State Consumer Disputes Redressal Commission
Star Health And Allied Insurance Co. ... vs Gurbir Singh And Another on 16 October, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.903 of 2022
Date of institution : 21.10.2022
Date of Reserve : 21.09.2023
Date of Decision : 16.10.2023
1. Star Health and Allied Insurance Company Limited through its
concerned officer C/o No.15, Shri Balaji Complex, 1st Floor, White
Lane, Raj Apetta, Chennai-600014.
2. Star Health & Allied Insurance Company Ltd., 2nd Floor, Khajuria
Complex, Opp. Hotel Venice Dhangu Road, Pathankot through its
District Manager.
3. Ajay Mahajan (Agent) S/o Gulshan Mahajan, Opposite LIC Office,
near Bus Stand, Gurdaspur.
.......Appellants/Opposite Parties
Versus
1. Gurbir Singh son of Jaswant Singh, resident of H.No.444/A, Civil
Lines, opposite Main Gate BSF Headquarter, Gurdaspur, Tehsil
and District Gurdaspur, Punjab.
2. Amarbir Kaur wife of Gurbir Singh, resident of H.No.444/A, Civil
Lines, opposite Main Gate BSF Headquarter, Gurdaspur, Tehsil
and District Gurdaspur, Punjab.
.......Respondents/Complainants
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 06.07.2022
passed by the District Consumer
Disputes Redressal Commission,
Gurdaspur in CC No.25 of 2020.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No F.A.No.903 of 2022 2 Present :-
For the appellants :Sh. Ravinder Arora, Advocate For the respondents :Sh.J.S.Dadwal, Advocate SIMARJOT KAUR, MEMBER The instant appeal has been filed by the appellants/opposite parties i.e. Star Health and Allied Insurance Co. Ltd. & Ors. against the impugned order dated 06.07.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur (in short "the District Commission"), whereby the complaint filed by complainants against opposite parties (in short 'OPs') was allowed.
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 disposal of the appeal are that the Complainant was having one Health Policy by including all his family members with National Insurance Co. Ltd., since 2011-12, which was renewed from time to time up to 21.07.2018. The OP No.3 the Agent of OPs No.1&2 had approached the complainants and lured them to port the policy bearing No.P/11212/01/2019/000683, Product Name:
Family Health Optima Insurance 2017, which was commenced from 22.07.2018 and was valid upto 21.07.2019 as the said policy was to cater their health-needs. OP No.3 had assured the coverage of all medical-treatments including the Cashless Pre Authorizations at designated Hospitals and also all the pre-existing diseases/ailments.
They were to get benefits by covering the diseases/ailments listed in the original policy. In the month of September 2018, Amarbir Kaur complainant No.2 wife of complainant No.1 had a fall in the bathroom F.A.No.903 of 2022 3 and her knee got injured. She was already suffering from secondary osteoarthritis since 2016. She had consulted the orthopedic surgeon in February 2019, who straightaway advised her for 'knee replacement'. She got admitted in the NHS Hospital, Jalandhar on 14.02.2019 for knee replacement surgery. Thereafter, she filed her claimed with OPs but the same was rejected. Thus, the complainants themselves had paid an amount of Rs.2,50,000/- for the said surgery/hospitalization. Upon discharge the claim was filed with the OPs and the same was repudiated on 10.06.2019 on the ground that Amarbir Kaur complainant No.2 had not disclosed her pre-existing ailment at the time of port/purchase of the policy. It was also mentioned that as per the terms and conditions of the said ported policy all pre-existing ailments were covered by it. The OPs had repudiated the claim of complainant No.2 on the flimsy ground. Thus, the complaint filed by the complainants with the prayer that OPs be directed to settle the claim by paying an amount of Rs.249,618/- along with interest @ 18% PA from the date of policy till its realization and also to pay an additional Rs.2,00,000/- as compensation for causing harassment and mental agony. Further directed to pay an amount of Rs.20,000/- as litigation expenses.
4. Notice of the complaint was issued to the OPs No.1&2 by the District Commission. OPs No.1&2 filed their written reply by raising certain preliminary objections. On merits, it was pleaded there was no deficiency in service on their part. The non-disclosure of pre- existing ailment amounted to misrepresentation and all its medical expenses were not admissible under the ported policy. It was further F.A.No.903 of 2022 4 mentioned that the complainants were never supplied the terms and conditions of the policy from the OP No.1 insurer and thus the hospitalization claim for total-knee replacement had rightly been repudiated as per the terms of the policy under exclusion clause 4.3. All other allegations had been denied and prayed for dismissal of the complaint.
