Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.409/02.12.2014
Ritu Singh W/o Sh. Netrapal Singh,
resident of D-177, Gali No. 5, Amrit Vihar
Burari, Delhi-110084
[Earlier residing at Flat No. 107-C, Block 3,
Sector-3, Bawana, DSIDC Flats, Delhi-110039
Earliest residing at D-177, Gali No.5, Ganga Vihar,
Near Ramlila Ground, Delhi-110094]. …Complainant
Versus
Max Bupa Health Insurance Company Ltd.,
39, 3° Floor, Samyak Towers, Pusa Road,
WEA, Karol Bagh, New Delhi-110005.
[Also at : B1/1-2, Mohan Cooperative Industrial
Estate, Mathura Road, New Delhi-110044] ...Opposite Party
Date of filing 02.12.2014
Date of Order: 21.08.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) - The complaint is filed by insured/complainant against insurer/OP alleging deficiency of services for want of providing cashless facility and later-on declining reimbursement of medical bills claim [in respect of hospitalisation and treatment of complainant under Medi-claim (Health) Insurance Policy] on the ground of pre-existing disease and concealment of such disease. Whereas the complainant and her husband never concealed any fact, every things asked was fairly disclosed, there is also recorded conversation of inquiry made from the complainant's husband, it was clearly stated that in the year 2008, the complainant had surgery of stone and thence she was normal through-out. It was in 2014, when all of sudden she had paid in abdomen, treatment was under-gone, expenses were incurred, reimbursement of bills was sought, which was declined by the OP. The complainant seeks reimbursement of medical bills of Rs.1,12,418/- along-with interest, compensation of Rs.20,000/- for harassment & agony, legal notice charges of Rs.11,000/-, apart from litigation costs and other appropriate relief under the circumstances.
1.2. The OP opposes the complainant by denying allegations of deficiency of services. The claim was rightly repudiated by letter dated 20.10.2014, since the complainant had significant past medical and surgical history of renal stone surgery in 2008, which complainant failed to disclose, which is not covered in terms of policy clause 4(a). It cannot be construed deficiency of services and complainant is not entitled for any claim/relief.
1.3 The pleading are also accompanying with documents, therefore, when narrating the case of parties, the requisite detail from document will also mentioned, so that material information remains at one place, instead of in piece-meal or at more than one place.
2.1. (Case of complainant) – That the complainant is a consumer as defined in Consumer Protection Act, 1986 and OP is Insurer providing cover to insurance risks under the policies sold by it to the customers/consumers. Sh. Netrapal Singh (husband of complainant) purchased a Medi-claim (Health) Insurance Policy in the year 2011 in the name of his son Lomash Kumar vide Insurance Policy No. 30023454201100 w.e.f. 18.02.2011 to 17.02.2011 for sum insured of Rs.2,00,000/. On renewal, the name of the complainant Mrs Ritu Singh was also added on 17.02.2012 under policy no. 30023454201201 w.e.f. 18.02.2012 to 17.02.2013 for sum insured of Rs.2,00,000/- (in which pre-existing condition of complainant was disclosed). However, in further renewal of policy, the delay of three months happened, as new policy no. 30220504201300 was issued for period from 27.05.2013 to 26.05.2014 for sum insured of Rs.3 lakhs, when the name of husband of the Complainant was added in the said policy. The said policy further stand renewed vide policy no. 30220504201401 w.e.f. 27.5.2014 to 26.05.2015 for all the said family members for sum insured of Rs.3 Lakhs and it was assured that all ailments were covered after three months of purchase of the policy. The complainant was given loyalty reward voucher by OP in the name of her husband for not making any claim.
