Haryana

Ambala

CC/388/2021

Poonam Kansal - Complainant(s)

Versus

Chola Ms General Insurance - Opp.Party(s)

Rakesh Achint

24 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA

Complaint case no.	:	388/2021
Date of Institution	:	17.12.2021
Date of decision	:	24.03.2023

 

Poonam Kansal W/o Virender Kansal R/o House No.453/96 Preet Nagar, Ambala City.

          ……. Complainant.

                                                Versus

1. Chola Ms General Insurance through its authorized officer, New No.319 Old No. 154, Shaw Wallace Building, 2nd Floor Thambu Chetty Street, parry Corner Chennai.
2. Punjab National Bank erstwhile Oriental Bank of Commerce, Prem Nagar, Ambala City through its Branch Manager

                                                                                   ….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Rakesh Achint, Advocate, counsel for the complainant.

                             Shri R.K Vig, Advocate, counsel for the OP No.1.

                             Shri Arvind Goel, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.6,74,068/- (Rs.1,75,000/- paid to AMCARE Hospital Plus Rs.4,99,068/- paid to the Fortis Hospital) alongwith interest @ 18% Per Month from the date of billing till realization
2. To pay Rs.5,00,000/- as compensation for mental agony & sufferings and cost of travelling etc.
3. To pay Rs.21,000/- as litigation costs.