5. OP No.3 was proceeded against ex-parte by the District Commission vide order dated 19.02.2021.
6. Sh.Ravinder Arora, Advocate learned counsel for the appellants/OPs has argued on the similar lines as per the reply filed before the District Commission. Learned counsel has submitted that complainants had moved an application seeking portability of the policy to Star Health and Allied Insurance Company Ltd. (OP No.1) from the previous insurer i.e. National Insurance Company Ltd., on 20.07.2018.The respondents/complainants had duly filled up the proposal form also. It was the duty of the complainant to disclose all the facts regarding health condition of the insured person for insurance, seeking portability of his policy to New Insurer. The insured sum was enhanced to Rs.10,00,000/- as against erstwhile sum insured of Rs.2,50,000/-. After treatment/surgery, the complainants had lodged claim for seeking reimbursement of medical expenses incurred on the treatment undergone for Left Knee replacement at NHS Hospital on 15.02.2019. He has also submitted that OPD slip dated 13.12.2016 as submitted during the process of cashless claim had clearly reflected that the insured patient was suffering from osteoarthritis since 2016 which was prior to the porting F.A.No.903 of 2022 5 of the said policy. However, this fact was not disclosed. Learned counsel has further submitted that the repudiation of the claim was as per the terms and conditions of the policy on the grounds and there was misrepresentation and non-disclosure of material facts. It was a clear violation of terms and conditions of the policy as per Clause 4.3 of the policy. The complaint being bereft of any merit deserved dismissal.
7. Mr.J.S.Dadwal, Advocate learned counsel for the respondents/complainants has submitted that the respondents/complainants had been insured through OP No.3 i.e. Ajay Mahajan (Agent) and he had assured coverage of all medical treatments including the cash less pre-authorization at the OP designated hospitals and all the pre-existing diseases/ailments. It was evident from the list of continuing-benefits on page 2/3 of Ex.C-1. However, in the month of September 2018, the respondent No.2 Amarbir Kaur had a fall in the bathroom and her knee was injured. She was already suffering from osteoarthritis since 2016. She had consulted the orthopedic surgeon in February 2019 who advised for knee replacement. Respondent No.2 got admitted for knee surgery on 14.02.2019 in the NHS Hospital, Jalandhar and had applied for cashless authorization but the same was rejected by the OP insurers. They paid an amount of Rs.2,50,000/- for surgery/hospitalization. Upon discharge they filed the claim with OPs. However, the said claim was repudiated on 10.06.2019 on the ground that she had not disclosed her pre-existing ailment at the time of port/purchase of the policy. The ported policy's terms had allowed coverage to all pre- F.A.No.903 of 2022 6 existing diseases but all failed, the OP did not review and relent over their repudiation. The respondents were also holding one health policy with National Insurance Company which was being renewed from time to time. However respondents/complainants had prompted through porting of previous policy with National Insurance Company having its inception routed in the year 2014. It is an accepted proposition in insurance para-lance that date of inception does not alter the porting from one insurer to the other. The District Commission had observed that OPs had offered coverage to all the listed pre-existing diseases.
8. By considering the averments made in the Complaint as well as in the reply thereof. The complaint filed by the complainants was allowed order dated 06.07.2022 passed by the District Commission. The relevant part of said order is reproduced as under:-
"8. In the light of the all above, we set aside the OP insurers' impugned rejection as well as repudiation of the complainants' knee replacement hospitalization-claim being unfair, arbitrary (and in contravention to laws of equity and natural justice) and amounting to 'unfair trade practice cum deficiency in service'. Thus, we ORDER the OP insurers to pay the full amount of the impugned claim for total-knee replacement Rs.2,49,618/- as payment of the impugned 'insurance claim(s)' along with other accrued benefits, if any, pertaining to the related policy with interest @ 6% PA w e from the date of filing of the claim besides Rs.10,000/- in lump sum as compensation cum cost of litigation within 45 days of receipt of the copy of these orders." F.A.No.903 of 2022 7
9. The appellants/OPs have filed the present appeal being aggrieved by the impugned order dated 06.07.2022 passed by the District Commission by raising a number of arguments.
10. We have heard the oral arguments raised by learned counsel for the parties. We have also carefully perused the impugned order passed by the District Commission as well as all the relevant documents available on the file.
11. Facts relating to filing of complaint by the complainants before the District Commission, reply thereof and on hearing the oral arguments raised by counsel for the parties and passing of impugned order dated 06.07.2022 by the District Commission and thereafter filing of present appeal before this Court by the appellants/OPs are not in dispute.
12. Admittedly, the complainants had got ported the previous policy issued by National Insurance Company Ltd. to Family Health Optima Insurance Plan floated by Star Health and Allied Insurance Company. The Policy bearing No.P/11212/01/2019/000683 which was commenced from 22.07.2018 to 21.07.2019 as the said policy was to cater their health-needs/cover up health expenses.
13. The issue for determination by us as to whether the complainant No.2 Amarbir Kaur was entitled to get the benefit of coverage of health expenses incurred for knee replacement or not?