2.2. On the night of 09.06.2014, the complainant felt pain in her stomach and she was taken to doctor, who opined that pain may be due to stone, it needs through check-up. On such advises received, the complainant visited RG Stone Urology and Laparoscopy Hospital, Pitampura, Delhi on 10.06.2014, where there was ultra sound, scan of KUB region and she was also referred to SARAL Diagnostic on 12.06.2014, where her NCCT & CECT KUC was conducted, the ultra sound and scan of KUB region was repeated on 14.06.2014. The complainant also visited Max Hospital at Shalimar Bagh, where they made request to OP for cashless treatment facility but it was refused by the OP, therefore, the complainant approached St. Stephen Hospital on 24.06.2014, where further tests were conducted including X-ray, Serology, Haematology and other diagnostic tests and study was conducted. The complainant keep on visiting St. Stephen Hospital till 13.09.2014 regularly, she also kept on spending on medicine prescribed, travelling expenses and other treatment expenses.
2.3. On 25.09.2014 the complainant again visited RG Stone Urology and Laparoscopy Hospital, Pitampura, Delhi, she was given medical advice and accordingly, she was admitted in the hospital from 25.09.2014 to 29.09.2014, during that phase various tests were conducted, apart from medical treatment.
2.4. The complainant applied by furnishing claim form dated 10.10.2014 for reimbursement of bills of Rs. 1,12,468/- (consisting hospital expenses of Rs. 91,905/- and other expenses of Rs. 20,563/-) to OP, being covered for insurance benefits but OP repudiated the claim by informing on telephone to complainant’s husband Sh. Netrapal Singh, which was uncalled for and the claim was repudiated without any cogent or plausible reasons, which is exhibiting that OP is trying to wriggling out of its legal duties and obligation under the policy. In fact, ground for repudiation was not at the avail of OP as it took false plea that complainant was already suffering from the disease since 2008 and this stand was taken by the OP on the basis of discharge summary, wherein it was mentioned that complainant/ patient was operated upon for renal problem in 2008, which was disclosed by the family members of the complainant.
In fact in 2008, the complainant has suffered from that ailment, she was operated upon and thereafter she did not require any treatment as nothing remained continued, which was also informed to OP by email dated 11.11.2014, it was acknowledged by the OP.
2.5. Since the complainant claim was not reimbursed, thus she sent legal notice dated 28.10.2014, it was served upon the OP but it failed to comply the same, that is why the present complaint. The acts and conduct of OP amounts to deficiency of services and complainant is entitled for reimbursement of medical bills, compensation, etc as OP failed to honour the valid claim. That is why, the complaint under the Consumer Protection Act, 1986 has been filed.
2.6. As the OP failed to provide proper services as such OP is liable to pay medical bills amount of Rs. 1,12,468/- with interest, compensation of Rs. 20,000/-, as damages/compensation for suffering harassment, hardship, agony etc., legal notice charges of Rs.11,000/-, costs/litigation expenses and other appropriate relief.
2.7. The complaint is accompanied with copies of medi-claim health insurance policies w.e.f. 18.02.2011 onwards till the last policy, which was upto 26.05.2014, insurance certificate, premium receipts, legal notice dated 28.10.2013 with postal receipt, copy of letter dated 03.11.2014 while disallowing the claim, email dated 11.11.2014 to OP, letter of claim and claim form with discharge summary receipts and bills, clinical reports etc.
3.1 (Case of OP)- The OP opposes the complainant by denying allegations of deficiency of services, it does not make out case of the complainant. It is a false complaint. The complaint is without cause of action against OP. The complaint is filed to harass and humiliate OP as complainant has least concern for sanctity and dignity of judicial process; the complainant has concealed material facts from the Forum and also misrepresented the material facts, therefore, complaint is not maintainable. There is not a single document to substantiate her case against the OP.
3.2. The initial policy was issued in the name of original policy holder Sh. Netrapal Singh and complainant was also insured under the policy, the terms and conditions were agreed of on own volition and free consent, therefore, the parties are governed by terms and conditions of the policy. The initial policy was w.e.f. 18.02.2011 to 17.02.2012, which was renewed w.e.f. 18.02.2012 to 17.02.2013 but there was no renewal of that policy as period of three months elapsed and then a fresh proposal form was filled in, a new policy was issued w.e.f. 27.05.2013 to 26.05.2014, which was renewed from 27.05.2014 to 26.05.2015.