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant is having a Saving Account with OP No.2. On the request made by the official OP No.2 that they are in tie-up with OP No.1, the complainant and her husband obtained a Group Medi-Claim Policy No.2876/00042367/021/00 from OP No.1 valid for the period from 22nd March 2020 to 21st March 2021, on making premium of Rs.17,207/-. Hence the complainant and her family members were duly covered under the policy in question. The complainant was regularly paying the premium to the OP No.1 the OP No.2 and it was assured to the complainant that as and when the complainant required any kind of Medi-Claim, she will be provided cash less facility without any hassle. The complainant incurred health Problem and as such her family took her to the AMCARE SUPER SPECIALITY HOSPITAL, VIP Road Zirakpur, Punjab on 26.11.2020 at about 01.30 pm, vide IPD No. 7045 MR No. MR/20/015070. The complainant remained admitted in the said hospital from 26.11.2020 to 02.12.2020 and thereafter she was shifted to FORTIS HOSPITAL Mohali and remained admitted there for treatment for the period from 02.12.2020 to 14.12.2020. She was discharged from Fortis hospital Mohali on 14.12.2020 with the further advice to be under medication & conditions regular visits in the hospital. The family of the complainant spent more than 10 Lacs for the treatment & medicines bills & other expenses during the indoor treatment from 26.11.2020 to 02.12.2020 with AMCARE Hospital and 02.12.2020 to 14.12.2020 with Fortis Hospital Mohali & had spent further more even after discharge. During her stay at AMCARE Hospital & FORTIS Hospital the representatives of the OPs were informed regarding the said medical emergency. The Officials of OP No.2 suggested the husband of the complainant to approached OP No.1. When the family of the complainant approached OP No.1 through the hospital, OP No.1 refused to pay the cash less facility. Feeling no other way the family of the complainant, through their own channel deposited the money with the hospital for the treatment of the complainant i.e. Rs.1,75,000/- raised by the AMCARE HOSPITAL and Rs.5,24,067.53 raised by the Fortis Hospital Mohali totaling Rs.6,74,068/-.  Thereafter the complainant again deposited the documents with the OPs as per the Medi-Claim policy but to no avail.  Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that the present complaint is misconceived, not tenable and is an abuse of the process of law;   the complainant has not approached this Commission with clean hands and suppressed the material facts; there is no cause of action; neither there was any deficiency nor any unfair trade practice was adopted by OP No. 1 etc. On merits, it has been stated that as per patient treatment record it was found that the patient is a K/C/O hypertension since 10 Years & Diabetic since 3 Years. As per medical records, she was provisionally diagnosed & discharged on 02.12.2020. She was again admitted in Fortis Hospital, Mohali and was diagnosed with acute right ileodistal DVT with fever with cough, loss of appetite, generalized weakness & breathing difficulty since 14.11.2020 & discharged on 14.12.2020.  The insured Varinder Kumar had lodged reimbursement claim of her wife Poonam Bansal for an amount of Rs.6,74,068/- which was processed as per Policy terms and conditions & found to be non-admissible. The fact that the patient was suffering from hypertension since 10 years & Diabetic since 3 years as per history recorded in the documents submitted by her has not been disclosed in the proposal form while proposing for Insurance. In view of this non-disclosure of material information, the contract of Insurance becomes void & no claim is payable under this Policy. Thus, it is the complainant herself who is responsible for the non-payment of her claim and thus cannot be allowed to take benefit of her own wrongs.  Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with heavy costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to jurisdiction and maintainable etc. On merits, it has been stated that the insurance premium was received by OP No.1 who had  issued the policy to the complainant. The Group health insurance scheme was optional for account holders of OP No.2. The complainant's husband opted himself for insurance policy and the complainant instructed OP No.2 to debit the amount of Rs.17207/- from her account no 10402191014366 and on the instructions of complainant the amount of premium of Rs.17207/- was debited from this account on 19-2-2020 by OP No.2. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-21 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Shri Sujeet Kumar Sahu, Deputy Manager Legal of OP-1-Cholamandalam M/s General Insurance Company Limited as Annexure OP-1/A alongwith documents Annexure OP-1/1 to OP-1/8 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Sanjay Kumar, Branch Manager, Punjab National Bank, Arya Chowk, Ambala City as Annexure OP-2/A alongwith documents Annexure OP-2/1 and closed the evidence on behalf of OP No.2.
6.            We have heard the learned counsel for the parties and have also carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OP No.1.
7.           Learned counsel for the complainant submitted that by repudiating the genuine claim of the complainant on bald grounds, despite the fact that she took treatment in the hospitals, referred to above, during subsistence of the policy in question, the OPs have committed deficiency in providing service.
8.           On the other hand, Learned counsel for OP No.1 submitted that since the insured patient was suffering from hypertension and diabetics since 10 years and 3 years respectively, which fact stood concealed at the time of obtaining the insurance policy in question, as such, in view of this non-disclosure of material information, the contract of Insurance becomes void & no claim was payable under the policy in question.
9.           Learned counsel for OP No.2 submitted that it has no role whatsoever in repudiation of claim in question. He further submitted that the insurance premium was received by OP No.1 who had issued the policy to the complainant. He further submitted that Group health insurance scheme was optional for account holders of OP No.2. He further submitted that complainant's husband opted himself for insurance policy and the complainant instructed the OP No.2 to debit the amount of Rs 17207/- from her account no 10402191014366, which was debited from this account on 19-2-2020 by OP No.2.
10.           It is not in dispute that the complainant and her husband obtained a Group Medi-Claim Policy No. 2876/00042367/021/00 from OP No.1 valid for the period from 22nd March 2020 to 21st March 2021, on making premium of Rs.17,207/-. It is also an admitted fact that though the complainant took treatment in the  hospitals referred to above, from 26.11.2020 to 02.12.2020 and from 02.12.2020 to 14.12.2020, respectively,  and incurred total amount of  Rs.6,74,068/-, yet, her claim was repudiated by OP No.1 on the ground that from the medical treatment record it was found that the insured patient was suffering from hypertension and diabetics since 10 years and 3 years respectively, which fact stood concealed at the time of obtaining the insurance policy in question, as such, in view of this non-disclosure of material information, the contract of Insurance becomes void & no claim was payable under the policy in question.
11.           Perusal of repudiation letter dated 04.02.2021, Annexure OP-1/6 reveals that  the claim of the complainant was repudiated by the insurance company on the ground that “……On the perusal of documents, the insured is suffering from Hypertension since 10 years and Diabetic since 3 years as per the history recorded in the submitted document, this information is not disclosed in the proposal form while proposing for insurance. In view of this non-disclosure of material information, the contract of insurance becomes void and no claim is payable under this policy…”.  To justify this repudiation, OP No.1 has placed on record a letter head dated 26.11.2020 of some doctor, Annexure OP-1/2; discharge summary dated 02.12.2020, Annexure OP-1/3 of Amcare Super Specialty Hospital, Zirakpur and also discharge summary of Fortis Hospital, Annexure OP-1/4.    
12.           Under above circumstances, the first question, which falls for consideration before this Commission is, as to whether, there was any concealment on the part of the complainant, regarding any alleged pre-existing disease, while obtaining the insurance policy in question or not. Firstly, it is significant to mention here that admittedly, at the time of obtaining the insurance policy in question, the complainant was aged more than 60 years. Thus, when the OP No.1 was issuing the insurance policy, they very well knew that in this age group, a person may suffer from any lifestyle diseases and as such, in this situation, it was mandatory for OP No.1 to get the complainant medically examined from their empanelled doctors, before issuing the policy in question, especially when she was about more than 60 years of age, but they ignored the same.
13.           The next question that falls for consideration is, as to whether, OP No.1 has been to prove that the complainant was suffering from any pre-existing disease or not, it may be stated here that not even an iota of cogent and convincing evidence, in the shape of any medical record of the complainant, of any hospital, proving that she took treatment for the said alleged disease from any hospital/doctor before issuance of the policy in question has been placed on record by the OPs. Not even a single document has been placed on record by the OP No.1 to prove that before taking the policy, the complainant was having the knowledge of any disease and was taking the treatment for the same, be that it is hypertension or diabetes or any other disease. In case it is not so, then mere reference in the discharge summaries, referred to above, are not sufficient to come to the conclusion that the complainant had concealed any material facts regarding her any of the disease. Similar view was taken by the Hon’ble National Commission in 2011 CPJ 418 (N.C.) Life Insurance Corporation of India V/s. Ashok Manocha. Relevant part of the said order is reproduced hereunder:-

“…….. It is well settled that pleadings cannot be held as evidence and in the absence of any evidence in support of the case set up, the certificate produced by the Petitioner from the hospital is of no help to the Petitioner because as stated above the petitioner took no steps to prove the same; production of a documents is different from proof of the same….."

