State Consumer Disputes Redressal Commission
Religare Health Insurance Co. Ltd. vs Swarn Kanta Jain on 8 May, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 170 of 2018
Date of Institution : 20.03.2018
Date of Reserve : 30.04.2018
Date of Decision : 08.05.2018
Religare Health Insurance Company Ltd., GYS Global, Plot No.
A3, A4, A5, Sector 125, Noida, U.P. 201301 and Golden Plaza, 1st
Floor, The Mall, Mall Road, Ludhiana through Mr. Prashant Singh,
Manager, Legal, Religare Health Insurance, 3rd Floor, Vipul Tech
Square, Tower C, Sector 43, Gold Course Road, Gurgaon,
Haryana.
....Appellants/Ops
Versus
Swarn Kanta Jain aged about 67 years wife of Sh. Ramesh Kumar
Jain, resident of House No. 779, Patel Nagar, Civil Lines,
Ludhiana.
....Respondent/Complainant
First Appeal against the order dated
16.01.2018 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellants : Sh. Sachin Ohri, Advocate
First Appeal No. 170 of 2018 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/opposite party (hereinafter referred as Op No.2) has filed the present appeal against the order dated 16.01.2018 passed in consumer complaint No. 444 dated 23.07.2015 by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed and Ops were directed to reconsider the claim of the complainant regarding medical reimbursement expenses for the period 10.7.2014 to 14.8.2014 in DMC & Hospital, Ludhiana within 40 days after receipt of the copy of the order and the due amount be paid to the complainant within 30 days thereafter, failing which the complainant will be entitled to interest @ 6% p.a. w.e.f. the date of complaint i.e. 23.7.2015 till payment. Order of her cancellation of policy was set-aside. Rs. 25,000/- were awarded as compensation and Rs. 10,000/- as compensation and litigation expenses.
2. Complaint was filed by the respondent/complainant (hereinafter referred as complainant) under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the Op on the averments that she is 65 years old lady and purchased a mediclaim policy No. 10037825 for the period 4.9.2013 to 3.9.2016 after paying premium of Rs. 49,195/-. The premium payment mode was single premium. The complainant was medically checked by the Medical Officer of the Op and after seeing their reports, the policy was issued. Suddenly in the month of July, 2014, the First Appeal No. 170 of 2018 3 complainant was suffering from fever and when it was not controlled, on 10.7.2014 she was taken to DMC & H, Ludhiana and was admitted there. Various medical tests were done by the Doctors in the hospital and it was stated that the temperature was due to decrease of count of blood platelets. She remained under treatment with that hospital from 10.7.2014 to 14.8.2014. The complainant spent a sum more than Rs. 6 Lacs in the hospital whereas sum insured under the policy is Rs. 4 Lacs. Whereas Ops denied the claim of the complainant vide letter dated 20.11.2014, therefore, the complainant had to pay the charges to the hospital from her own pocket. The repudiation of the mediclaim is illegal, null and void, malafide and against the principle of fair play. Alleging deficiency in services on the part of Op, complaint was filed by the complainant against the Op seeking directions to the Op to pay sum insured of Rs. 4 Lacs, Rs. 50,000/- for mental agony and harassment and Rs. 20,000/- as litigation expenses.
3. Upon notice, Ops appeared and filed its written reply taking preliminary objections that the complaint is not maintainable as there was no cause of action to file it; polices are regulated as per the terms and conditions of the policies; entire policy document including its terms and conditions were explained to the complainant and after understanding it, he filled the proposal form dated 3.9.2013; pre-policy medical tests were conducted. On the basis of disclosures made in the proposal form and as per the medical examination conducted on 9.9.2013, the Ops believed the information and the policy was issued. At the time of taking the First Appeal No. 170 of 2018 4 policy, the complainant/insured concealed the material fact regarding the pre-existing disease of Sacoidosis and Uvetis for which she had been on treatment for the last so many years but no such disclosure was made by her at the time of taking the policy. Reimbursement claim of Rs. 4 Lac was filed. In the discharge summary, it has been mentioned that she was admitted for treatment of Stomatitis with the symptoms of oral Ulcers and fever. She was further diagnosed as Oesophageal Ulcer with Chronic Gastritis, Pancytopenia with Febrile Neutropenia with known case of sacroidosis and uvetis. After receiving the claim, it was processed and rejected on the ground that pre-existing disease was not disclosed as per Clause 6.1 of the policy terms and conditions. Therefore, the claim was rightly repudiated. No deficiency in service on the part of Op. Complaint is without merit and they have also relied upon the judgment of 'Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.', (2009) 8 SCC 316 and 'Life Insurance Corporation of India Vs. Smt. Neelam Sharma' pronounced by the Hon'ble National Commission on 30.9.2014 that in case the statement made in the proposal form is untrue and incorrect, it is a sufficient ground to repudiate the claim. On merits, in parawise reply, the preliminary objections were reiterated, otherwise, issuance of the policy is admitted. Claim was rejected on the basis of record received by Op. It was revealed that the insured was suffering from a disease, which was pre- existing at the time of taking the policy. Therefore, according to Clause No. 6.1 of the policy terms and conditions, the claim was First Appeal No. 170 of 2018 5 not payable. It was rightly repudiated. There is no merit in the complaint, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit Ex. CA and documents Exs. C1 to C7. On the other hand, the Op had tendered into evidence affidavit Ex. RA and documents Exs. R-1 to R-10.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the learned District Forum vide impugned order allowed the complaint after referring the judgment of the Hon'ble National Commission reported as 2014 (3) CPC 24 (NC) "Bajaj Allianz Life Insurance Co. Ltd. and others Vs. Raj Kumar (Mrs.)"
that onus of proving that proposer/insured has withheld the material facts regarding pre-existing is on the Insurance Co. but the Op failed to prove the same, therefore, claim repudiation letter Ex. R-4 and letter Ex. C-5 for cancellation of the policy are liable to be quashed and claim is payable.
