State Consumer Disputes Redressal Commission
Narendra Modi vs Star Health And Allied Insurance Co. ... on 26 May, 2022
Cause Title/Judgement-Entry IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION ODISHA, CUTTACK First Appeal No. A/180/2014 ( Date of Filing : 25 Mar 2014 ) (Arisen out of Order Dated 06/03/2014 in Case No. CC/228/2011 of District Cuttak) 1. Narendra Modi Kanta Floor Mills, Manik Ghosh Bazar, Cuttack. ...........Appellant(s) Versus 1. Star Health and Allied Insurance Co. Ltd. Cuttack Branch Office, Singh Plaza, Cuttack. 2. Star Health and Allied Insurance Co. Ltd., New Tank Street, Valluvur kottam High Road, Chennai. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT HON'BLE MR. Pramode Kumar Prusty. MEMBER PRESENT: Mr. A.K. Samal, Advocate for the Appellant 1 M/s. B.N. Udgata & Assoc., Advocate for the Respondent 1 Dated : 26 May 2022 Final Order / Judgement
Heard learned counsel for both sides.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the 'Act'). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The factual matrix leading to the case of the complainant is that the complainant had purchased "Family Health Optima Insurance Policy" for his family members including his wife from the OPs in every year for last 3 years i.e. from 19.12.2010 to 18.12.2011. It is alleged inter alia that the complainant's wife suffered from heart disease and hospitalized in Fortis Hospital Ltd, Bangalore from 24.7.2011 to 31.7.2011 whereafter she was treated for Mitral Valve Repair with Teflon Strip Annuloplaty. Complainant alleged to have spent Rs.2,37,851/-. Thereafter, claim was made but the OPs denied to pay the claim amount stating that she has got pre-existing disease. Hence, complaint case was filed.
4. OPs filed written version admitting about purchase of such Medi Claim policy by complainant for his wife and family members continuously for 3 years. They have also admitted for receipt of the claim form for the treatment of Payal Modi the wife of complainant at Fortis Hospital. They have examined the records and found that the complainant has pre-existing disease i.e. Rheumatoid Heart disease with severe Mitral Regurgitation - Surgical Management. So, they repudiated the claim. They averred that the pre-existing disease came under exclusion Claus -I of the policy.
5. After hearing both parties, the learned District Forum passed the following order:-
"xxx xxx xxx Considering the aforesaid facts and evidence on affidavit on record, we are of the considered opinion that there is no deficiency in service on the part of the opp.parties. The Consumer Complaint No. 228 of 2011 be and is hereby dismissed on contest. No cost."
6. Learned counsel for the appellant submitted that learned District Forum committed error in law by not considering the case of complainant with proper perspectives. According to him the complainant's wife has Rheumatic disease surfaced for the first time and has no other related disease earlier to it and OPs have not produced any document to prove the pre-existing disease. Learned District Forum has not applied judicial mind to the facts of the case properly and illegally dismissed the complaint. Therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Learned counsel for the respondents submitted that the learned District Forum has rightly analyzed the case whether the exclusion Clause - 1 applied to the case of the complainant. They further submitted that rightly the learned District Forum has relied on the discharge summery to find out pre-existing disease of Payal Modi. Therefore, the impugned order should be confirmed.
8. Considered the submission of learned counsel for the parties and perused the impugned order including the DFR.
9. It is admitted fact that the complainant has purchased the Medi Claim policy for his wife and family members. It is not in dispute that Payal Modi, the insured was treated for the RSD in the Fortis Hospital and claimed medical expenses under medi-claim policy. It is also not in dispute that the complainant has paid Rs.2,37,851/- whereas the sum insured is up to Rs.2,00,000/-. The only plea taken by the OPs is the pre-existing disease suffered by Payal Modi. In the decision of Mithoolal Nayak vrs. Life Insurance Corporation of India AIR 1962 Supreme Court 814, it has been held by the Hon'ble Apex Court which is as follows:-
" xxx xxx xxx The three conditions for the application of the second part of Section 45 are
a) the statement must be on a material matter or must suppress facts which it was material to disclose,
b) the suppression must be fraudulently made by the policy holder and
c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose."
10. With due regard to the decision, it can be safely observed that within two years of commencement of policy the insurer has right to revoke the policy as per unamended Section - 45 of the Insurance Act, 1938 and onus lies on the insurer to prove all the ingredients before calling the policy in question within two years. With due regard to the aforesaid deciosn it is for the OPs to prove the pre-existing disease and suppression of same by Payal Modi while filling up of the proposal form. Although Section - 45 of the Insurance Act does not apply strictly to the Medi-claim policy but the principles culled out there from would apply.
11. The OPs relied on the terms and conditions of the policy and the discharge summery. The discharge summery is as follows:-
"xxx xxx xxx Known case of RHD with severe mitral regurgitation with complaints of chest discomfort and shortness of breath on exertion on & off since 2 yrs. Now admitted for MVR.
Past History K/C/O RHD since 1 yr.
Physical Examination No pallor/icterus/cyanosis/clubbing/pedal oedema."
12. The aforesaid opinion in the discharge summery is not supported with any treatment documents i.e. prescription of medicine issued by the doctor. For the sake of argument if the opinion is accepted regarding the pre-existing disease, then we have to go through the terms and conditions whether the exclusion clause applied to such disease or not. The exclusion clause No.1 of the policy is as follows:-
" xxx xxx xxx Pre-Existing Disease as defined in the policy, until 48 months of continuous coverage he elapsed, since inception of the first policy with the Company."
13. The aforesaid exclusion clause has got one of the main ingredients i.e. pre-existing disease which is defined in the following manner:-
"xxx xxx xxx Pre-Existing Disease means any ailment on injury or related condition(s) for which the insured person had signs or symptoms and/or was diagnosed and/or received medical advice/treatment within 48 months prior to insured person's first policy with the Company."
14. It appears from the pleadings of both parties that they admit first policy of the insured started on 12.11.2008. So, the pre-existing disease would mean if at all the complainant's wife has suffered from any ISD or related symptom or hospitalization within four years prior to 2008 but the discharge summery shows that she has only suffered from such related symptom for two years prior to 2011. Therefore, we have no stretch of imagination that Payal Modi has any pre-existing disease as defined under the policy. When "pre-existing disease" is not proved, the main ingredient of exclusion clause is hardly proved.
15. In view of aforesaid discussion, we are of the view that learned District Forum has not analyzed the case properly and therefore, we have no hesitation to set aside the impugned order. The impugned order is set aside and the complainant is entitled to receive medical expenses under the Medi-claim up to the sum assured i.e. Rs.2,00,000/-. Therefore, the OPs/respondents are directed to pay Rs.2,00,000/- to the complainant within 45 days failing which it will carry interest at the rate of 12% per annum from the date of impugned order till the date of payment.
16. The appeal stands allowed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission. [HON'BLE MR. JUSTICE Dr. D.P. Choudhury] PRESIDENT [HON'BLE MR. Pramode Kumar Prusty.] MEMBER