 

14.           In our considered opinion, it was required of the OP No.1 to lead any independent evidence of the treating Doctor of the alleged pre-existing diseases, to prove this fact. Our this view is further supported by the principle of law laid down by the Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder singh V/s. National Insurance Co. Ltd., decided on 24/01/2011 wherein it has been observed as under:-

"…. It has by now become a well settled proposition of law that recording of the history of a patient in the above stated manner, does not become a substantive piece of evidence unless a very cogent and convincing evidence has been brought on record to establish that insured was suffering from a pre-existing for which he had been taking treatment or remained admitted to some hospitals. The records or doctor of such a hospital should be proved/examined…”

15.           Not only as above, in "Life Insurance Corporation of India & Ors. V/s. Kunari Devi" IV (2008) CPJ 89 (N.C.)  it was held by the Hon’ble National Commission that history recorded in the hospital is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. Under above circumstances, it is held that the OP No.1 failed to prove its case that the complainant was suffering from any preexisting disease.
16.           The next question that falls for consideration is, as to whether,  OP No.1 has been able to prove its case that even the treatment taken by the complainant during subsistence of the policy in question, had any direct nexus with the said alleged pre-existing diseases or not? It may be stated here that though it has clearly been held above by this Commission that OP No.1 has not been able to prove that the complainant was suffering from any pre-existing disease, yet, to answer this question, we found that in the discharge summary dated 26.11.2010, Annexure C-1 also, having been issued by the AMCARE Hospital, the doctor concerned has clearly written that “….PATIENT PRESENT ILLNESS IS NOT RELATED TO PREEXISTING DISEASE…”.  In Sulbha Prakash Motegaonkar & Ors. Vs. LIC of India [Civil Appeal No.8245 of 2015] decided by the Hon'ble Supreme Court on 5.10.2015, although it was proved that the insured therein had concealed regarding his pre-existing disease (in the present case not proved) but he died on account of some other reason, even then the Hon’ble Supreme Court, allowed the consumer complaint while holding that the disease from which the insured died had no nexus with the pre-existing disease. Relevant part of the said order is reproduced hereunder:-

“…..We are of the opinion that the National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with his lumbar spondilitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified…….”

 

17.           In this view of the matter, it is held that in OP No.1 has also not been able to prove its case that the treatment taken by the complainant during subsistence of the policy in question had any direct nexus with the said alleged pre-existing disease. Even otherwise, the Hon’ble State Commission, Haryana in the case of LIC Vs. Sudha Jain, FA No.A-651 of 2006 decided on 31.10.2006, has held that “…..Malaise of hypertension, diabetes occasional pain, cold, headache, arthrit is 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 controlable 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 policy is hospitalised or operated upon for the treatment of these diseases or any other disease….”. It is therefore held that repudiating the genuine claim of the complainant, OP No.1 is deficient in providing service. From the perusal of final bill issued by AMCARE Hospital Annexure C-4, it is evident that complainant paid Rs.1,75,000/- to the said hospital from the perusal of Inpatient Summary bill issued by Fortis Hospital Annexure C-15, it is quite clear that complainant paid Rs.4,99,068/-, as such the insurance company, OP No.1 is liable to pay the said amount of Rs.6,74,068/- alongwith interest. It is also liable to pay compensation for the mental agony and physical harassment suffered by the complainant alongwith litigation expenses. 
18.           Since no deficiency in providing service has been proved on the part of OP No.2, therefore, the complaint filed by the complainant against it is liable to be dismissed.       
19.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and  allow the same against OP No.1 and direct it, in the following manner:-
    1. To pay the amount of  Rs.1,75,000/- paid to AMCARE HOSPITAL and Rs.4,99,068/- paid to the Fortis Hospital Mohali in total Rs.6,74,068/-incurred by the complainant on her treatment, alongwith interest @ 4% per annum w.e.f 04.02.2021 i.e the date of repudiation of the claim onwards.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.

  

The OP No.1 further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP No.1 shall pay interest @ 6% per annum on the awarded amount, from the date of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.File be annexed and consigned to the record room.

 Announced:- 24.03.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President