Shri Partha Kumar Basu, Hon’ble Member :
The instant petition is regarding a dispute about a matter of health insurance with a prayer from the complainant against the OPs for reinstatement of the policy and a compensation for mental agony along with cost. Since there is no mention in specific, hence the complaint was admitted for adjudication u/s 35 of the Consumer Protection Act 2019.
The case has been running on contest by OP1 and OP2 who are the contesting health Insurance Company and the PSU Bank through which said policy was taken. The erstwhile taken over Insurance Company OP3 got expunged as per order no 5 dated 11.05.2022.
The case of the complainant as averred is that the petitioner was insured under a Group Medical Health Insurance policy taken on 19.11.2015 from the Insurer OP3 Company through OP2 Bank platform which was subsequently taken over by the OP1 Insurer company. A claim for hospitalisation from 21.02.2020 to 06.03.2020 was lodged by the complainant which was repudiated due to non-discloser of pre-existing disease of PTCA during 2008 i.e. before commencement of the policy and the policy was terminated on 19.05.2020. It is the case of the complainant that no copy of proposal form was supplied to him but from the enrolment form that was provided to him by email contained a query that during last 5 years before issuance of the policy i.e. between 2010-15 whether any disease pre-existed. The complainant claims that the details of PTCA was duly mentioned in the proposal form which took place in 2008 and consequently the allegation of non-discloser was denied. The complainant brought into record the Award dated 24.03.2021 from Insurance Ombudsman wherein the OP1 failed to show any proposal form on the ground having not received such document from OP2 Bank while taking over the policy. Hence the complainant was awarded by insurance ombudsman to admit the claim with all applicable deductions / exclusions / ceiling / limitations and reinstatement of his health Insurance policy with all continued benefits. But though the complainant received the claimed amount as mentioned in the said Award but subsequently received information from OP1 Insurer that the policy has been discontinued from 15.04.2020 which took place before the termination of said policy dated 19.05.2020. Thereafter another policy was proposed by the Insurer with an annual premium of Rs..26,612.54/- in lieu thereof against the existing policy with annual premium of Rs. 6,811.97/-. It is also alleged that not only the premium in the newly offered policy is 4 times high but also having a sizeable curtailment in the facilities on account of room rent, type of coverage of ailments like cancer, outdoor treatment limit of Rs,2,500/- per annum, ambulance charges of Rs.2000/-, non- coverage of heart ailment and cost sharing upto 30% on specified illness etc. The complainant being 65 years of age, a retired person diagnosed with cancer and without any other benefit like pension, left lurched in want of continuation of existing policy. The complainant prayed for reinstatement of existing policy with continued benefits along with Rs.2 lakhs as compensation and cost of litigation. In support of his petition the complainant exhibited the policy certificates for the period 2015-16 & 2019-20, policy termination e-mail dated 19.05.2020, enrolment form dated 19.11.2015, award copy from Insurance Ombudsman, another complaint copy filed before the Consumer Affairs department, sample proposal form and other annexures from A to I.