3.3. A request for cashless facility was received, since complainant was diagnosed with right non-functioning kidney with multiple stone on 16.06.2014, she was to undergo laparoscopic right nephrectomy, however, considering the nature of illness, it could not be ascertained whether or not the complainant was suffering from kidney stone since inception of policy or because of lack of time, urgency involved and lack of document, the pre-authorisation request was declined but complainant was asked to submit the claim form. On 20.09.2014 another request was received from St. Stephen Hospital, however, the pre-authorisation was refused on the same reasons (it is relevant to mention here that in reply OP states that letter was annexed as Annexure-C but it was not filed with the reply nor subsequently).
3.4. The claim was filed on 16.10.2014 for reimbursement of the amount, however, it revealed and came to the light that complainant had history of kidney stone since 2008, for which she had undergone surgery for right renal stone in 2008. The OP reproduces the contents from the discharge summary, which reads as “Significant Past Medical & surgical History - k/c/o hypothroidism and h/o right renal stone surgery in 2008”. It is, therefore, very much clear that the
complainant was suffering from pre-existing disease which she had not disclosed at the time of policy inception. The claim of the complainant was not allowed and it was repudiated vides repudiation letter dated 20.10.2014 on the ground which reads as -
“As per the discharge summary received the patient is suffering from the said disease/ailment since 2008 year and underwent the surgery as well therefore it is a pre-existing condition and it was also not disclosed at the time of policy inception hence claim stands denial as in terms of insurance policy clause 4 (A).” (it is again relevant to mention here that in reply OP states that repudiation letter dated 20.10.2014 was annexed as Annexure-E but it was not filed with the reply nor subsequently).
3.5.1. The proposal form was filled in 2011 and again in 2013, the complainant was specifically asked questions relating to medical history under clause 6 of both proposal forms but the questions were answered in negative, which are annexed as Annexure-F to the reply (whereas as per record the proposal form of 14.11.2011 is annexed as Annexure-F but copy of other proposal form of 2013 has not been furnished). There is exclusion clause applies since the complainant was having pre-existing disease, which reads as follows:-
“There is exclusion clauses when insurer would not liable to pay any amount, which reads as : Exclusions- We shall not be liable under this Policy for any claim in connection with or in connection with or in respect of - (a) Pre-existing diseases-
Benefits will not be available for pre-existing Diseases until 48 months of continuous coverage have elapsed since the inception of the first policy with us.”
3.5.2. The OP derives reasons for above, while reply upon the case as mentioned in the reply, the same are :-
(a) Satwant Kaur Sandhu Vs.New India Assurance Co. Ltd. (2009) 8 SCC 316-
'when information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known.
Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer. .
" a medi-claim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations".
Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information."
Para 29- "Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated."
(b) Jaspreet Singh Vs ICICI Home Finance Co. Ltd., Jalandhar, RP No. 113 of 2013, held that the person approaching the court and seeking relief must come to the court/forum with clean hands.
Faquir Chand Gulati Vs. M/s. Uppal Agencies P. Ltd. & Anr. SLP (C) No. 18225-18226/2011 dod 14.8.2011 "it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be head on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of U.P. (2010) 2 SCC 114, the first two paragraphs of which are extracted below:
For many centuries Indian Society cherished two basic values of life i.e. "satya" (truth) and "Ahinsa" (non-violence) Mahavir
Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. .
However, post-independence period has seen drastic changes in
our value system. .
The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.
2. In the last 40 years a new creed of litigants has cropped up.
Those, who belong to this creed to not have any respect for truth.
They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants. the courts have. from time to time. evolved new rules and it is now well established that a litigant. who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
(c) United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, Civil Appeal No. 6277/2004 -"It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be Interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract, the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment."
Further, "It is possible that an insured may sustain loss in technical terms of the criminal law, but no relief can be given to him unless his case is covered by the terms of the policy. It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression as defined in the policy.
