the appellant/OP No.1. Alleging no deficiency in service, on its part the learned counsel for the appellant/OP No.1 prayed for acceptance of the present appeal by setting aside the impugned order.
9. On the other hand, the learned counsel for respondent No.1/complainant has argued that the order passed by the District Commission is a well reasoned order and it had rightly allowed the complaint in favour of the complainant. The learned counsel further argued that the appellant/OP No.1 has utterly failed to prove on record that the alleged terms and conditions were prevalent during the relevant period and the same were ever supplied to the respondent No.1/complainant at the time of issuing the policy. The respondent/complainant is bound by the terms and conditions which were supplied to the him at the time of obtaining the insurance policy and not the other terms and conditions, which have not seen the light of the day. The learned counsel further argued on the similar lines as stated in the complaint filed before the District Commission and prayed for dismissal of the present appeal.
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
11. The admitted facts of the case are that respondent No.1/complainant purchased 'Senior Citizen Red Carpet Health Insurance Policy', bearing No.P/211200/01/2017/000384, Ex.C-2 from appellant/OP No.1, which was valid from 16.05.2016 till 15.05.2017, for FA 239 of 2020 8 the sum assured of Rs.10 lakh and thereafter he got renewed the same from time to time as under:-
(i) Policy No.P/211222/01/2018/000153, valid from 16.05.2017 till 15.05.2018 (Ex.C-3)
(ii) Policy No.P/211222/01/2019/000229, valid from 16.05.2018 till 15.05.2019 (Ex.C-4)
(iii) Policy No.P/211222/01/2020/000412, valid from 15.06.2019 till 15.05.2020 (Ex.C-5) It is also not in dispute that the complainant underwent bilateral total knee replacement operation in June 2018 from IVY Hospital, Mohali, Ex. C-6 (colly) and incurred an amount of Rs.2,82,988/- for the said treatment. Then after about 10 months from the first operation, the complainant underwent 'left hip total replacement' operation in April 2019 from 'Medanta, the Medicity' Gurgaon, Ex. C-8 (colly) and spent an amount of Rs.3,33,700/- for the same. The respondent No.1/complainant alleged that the appellant/OP No.1 failed to reimburse remaining payment of Rs.1,62,923/- incurred by him during first operation and further repudiated the claim of Rs.3,33,700/- incurred by him during second operation, to which he was entitled under the policy in question. On the other hand, the appellant/OP No.1 pleaded that respondent No.1/complainant was not entitled for the alleged claim amount as per the terms and conditions of the policy as he had concealed the material information while obtaining the medi-claim policy. Alleging deficiency in service on the part of the appellant/OP No.1, the respondent No.1/complainant filed consumer complaint before the District Commission, which was allowed by it, vide impugned order.
Aggrieved by the same, the present appeal has been filed by the appellant/OP No.1.
FA 239 of 2020 9
12. The grievance of the appellant/OP No.1 is that the District Commission has wrongly and illegally allowed the complaint without appreciating the fact that there is violation of the terms and conditions of the insurance policy, which were duly explained to the complainant at the time of proposing the policy and the same were served to him along with the policy schedule. Further case of the appellant/OP No.1 is that the complainant is known case of 'Rheumatoid Arthritis' since last 20 years and this fact has been concealed by him at the time of obtaining the insurance policy, therefore, he is not entitled for any claim as per the terms and conditions of the policy. On the other hand, the plea of the respondent No.1/complainant is that no such terms and conditions were ever supplied to him along with the policy. Now, foremost point for consideration before us is whether the alleged terms and conditions were ever supplied by the appellant-insurance company to the respondent No.1/complainant along with the policy schedule or not? A perusal of insurance policy bearing No.P/211200/01/2017/000384, which was valid from 16.05.2016 till 15.05.2017, placed on record by respondent/complainant (Ex. C-2) shows that the same is consisting of only 3 pages including the customer Identity Card. The said policy was renewed from time to time and the subsequent policies i.e. Ex. C-3, Ex.C-4 and Ex. C-5 are placed on record by the respondent No.1/complainant, which are also consisting of 3 pages only. The appellant/OP No.1, in support of its version, placed on record terms and conditions, Ex.OP1/3. A perusal of said terms and conditions show that no date, month or year has been mentioned as to when the same were issued. The appellant/OP No.1 has not brought on record any FA 239 of 2020 10 document by which it can be established that the terms and conditions along with policy schedule, have been dispatched to the policy holder by way of any registered post or otherwise. The onus to prove that the said fact is on the appellant-Insurance Company, which it failed to prove on record by leading any cogent evidence.