14. For reaching to the right conclusion, we have perused the tendered documents filed before the District Commission. The copy of ported policy with terms and conditions (Ex.C-1) has been perused F.A.No.903 of 2022 8 where under the tables the details of insured persons are mentioned and the said tables are reproduced as under:-
Table No.1 Details of Insured Persons:
Sr. Name of the Gender Date of Age Relationship ID Card Pre- Inception No Insured Birth in with proposer No. existing Date Yrs Disease 1 GURBIR M 11/12/1975 42 SELF 9568782-1 No PED 22/07/2014 SINGH declared 2 AMARBIR F 19/09/1974 43 SPOUSE 9568782-2 No PED 22/07/2014 KAUR declared 3 HARPREET F 14/11/1992 25 DEPENDANT 9568782-3 No PED 22/07/2014 KAUR CHILD declared 4 INDERBIR M 13/08/1995 22 DEPENDANT 9568782-4 No PED 22/07/2014 SINGH CHILD declared 5 RAJBIR M 03/08/1997 20 DEPENDANT 9568782-5 No PED 22/07/2014 SINGH CHILD declared Table No.2 Continuity Benefits applicable is as follows Sr. Name of the ID Card 30 Days 1st Year First Two Year Pre-existing No Insured No. Waiting Exclusions Exclusion Disease Period 1 GURBIR SINGH 9568782-1 Waived Not Waived Covered Applicable 2 AMARBIR KAUR 9568782-2 Waived Not Waived Covered Applicable 3 HARPREET KAUR 9568782-3 Waived Not Waived Covered Applicable 4 INDERBIRSINGH 9568782-4 Waived Not Waived Covered Applicable 5 RAJBIR SINGH 9568782-5 Waived Not Waived Covered Applicable
15. It is evident from the above two tables that pre-existing disease was not declared on the date of inception i.e. 22.07.2014. However, in the second table under the continuity of benefits in the same exhibit at Sr.No.2, pre-existing disease of Amarbir Kaur was shown as covered.
16. Besides the above, we have also perused the documents Ex.C-2 & Ex.C-3 i.e. previous policy cover note wherein the premium had been shown as Rs.8979/- and Rs.10,350/- towards sum assured of Rs.2,50,000/-. In the ported policy the premium has been shown as Rs.25,772/- and sum assured is Rs.10,00,000/-. Meaning thereby the F.A.No.903 of 2022 9 complainants/respondents had been paying more amount of premium in the ported policy. Thus it could be deduced from above that the claim for pre-existing diseases under the continuity benefits was rightly shown as "covered", and the claim should not have been repudiated on account of exclusion clause/pre-existing disease. It has also been observed in the document Ex.OP-1,2/9 i.e. Rejection of pre-authorization for cashless treatment, wherein it had been mentioned by the OPs, which is reproduced as under:-
"The insured has failed to disclose this in her proposal form at the time of porting with star. The claim for treatment of the condition is not admissible until the expiry of 12 months from the date of porting with star".
Furthermore Ex.OP-1,2/18 i.e. Repudiation of claim has been perused wherein it is observed that appellants/respondents had reiterated this fact regarding her pre-existing health condition and non-disclosure of disease. If it was the ground for repudiation of claim then why the appellants/respondents had mentioned in table No.2 as pre-existing disease being covered.
17. From the bare perusal of the above said documents, it is apparent that the reason of repudiation of claim is a paradox in terms of table No.1 where "No PED declared" is mentioned whereas in table No.2 under the caption of continuity of benefits applicable pre-existing disease has been shown to be covered. Said document has been signed by the authorized signatory OP Company and Gurbir Singh, the complainant.
18. It has been alleged by the appellants/OPs that the complainant No.2 Amarbir Kaur had pre-existing ailment of osteoarthritis. Osteoarthritis is a common problem occurred due to F.A.No.903 of 2022 10 which the bones become weak and brittle. It is not necessary that a knee replacement is required in such cases relating to said disease. In the present case the complainant had fallen and she had to undergo surgery for knee replacement surgery. Meaning thereby it was sudden occurrence/accident, the repudiation of claim on this ground is not justifiable. The impugned order passed by the District Commission is based on proper appreciation of facts and documents available on the record.
19. In view of the above, we find force in the arguments raised by learned counsel for the respondents/complainants. Accordingly, finding no merit in the arguments raised by learned counsel for the appellants/OPs, we dismiss the appeal of the appellants/OPs and uphold the order dated 06.07.2022 passed by the District Commission.
20. The appellants had deposited an amount Rs.1,47,166/- at the time of filing the appeal with this Commission. The said amount, along with interest which has accrued on the amount deposited by the appellants, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of the sending of certified copy of the order to the parties. The concerned parties may approach the District Commission for release of the same and the District Commission may pass the appropriate order in this regard, in accordance with law.
21. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly, disposed of.
F.A.No.903 of 202211
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER October 16, 2023 (Rupinder 2)