3.6. Since the complainant has not disclosed material information at the time of availing herself of the policy, governed by terms and conditions thereto, she is not entitled for any reimbursement as the claim is contrary to the terms and conditions of the policy especially the exclusion clause of 48 months to be computed from the first policy, which is w.e.f. 27.05.2013 to 26.05.2014. The complainant’s claim was also rejected as non-disclosure of pre-existing disease is against the principle of utmost good faith. It cannot be construed deficiency in services.
4. (Replication of complainant) - The complainant filed her detailed replication while opposing each and every allegation of OP that in order to valid claim, the OP is imputing false narration in the reply. The OP is relying upon proposal form of the year 2011 and its clause 6, whereas the complainant was not insured in the year 2011 vis-à-vis the complainant was insured in subsequent policy but the OP has intentionally withheld the authorisastion form of that year since all information were disclosed while furnishing the detail in the proposal form. The insurance cover on record clearly depicts name of Ritu Singh as well as pre-existing condition (i.e. urolithiasis). The OP is taking inconsistent stand, no documentary record is filed to support its own stand, the record is withheld intentionally to play fraud upon the complainant as well as on the Forum. The complainant had furnished all the information and record despite that false plea is taken in the reply, the complainant reserves her right for appropriate action under the law. The OP is falsely alleging that complainant is least concern for sanctity or dignity of the judicial process.
The case law, being relied upon by the OP, do not apply to the situation in hand. The complainant had furnished all requisite information on two occasions inclusive of her surgery of stone in the year 2008, thereafter the complainant was pursuing a normal life, consequently the reply is false. The complainant is entitled for the relief claimed.
5.1 (Evidence)- The complainant led her exclusive evidence by detailed affidavit, it is on the lines of her pleadings supplemented with the documents filed. She also filed her additional affidavit regarding three gift vouchers issued by OP.
5.2. The OP led evidence by filing affidavit of Shri Anand Chaudhary, Head (Legal) and it is reproduction of reply (to complaint) with case law and documents.
6. (Final hearing)- Both the parties have filed their written arguments and at the stage of oral submissions Sh. Netrapal Singh, Advocate for complainant and Sh. Suman Tripathi, Advocate for the OP presented their respective oral submission.
7.1 (Findings)- The contentions of both the sides are considered keeping in view the evidence of parties, the documentary record, case law presented, precedent apart from the contentions raised during final hearing. It does not require to reproduce their contentions, since the case of parties have already been detailed in paragraphs 2 and 3 above.
7.2. On plain reading of case of parties, the relationship of insured and insurer between the complainant and OP are not dispute nor about the policies issued from time to time, its tenure, premium paid, initially it was in the name of son of complainant and later-on the names go on adding. Moreover, complaint had filed a compact disc in support of her claim that nothing was suppressed from OP, the transcript of conversation recorded in CD [amongst the complainant's husband, Executive of OP and Doctor of OP] was also filed during oral arguments, its copy was also given to OP. This conversion is of at one point of time, while name of complainant was proposed to be added in the policy and after dialogue and inquiry about previous ailments, the name of complainant was allowed. The complainant's husband had disclosed all information inclusive of her surgery of removal of stone in 2008 as well as then leading normal healthy life without any medication or trouble. Then, policy was agreed and gift vouchers were also agreed to be issued.
Ld counsel for OP contended that in case point of concealment is not pressed for, even then claim prior to 48 months from the inception of first policy would not be payable, the first policy was from 30220504201300 wef 27.05.2013 to 26.05.2014, as previous policy was upto 17.2.2013 but it could not be got renewed, therefore, the policy no. 30220504201300 will be treated as first policy for the purposes of 48 months. Whereas, the complainant has reservation to the plea of OP that OP is impliedly admitting that there was no concealment of any fact, therefore, there is nothing left for OP to oppose the claim. It was a sudden pain to complainant and she was taken for treatment. In Manmohan Nanda Vs United India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 (para 69), it was held that object of seeking medi-claim policy is seek indemnification of a sudden illness or sickness, which is not expected o imminent and which may occur overseas. If the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy, a duty is cast on the insurer to indemnify the appellant for the expenses incurred there-under.