13. Now, we proceed to decide the allegation of the appellant/OP No.1 that whether there is any non-disclosure of material information by the respondent No.1/complainant at the time of filling up the proposal form or not? To determine this point, we have carefully perused the proposal form, Ex. OP1/4, which has been placed on record by the appellant/OP No.1, and find that there is no specific question with regard to 'Rheumatoid Arthritis' asked in the said questionnaire. If there was no question put to respondent No.1/complainant, then how he could fill any information qua the same. Therefore, in the absence of the specific question regarding the 'Rheumatoid Arthritis', we are of the opinion that respondent No.1/complainant has not concealed any material information with regard to the ailment of 'Rheumatoid Arthritis' as has been alleged by appellant/OP No.1. Moreover, it is pertinent to mention here that the appellant/OP No.1 has already reimbursed the claim amount partly to respondent No.1/complainant for the expenses incurred on the first operation undertaken by him for 'bilateral total knee replacement'. A perusal of discharge summary of IVY Hospital, Ex. C-6, shows that patient Mohinder Pal having UHID-160357 was admitted in Ivy Hospital on 06.06.2018 and discharged on 12.06.2018. It also shows that respondent No.1/complainant was diagnosid for 'Osteoarthritis Bilateral FA 239 of 2020 11 Knee Joint', 'K/C/O Hypertension' and ''Rheumatoid Arthritis' and under the heading 'Past Medical History' it is mentioned as 'K/C/O Hypertension' and 'Rheumatoid Arthritis'. It is interesting to note that appellant-insurance company is blowing hot and cold in the same breath as they have partly allowed the claim for the first operation after duly considering the said diagnosis on the medical file, wherein the patient/complainant has past history of 'Rheumatoid Arthritis' and they have not raised any objection to this fact, rather have gone ahead and paid the claim amount in part as per terms and conditions of the policy. It is also important to note that the present policy in question is 'Senior Citizen Red Carpet Health Insurance Policy' and it also covers the Pre Existing Diseases. Therefore, it does not lie in their mouth to repudiate the genuine claim of respondent No.1/complainant, which has been lodged by the respondent No.1/complainant after he has undergone a second surgery for 'Left Hip' total replacement, as the insured and insurance policy is same as well as the medical history of the insured is also same. It cannot be a pick and choose policy for the insurance company to pass or reject the genuine claims, which have same pre-existing disease. Accordingly, we do not find force in the contentions raised by the learned counsel for the appellant/OP No.1 and are of the considered opinion that the appellant/OP No.1 is liable to pay the claim in respect of claim lodged by respondent No.1/complainant for the expenses incurred on second surgery for 'Left Hip' total replacement as per terms and condition of the policy.
14. Now, the point for adjudication before us is with regard to the question of payment that the appellant-insurance company is liable FA 239 of 2020 12 to make in respect of two claims lodged before it in the present case. From the perusal of policy documents, Ex. C-4 (Colly) we find that the mediclaim policy in question was valid w.e.f. 16.05.2018 till 15.05.2019. The respondent No.1/complainant took treatment during the subsistence of the policy period and it has been specifically mentioned in the policy schedule under the heading 'Co-Payment' as under:-
"Co-Payment: This policy is subject to co-payment of 50% of each and every claim arising out of pre-existing diseases and 30% of each and every claim for all other claims."
As it has been duly proved on record that the respondent No.1/complainant has past history of 'Rheumatoid Arthritis', therefore it falls under the category of pre-existing disease. Hence, the appellant/OP No.1 is liable to pay 50% of each and every claim arising out of pre-existing diseases, as per above mentioned term and condition. The appellant/OP No.1 has specifically stated in their reply that the first claim lodged by the respondent No.1/complainant for surgery of bilateral 'Total knee replacement' has already been settled for Rs.1,20,064/- under 50% copayment. Therefore, the appellant/OP No.1 is only liable to settle the second claim lodged by respondent No.1/complainant for the expenses incurred on second surgery for 'Left Hip' total replacement under 50% copayment as per the terms and conditions of the policy. The District Commission has failed to consider this aspect, while deciding the complaint. Accordingly, the impugned order is required to be modified.
15. In view of our above discussion, the present appeal is partly allowed by modifying the impugned order of the District Commission, with regard to the claim amount, to the extent that appellant/opposite FA 239 of 2020 13 party No.1 is directed to settle the second claim lodged by the respondent No.1/complainant for the expenses incurred on surgery for 'Left Hip' total replacement i.e. Rs.3,33,700/- under 50% copayment, as per the terms and conditions of the policy. The remaining part of the impugned order with regard to interest part as well as compensation shall remain intact.
16. The appellant had deposited a sum of Rs.1,90,833/- at the time of filing of the appeal and Rs.190,833/- in compliance of order dated 07.10.2023. These amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. Parties may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
17. 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 August 25, 2023.
(Dv)