7. Aggrieved with the order passed by the learned District Forum, the appellants/Ops have filed the present appeal.
8. We have heard the learned counsel for the appellants and learned counsel for the respondent and have carefully gone through the record of the case.
Miscellaneous Application No. 515 of 2018 First Appeal No. 170 of 2018 6
9. There is delay of 13 days in filing the appeal and application in this regard has been filed to condone the delay of 13 days, which has occurred due to the reason that counsel before the District Forum received the copy of the impugned order on 5.2.2018 and thereafter the same was sent with his opinion to the appellant's office on 8.2.2018. Thereafter, officials of appellant office discussed the matter and on 19.2.2018 decided to file an appeal and on 22.2.2018 counsel was engaged to file an appeal. The counsel after preparing the draft sent the same for signatures and approval on 1.3.2018 and the delay was happened due to technical/official procedure, therefore, it is prayed that the delay is neither intentional nor deliberate, rather happened due to procedural formalities.
10. Keeping in view the reasons as stated in the application, there is sufficient cause to condone the delay of 13 days, therefore, it is expedient that the appeal should be decided on merits, therefore, the delay of 13 days in filing the appeal is condoned.
MAIN APPEAL
11. It was argued by the counsel for the appellant that as is clear from the evidence on the record, the complainant/insured was suffering from pre-existing disease, therefore, the claim was not payable, it was rejected by the Op. In this regard, he has referred to Clause No. 6.1 of the general terms and conditions, which reads as under:-
"6.1 Disclosure to Information Norm First Appeal No. 170 of 2018 7 If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non- disclosure of any material particulars or any material information having been withheld or if a Claim is fraudulently made or any fraudulent means or devices are used by the Policyholder or the Insured Person or any one acting on his/their behalf, the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited to the Company."
In the claim rejection letter, it was referred that due to non- disclosure of Sarcoidosis and Uveitis for the last many years, the claim was rejected. He has referred to the discharge summary of DMC & Hospital, Ludhiana in which history and examination has been referred as under:-
"65 years old female k/c/o sarcoidosis with uveitis presently admitted to DMCH with c/c/o oral ulcers & 6 days & fever & 4 days.
Fever - not a/w chills/rigors, moderate grade, used to r/w medication, no diurnal variation No H/o LOC, breathlessness No H/o any other complaints (bleeding tendencies)"
No doubt that in the history, it has been mentioned that she is known case of Sacroidosis with uveitis. Whether any observations made in the discharge summary is an evidence? In this regard, a reference can be made to the judgment of the Hon'ble National Commission reported in IV (2008) CPJ 89 (NC) "Life Insurance First Appeal No. 170 of 2018 8 Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. In view of the above referred judgment, the Op was required to lead independent evidence to prove that before taking the policy, the insured had taken the treatment for the disease referred above but Ops has not placed on the record any document, which may prove that the insured was not having the knowledge of the disease before taking the policy. In this regard, reference has been taken from judgment of the Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of pre- existing disease for which he had taken the treatment of disease."
12. It is also an admitted fact that before issuing the policy, the insured was medically examined by the Doctors of the Op. In case she would have been under treatment or had taken any treatment, she would have disclosed at that time but nothing as such was referred there at the time of filling the documents, with regard to the medical examination of the insured from the panel Medical Officer of the Ops. In this background, the Doctor, who recorded the history should have been examined by the Ops to cross-check on what basis he has made observations in the First Appeal No. 170 of 2018 9 history recorded in the discharge summary. In the absence of examination of the Doctor, who recorded the discharge summary, we cannot say what are the basis, otherwise, opportunity would have been taken by the complainant under what circumstances, these observations were recorded by the Doctor, therefore, mere averments in the discharge summary is not sufficient to conclude that insured was in the knowledge that she was suffering from the disease of sarcoidosis with uveitis. It is also matter of concern that in India number of people continued to live for number of years without notice of any disease for which they are the sufferer and it comes to light only during investigation or at the time of treatment. In this regard, a reference can be given to the judgment of Hon'ble National Commission reported in II (2014) CPJ 1340 (NC) titled as "New India Assurance Co. Vs. Rakesh Kumar" wherein it was observed that many times healthy persons are unaware of such silent ailments of diabetes and hypertension, which come to their knowledge first time during the health check-up camps or in any emergent situation, therefore, Op cannot apply a hard and fast rule to presume that complainant was suffering for long duration before taking the policy. Further no Doctor of Fortis Escort Hospital, Amritsar has been examined on what basis he has written that complainant was suffering from COPD for the last 2 years.
13. Therefore, we do not agree with the plea raised by the counsel for the appellants/Ops that the claim is not payable on the basis of pre-existing disease. We are of the opinion that the First Appeal No. 170 of 2018 10 District Forum has rightly appreciated the evidence on the record and has rightly come to the conclusion that the claim was wrongly rejected.
14. Sequel to the above, counsel for the appellant was unable to make out any point for admission of the appeal, the same is hereby dismissed in limine.
15. Appellant had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
16. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 08, 2018.
as