Thus, the dispute is in very narrow compass, whether or not clause 4(a) of the policy applies? or consequently whether or not the complainant is entitled for insurance claim?
7.3 By taking into account stock of all the material and circumstances, it is apparent that there is dispute of pre-existing disease as well as applicability of terms and conditions of policy. In order to adjudicate this dispute, it is appropriate mentioned the ratio of law laid down in Jagdish Vs LIC of India [FA no.1055/2003 dod 17.12.2007, decided by Hon'ble State Commission], in which similar and many parameters were discussed, its paragraph 10 is reproduced -
"Para 10 -Our conclusions on the meaning and import of words disease, pre-existing
disease for the purpose of medi-claim insurance policy, as under:
(i) Disease means a serious derangement of health or chronic deep-seated disease
frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the medi-claim policy.
(ii) Such a disease should not only be existing at the time of taking the policy but also
should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing
disease.
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis 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 controllable 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 hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to
his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like
blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi) Insurance company cannot take advantage of its acts of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause in-vokable.
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or
remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(viii) Day to day history or history of several years of some or the other physical problem
one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking medi-claim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix) For instance, to say that insured has concealed the fact that he was having pain in
the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
(x) Non-disclosure of hospitalization/or operation for disease that too in the
reasonable proximity of the date of medi-claim policy is the only ground on which insured claim can be repudiated and on no other ground.
7.4.1. First of all, the point/ issue of disease or pre-existing disease is being taken, which is also associated with the concealment of pre-existing disease. Since these issues are intermingled with each other, therefore, all of them are being taken together in this paragraph. The facts and features, as evidence on record, along-with the settled law already referred hereinabove, the following conclusions are drawn:-
(i) The complainant has filed insurance cover/ policy w.e.f. 18.02.2011 to 17.02.2012 and OP has also filed proposal form in respect of this policy. The policy holder is Sh. Netrapal Singh and policy was taken for complainant’s son Mr. Lomash Kumar but the complainant Ritu Singh was not beneficiary in the policy except as nominee.
(ii) The complainant has also filed insurance cover/policy w.e.f. 18.02.2012 to 17.02.2013 but OP has not filed proposal form in respect of this policy, OP has withheld the proposal form. The policy holder is Sh. Netrapal Singh and policy was taken for complainant Smt. Ritu and her son Mr. Lomash Kumar. The policy cover mentions pre-existing conditions (i.e. Urolithiasis) in respect of complainant.
It is apparent that complainant had declared about pre-existing condition and that is why it was so mentioned but the OP is projecting that it came to the light first time from the discharge summary dated 19.09.2014 . The OP is taking inconsistent stand despite having documentary record prior to filing of the reply to the complaint.
(iii) The complainant has proved conversation took place between complainant’s husband Sh. Netrapal, OP’s executive and OP’s doctor before inducting the name of complainant in the policy and transcript of that conversation is matter of record, which clearly demonstrate that complainant’s husband has disclosed everything about removal of stone of 2008 and thereafter leading of normal life by the complainant.
(iv) From the aforementioned conclusions (i) to (iii), it is crystal clear that complainant or her husband had not concealed any fact or information or material information about pre-existing condition of complainant prior to inducting her name as insured in the policy. The OP is having all such information but OP with-held that information and projected contrary to it.
(v) The stone was removed in the year 2008 by way of surgery to the complainant and then the episode of 9th June 2014 had happened all of a sudden when complainant suffered pain in stomach. In between she was leading normal life. There is no contrary evidence or documentary record by the OP that the complainant had been suffering from any disease after surgery of 2008 till the episode of 09.06.2014. There is a gap of about six years period from the year 2008 to 2014.
In view of the settled law, in Jagdish Vs LIC of India [FA no.1055/2003] especially clause (viii), when the complainant has been leading normal life after removal of stone in the year 2008, it cannot be treated as pre-existing disease. At the time of filling in the proposal form, the disease should have been either in continuation or in proximate of time immediately before the proposal form, this was also not existing in the present case when name of complainant was proposed to be inducted as insured.