In their written version of OP2, it was contended that the bank has no liability after discontinuation of their collaboration with health Insurance company, since no extension of collaboration was subscribed by them. In their W/V, evidence on affidavit and BNA by OP1 it is contended that the award passed by Insurance ombudsman dated 24.03.2021 having complied with by making payment of the Insurance claim for Rs.60,752/- along with a compensation of Rs.2,65,483/- on 04.05.2021 and another payment of Rs.20,885/- on 01.09.2021. The OP-1 submitted that the concerned policy was a Group Assurance Health Plan i.e. a Group Insurance policy in nature, that has been discontinued and notified to the insured group, being a tailor made policy, duly hosted already in the public domain. As such the said policy is no more available. However, the OP-1 intimated the complainant for renewal and continuity benefit under another policy under the name and style of Optima Senior along with a permanent exclusion of coverage for heart ailment vide an e-mail of OP1 dated 29.06.2021. The annual premium of the proposed product is Rs.26,612.54/-. Since the complainant did not opt for the said policy hence no fresh policy was issued. It was further contended by the OP1 that the complainant submitted a proposal form dated 19.11.2015 for a Group Insurance policy with a sum assured of Rs. 5 lakhs where the policy holder subscribed his signature after agreeing to all the terms and conditions. The said policy was renewed from time to time and lastly till 18.11.2019 to 17.11.2020. It is the claim of the OP that a policy kit containing all relevant documents was received by the policy holder which was never refused within free look period. Subsequently, the claim of treatment of coronary syndrome i.e. TVD with growth in colon triple vessel disease and hypothyroidism was diagnosed during hospital admission from 16.02.2020 to 21.02.2020 which is a case of post PTCA. Query was raised by Insurer about PTCA before the complainant vide letter dated 14.03.2020 from which it got disclosed that the complainant had prior knowledge of PTCA Angioplasty in 2008 and hence the claim was rejected due to non-disclosure of good health declaration, as per policy terms and conditions. The complainant again lodged another claim for the hospitalisation during 21.02.2020 to 06.03.2020 for Colon Cancer along with Myocardial Infarction with Hypothyroidism. This claim was denied due to Insured having PTCA in 2008. The OP1 exhibited the documents from Annexure 1 to Annexure 15 containing ROC, claim settlement letters, public notice on withdrawal of group insurance policy, offer of alternative policy, enrolment form, policy certificate for 18.11.2019 to 17.11.2020, policy terms and conditions, discharge summary dated 16.02.2020, prescription dated 15.02.2020, query letter dated 14.03.2020, discharge summary dated 06.03.2020, repudiation letter dated 12.06.2020 and undated termination notice. However, the annexure no.11 which is a query letter dated 14.03.2020 is found mis-numbered as annexure no. 12, and the original annexure no 12 i.e. copy of denial letter dated 05.08.2020 was found as not enclosed, as claimed in the W/V.
The arguments as advanced by the respective advocates were heard in full read with all the records and documents. Before deciding the main question for consideration - whether the OP1 was right in repudiating the claim of the Complainant. To deal with this issue, we deem it appropriate to refer to the IRDAI rules in this respect. As per IRDAI circular no : IRDAI/HLT/REG/CIR/046/02/2020 dated: 10/02/2020 amended in respect of provisions of Guidelines on Standardization of Exc, by reference invited to the provisions of Guidelines on Standardization of Exclusions in Health Insurance Contracts vide Ref No. IRDAI/HLT/REG/CIR/177/09/2019 and Modification Guidelines on Standardization in Health Insurance vide Ref No. IRDAI/HLT/REG/CIR/176/09/2019 dated 27th September 2019, following Amendments were issued on the “Definition of Pre-Existing Disease (not applicable for Overseas Travel Insurance)”:-
“Pre-existing Disease means any condition, ailment, injury or disease:
- That is/are diagnosed by a physician within 48 months prior to the effective date of the policy issued by the insurer or its reinstatement
-
- For which medical advice or treatment was recommended by, or received from, a physician within 48 months prior to the effective date of the policy issued by the insurer or its reinstatement.”
It appears that the said health insurance policy was issued for the period 18.11.2019 to 17.11.2020 in the name of insured by the OP1 Insurance Company that was repudiated on 05.08.2020 for non-discloser of PTCA which is a pre existing disease. The Insurance Ombudsman vide award dated 24.03.21 published an award with a direction on the OP1 to admit the claim with all applicable deductions / exclusions / ceiling / limitations and reinstatement of health Insurance policy with all continued benefits. It is observed that though the claim amount was paid off, but the policy has not been reinstated and was rather offered for buying a new product with higher financial implication and reduced coverage, affecting the continual benefits adversely.
