DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 488 of 06-11-2013

Decided on 18-03-2014

Ashok Kumar son of Sh. Sant Ram, aged about 43 years R/o near Kanya Pathshala School, Rampura Phul, Tehsil Phul, District Bathinda.

…...Complainant

Versus

Medi Assist India TPA Limited, Team LIC, Sri Krishna Areade, 47/1, 9th Cross, Ist Main Road, Sarakki Indl. Layout, 3rd Phase, J.P. Nagar, Bangalore through its Managing Director.

Life Insurance Corporation of India, Divisional Office, Ludhiana, through its Senior Divisional Manager

Life Insurance Corporation of India, Jeevan Jyoti Building, Bibiwala Road, Bathinda, through its General Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Smt.Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

For the Complainant : Sh. Ritesh Singla, counsel for the complainant.

For the opposite parties : Sh. Inderjit Singh, counsel for the opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that he purchased a health plus policy from the opposite parties vide policy No. H030/301870066 on 4-12-2009 commencing w.e.f. 31-12-2008 to 31-12-2036 after paying the requisite premium amount of Rs. 19,500/- having sum assured of Rs. 5.00 Lacs and other benefits. The premium was payable annually and the complainant has been depositing the premium regularly. The complainant fell ill due to chest pain/heart problem and was got admitted in Medanta, The Medcity Hospital on 21-10-2012 where he remained admitted and treated upto 29-12-2012. The complainant undergone the treatment for CAD, HTN, DVD, Recent TWMI, Type 2 DM. The complainant lodged the insurance claim with the opposite parties and furnished all the requisite documents to them including his medical treatment record for the reimbursement of the amount of insurance claim. The complainant alleged that he furnished all the requisite documents to the opposite parties as required by them from time to time and has been requesting them to make the payment of the insurance claim. The opposite parties vide their letter dated 19-2-2013 repudiated the claim of the complainant on the ground that he was suffering from diabetes prior to the date of purchase of the policy in question. The complainant alleged that the said repudiation letter is totally wrong, illegal, null and void and inoperative against the rights of interest of the complainant and is liable to be set aside. The complainant alleged that he was not suffering from any such problem. He was perfectly alright and all the tests got conducted by the opposite parties before issuing the policy and they were found normal. The complainant suffered from the problem of diabetes only 7 months prior to the date of his admission in the hospital i.e. in the year 2012, after a considerable long time from the date of purchasing the policy, but in the report of Medanta, while recording the past history of the complainant, duration of ailment/diabetes was inadvertently mentioned as 7 years instead of 7 months, which was purely a clerical mistake and the complainant has also obtained the certificate in this regard from Dr. A K Dubey, Medical Superintendent, Medanta, The Medicity on 17-1-2013 and submitted the same to the opposite parties alongwith duly sworn affidavit stating therein that he was not suffering from any ailment/illness including diabetes prior to the date of purchasing the policy, but despite that, the opposite parties did not pay any heed to the requests of the complainant. The complainant further alleged that even after receiving the repudiation letter, he approached the opposite parties time and again and requested them to make the payment of insurance claim, but to no effect. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to make the payment of insurance claim to the tune of Rs. 5,37,500/- as per terms and conditions of the insurance policy and pay him compensation and cost.

The opposite party No. 1 filed its separate written statement and admitted issuance of policy in question, but pleaded that the commencement of the policy is 31-12-2009 and not 31-12-2008. The complainant has concealed the true and material facts regarding his pre-existing disease, which was well within his knowledge, so his claim is not payable. The complainant has not disclosed the fact regarding pre-existing disease i.e. diabetus mellitus (DM2), which he has been suffering for the last more than seven years. This came into the knowledge of the opposite parties when the complainant submitted his claim regarding the hospitalization. From the perusal of record, it came to notice of opposite party No. 1 that attending doctors of Medanta hospital, in the past history of complainant has mentioned that the patient is known case of DM2/HTN CAD (DVD) and duration of disease for the last seven years. The claim has been processed and investigated by the expert of opposite party No. 1, being third party administrator of opposite party Nos. 2 & 3, and has rightly been repudiated vide letter dated 19-2-2013 by it. The opposite party No. 1 has admitted that the complainant has submitted the claim papers. The complainant was admitted in Medanta, The Medcity Hospital on 21-10-2012 with complaints of chest discomfort. As per medical record submitted by the complainant himself he is a known case of diabetus mellitus. This fact was not disclosed by the complainant at the time of filling the proposal form and if it has been disclosed at the proposal stage, the health policy would have been regretted. Hence, the claim is rightly repudiated under H01, M02 and L00-5. The opposite party No. 1 has further pleaded that the complainant submitted the false affidavit dated 16-1-2013 with the Medanta, The Medcity Hospital authorities and managed to get a certificate from that hospital to the effect that infact he has disclosed to the hospital authorities that he is suffering from diabetes for the last seven months but the hospital authorities inadvertently has mentioned the same to be 7 years. The story is after thought.