(vi) By reading together (iv) and (v) together, it is a case of non-existence of previous disease, consequently the question of concealment of disease does not arise, therefore, the OP cannot take stand that principle of utmost good faith has been breached by the complainant. Otherwise, the complainant has disclosed pre-existing conditions in the record as well as there is also record of conversation, which depicts disclosure of every information by complainant.
(vii) In fact, the OP’s tendency is being exposed in this case to withheld material and relevant information, firstly the proposal form filled second time has not been filed despite mentioning it in the reply. Another Annexure E has also not been filed. It is not fair on the part of OP to say that complainant least concern for sanctity and dignity of judicial process and
(viii) at the stage of final hearing, the OP presented the submission that even if the point of concealment of material fact is not pressed for, the claim is otherwise not made out because of exclusion clause.
It appears that the complainant has produced compact disk along with transcript when complainant’s husband was inquired about the points of health, which clearly depicts that complainant has disclosed everything, that is why the OP was feel constrained by the record and this submissions was made. Many a times it happens that documentary record or electronic record leaves its footprints, the situation of this case is not an exception to it.
7.4.2. In continuation of above, now the other allied issue is in respect of exclusion clause. On plain reading of exclusion clause 4(a), it mentions about pre-existing disease period of 48 months from the inception of first policy that insurer will not liable to pay any amount, however, to invoke period of 48 months from the inception of first policy, the condition precedent is of ‘pre-existing disease’. Since it has already been held in para 7.4.1. above that there is no pre-existing disease in respect of complainant, thus, simply, exclusion clause 4(a) would not be applicable [In pleading/evidence exclusion clause is referred as clause no.4(a) by OP but in the terms and condition filed it is clause no.3(a), however, to avoid confusion, clause no.4(a) was repeated, hereinabove].
7.5.1. This order will remain incomplete unless other relevant points are not discussed. It is regarding repudiation letter dated 03.11.2014 (page 37 of complaint) and in this repudiation letter the OP had denied the claim on twin grounds on concealment of material fact as well as exclusion clause 4(a). Whereas the OP filed copy of repudiation letter but this letter is of 30.12.2014 (Annexure B to reply, which replica as on page 37 of complainant except date 03.11.2014). But in Para 12 of the reply, the OP mentions letter dated 20.10.2014 (as Annexure E but it has not been filed with the reply or otherwise). OP's pleading and evidence is inconsistent.
7.5.2. The OP has also attempted to mis-led by mentioning two aspects in its reply but filing single document in respect of one aspect and withholding document of other aspect. It is regarding proposal form of 14.02.2011 by projecting pre-existing disease was concealed by complainant but at that time complainant Ritu Singh was not insured, she was insured at later point of time by adding her name. The OP with-held authorization/proposal form for policy no.30023454201201 issued for period 18.02.2012 to 17.02.2013 in which Ritu Singh was added and alleged that there was concealment material fact but complainant had filed CD conversation of that contemporary time that all information were given and disclosed. Is it not that OP is projecting the things contrary to record with it to avoid its obligations but blaming the complainant? It is so.
7.6. By taking into account stock of all these facts, features, material and conclusions, it is further concluded as follows:-
(a) The documentary record proved by the complainant in the form of medical papers of the treatment rendered, reports and other medical bills are in sequence, which depicts that firstly complainant was examined and she was admitted in the hospital and she remained there as indoor patient for four days from 25.09.2014 to 29.09.2014, the medical expenses are pertaining to hospitalization and her treatment. The complainant has proved valid medical claim covered under the policy.
(b) Since, the circumstances are establishing case of medical treatment and expenses, which are covered within the medical policy as well as during the tenure of policy but OP failed to reimburse that amount of Rs.1,12,468/-. For want of reimbursement of valid claim by OP, it amounts to deficiency of services.
(c) The complainant made efforts for getting reimbursement of the claim, she could not succeed. But she faced all kind of harassment/trauma. Moreover, she also got served legal notice dated 28.10.2014 by mentioning notice charges of Rs.11,000/-. which was not bothered by OP.