By noting the compliance part of the award by insurance ombudsman as advanced by the Ld. Advocates of both sides but without getting influenced with it. It is further observed that though the claim was repudiated due to non-discloser of material fact about the PTCA done in 2008 but the factum part of the allegation does not get established as no proposal form was exhibited by the insurance company or any other supporting document thereof. Mere evidence on affidavit and counter affidavit do not carry much evidentiary value without supporting document. In absence of any cogent proof, the defence of OP1 hence does not get established. As such, there is no other way out but to rely upon the sole available document namely the enrolment form which was exhibited by the complainant himself from where it is apparent that the illness on account of PTCA did not take place during preceding 5 years prior to commencement of the policy in 2015. The complainant was asked in the standard format for a declaration upto 5 years thereby covering upto 2010 only, whereas the PTCA was done in 2008. Therefore as per exhibits from both the sides, there is nothing to show about existence of any disease in those 5 years i.e. from 2010 to 2015. Moreover, as per circular of IRDAI, a pre existing disease is to be reckoned upto preceding 48 months only as per amended circular of 2020. Hence the claim of the OP1 Insurance company about non-discloser of any ailment during last 5 years or for that matter during last 4 years as per IRDAI Policy does not get established as the same was never asked for, either by any communication from OPs nor as per the standard format of the enrolment form of the Insurance Company. During exchange of questionnaires and replies between contesting parties it is observed that the OP1 has not been able to provide either proposal form or any document in support of their claim about non disclosure of PED by insured nor any fresh piece of fact in contrary crept in. Neither the OP1 has been able to exhibit the completed proposal form, rather the complainant exhibited a sample copy of proposal form as per exhibit ‘I’ annexed with their evidence, that the OP1 insurance company could never deal with, except simple denial.
Moreover, not only the allegations of non-disclosure could be connected by the OP1 insurance company with the admitted position of the pre-existing disease beyond allowable time limit of 48 months through any documentary evidence, but also it can be dovetailed from the decision of Hon'ble Supreme Court in the Civil Appeal No. 8245 of 2015 titled Sulbha Prakash Motegaoneker v. Life Insurance Corporation of India, decided on 05.10.2015, that wherein, it was observed that suppression of information regarding any pre-existing disease, if it has not resulted in death or has no connection to cause of death, would not disentitle the claimant for the claim.
Thus the complaint’s petition is allowed on account of proven case of unfair trade practices being carried out by the opposite parties for not providing the facilities to the complainant as per extant terms & conditions of the policy. The complainant a insured for continuous 8 years a superannuated senior citizen suffered from a mental pain & agony at the hands of the opposite parties. The act & conduct of the opposite parties amounts to deficiency in service and the complainant is required to be compensated in accordance with law.
Though the OP1 Insurance company is liable for reinstating the terminated policy but since the same is a group insurance policy that has already been discontinued and notified in the public domain, hence the OP1 Insurance company is liable for providing another health insurance policy with all continued benefits that the complainant had been enjoying, without any additional financial implication or reduction of any of the facilities.
In our considered view the complainant is also entitled for a compensation alongwith cost.
Hence, it is
ORDERED
That the case is thus disposed of with following directions :-
- The terminated health Insurance policy of the complainant be replaced with another equivalent health insurance policy by OP1 immediately with all continued benefits as specified under the same policy terms & conditions without reduction in the quantum of Sum Assured or existing facilities including cumulative bonus or escalation in the rate of annual premium except minor adjustments.
- The OP1 is directed to make payment of a compensation to the tune of Rs. 10,000/- (Rs. Ten Thousand) only.
- The OP1 is directed to make payment of cost of the litigation expenses for Rs. 5,000/- (Rs. Five Thousand) only.
Compliance of all the above orders be made within a period of 45 days from the date of this order in default to attract a simple interest @ 10% per annum on all the payments till the date of actual compliance.
The complainant shall be at liberty to put the entire order into execution if the above orders are not complied by the OP1 within stipulated timeframe.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment
Let a plain copy be given to the parties free of cost as per CPR.
The final order shall be available at the following website www.confonet.in.
Dictated and corrected by me.
Member