In Kalu Ram vs Sita Ram (1980 RLR Note 44) it was held that when plaintiff before filing the suit, makes serious assertions in notice to the defendant, then defendant must not remain silent by ignoring to reply. If he does so, then adverse inference may be raised against him. It applies to situation in hand, that OP failed to reply the legal notice.
7.7.1 Thus, the facts on record proves case of complainant that she lodged valid medical claim of amount of Rs.1,12,468/-. Thus, complainant is held entitled for reimbursement of medical claim bills of Rs.1,12,468/-.
7.7.2. The complainant has sought interest, however, considering facts & features of case as well as complainant was deprived of her claim, she had to part with money in paying medical bills and other expenses, therefore, interest @ 8% pa would be justified for both ends, interest will be computed from the date of complaint till realization of amount in favour of complainant against the OP.
7.7.3 The complainant has also sought damages of Rs.20,000/- towards harassment and agony and legal notice charges of Rs.11,000/-, therefore, considering totality of circumstances of case of both sides especially concluded in aforementioned paragraph, damages claimed by the complainant are justified, accordingly the same are allowed as Rs 20,000/- in her favour and against OP. The legal notice itself specifies the charges of Rs.11,000/- as OP was informed of intended action, in case claim is not properly considered, she is also held entitled for legal notice charges of Rs.11,000/-. The costs are not specified, however, it could not be less than legal notice charges, therefore, cost of litigation are determined as Rs.15,000/-in his favour and against the OP.
7.7.4 The projection of OP are manifesting from the material on record to deny the valid claim of complaint. OP was knowing well that complainant's pre-existing condition was disclosed but to decline valid medical claim the OP projected that her condition was revealed first time from the discharge summary and OP as also expressed aspersion against the complainant that she least concerned about sanctity and dignity of judicial process. It is very serious. In fact, it OP, who projected wrongly and falsely. Although, renewal insurance cover mentions about pre-existing conditions of complainant. Had the complainant's husband not recorded the version, the OP would have not conceded to not to press for point of concealing of fact by complainant.
It may be repeated by the OP. Therefore, it needs to cure it. There is avenue of punitive damages. Whether, this case is a fit to award punitive damages, since complainant has claimed other appropriate relief against OP, she has not named punitive damages.
Question is, what is punitive damages and what is its purpose? The punitive damages (exemplary damages) are assessed and awarded in order to pinch respondent for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. Punitive damages are also imposed to reform defaulting party as well as to deter other from indulging in such wrongs. Punitive damages are generally given in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials.
It needs to refer the evidence on record. The complainant and her husband had furnished all requisite information, it was in possession of the OP despite it, OP projected that there was pre-existing disease or it was not disclosed or it came to light from the discharge summary and had there been not mentioned in discharge summary, the OP would not have that information. Further, OP mentions that proposal form of 2013 has been filed with the reply besides proposal form of 2011 but proposal form of 2013 was not filed, even complainant took exception to it in her rejoinder, even than it was not filed. The repudiation letter was mentioned of different date in the reply but OP filed the letter of another date and complainant was issued letter of third date. The OP is a professional institution/Insurance company. It was not supposed to indulge in such manner nor to repeat such things. Thus, it is fit case to award punitive damages. It can be awarded, since the complainant also claims other appropriate relief against OP. Thus nominal punitive damages are awarded and the same are quantified as Rs.10,000/- in favour of complainant and against OP, keeping in view all circumstances.
7.7.5 Accordingly, the complaint is allowed in favour of complainant and against the OP to reimburse medical bills amount of Rs.1,12,468/-along-with simple interest @ 8%pa from the date of complaint till realization of amount; besides to pay damages of Rs.20,000/-, legal notice charges of Rs.11,000/-, costs of Rs.15,000/- and punitive damages of Rs.10,000/- to complainant.
OP is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be 10% per annum on amount of Rs.1,12,468/- (instead of 8%pa)..
8. Announced on this 21st August 2023 [श्र!वण 30, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