The opposite party Nos. 2 & 3 filed their joint written statement and admitted that the policy in question has been issued, but the commencement of the policy is 31-12-2009 and not 31-12-2008. The opposite party Nos. 2 & 3 have pleaded that the policy has been issued as per its terms and conditions which have been explained to the complainant at the time of submitting the proposal form and thereafter detailed policy containing detailed terms and conditions were duly supplied to the complainant. The opposite party Nos. 2 & 3 have further pleaded that contract of insurance is a contract of 'Uberima Fides” i.e. utmost good faith where both the parties are supposed to disclose each and every fact correctly and since the complainant has concealed the true and material fact regarding pre-existing disease which was within his knowledge, his claim was rightly repudiated. The opposite party Nos. 2 & 3 have further pleaded that as per the claim papers submitted by the complainant, he was admitted in Medanta, The Medcity Hospital on 21-10-2012 with complaints of chest discomfort. He is known case of diabetus mellitus as per medical record submitted by the complainant himself. If it has been disclosed at the proposal stage, the health policy would have been regretted. The claim of the complainant was rightly repudiated under H01, M02 and L99-5 i.e. misrepresentation of past history diabetus mellitus. The opposite party Nos. 2 & 3 have further pleaded that the complainant has submitted false affidavit dated 16-1-2013 and managed to get certificate to the effect that infact, he has disclosed to the hospital authorities that he is suffering from diabetes for the last seven months, but the hospital authorities inadvertently has mentioned the same to be 7 years.

Parties have led their evidence in support of their respective pleadings.

Arguments heard. Record alongwith written submissions submitted by the parties perused.

These are undisputed facts of the parties that the complainant purchased a health plus policy from the opposite parties vide policy Ex. C-5 bearing No. 301870066 with date of commencement dated 31-12-2009 for a sum of Rs. 5.00 Lacs with annual premium of Rs. 19,500/- and due date of payment of last premium is 31-12-2036. The complainant suffered heart ailment and got admitted in Medanta, The Medcity Hospital, Gurgaon, on 21-10-2012 and was undergone the bypass surgery The complainant remained admitted in that Hospital from 21-10-2012 to 29-10-2012. Thereafter the complainant lodged the claim and furnished all the requisite documents to them including his medical treatment record, but the opposite parties repudiated his claim on the ground that complainant was suffering from diabetes prior to the date of purchasing the above said policy.

The submission of the learned counsel for the complainant is that the repudiation letter is totally wrong, illegal and against the rights of interest of the complainant and is liable to be set aside. The complainant was not suffering from any such problem of diabetes or any other ailment/illness prior to the date of purchasing of the policy in question rather he was perfectly all right and all the tests got conducted by the opposite parties before issuing the policy were also normal. The learned counsel for the complainant further submitted that in the report of Medanta, The Medcity Hospital, while recording the past history of the complainant, the duration of the ailment/diabetes was inadvertently mentioned as 7 years instead of 7 months which was purely a clerical mistake and the complainant then also obtained the certificate of clarification in this regard from Dr. A K Dubey, medical superintendent, Medanta, The Medcity Hospital on 17-1-2013 and submitted alongwith affidavit to the effect that he never took any treatment from anywhere for diabetes or any other ailment before purchasing the policy, to the opposite parties, but despite that nothing has been paid to him.

On the other hand, the submission of the learned counsel for the opposite parties is that the complainant submitted claim papers for the claim regarding his admission in Medanta, The Medcity Hospital on 21-10-2012 as he was suffering from heart ailment and as per record submitted by him, he was undergone bypass surgery and remained admitted in Medanta, The Medcity Hospital from 21-10-2012 to 29-10-2012. The opposite party No. 1 demanded some more information/documents from the complainant, but he failed to submit the medical record of diabetus mellitus type -2. After investigation done by the expert of Third Party Administrator i.e. opposite party No. 1, it came to notice that the complainant was suffering from diabetus mellitus for the last seven years as it has been mentioned by the attending doctor of Medanta, The Medcity Hospital in the past history of complainant. In this way, the complainant is suffering from pre-existing disease at the time of taking policy. The opposite party No. 1 required some more information/documents from the complainant vide letter dated 27-12-2012 regarding medical record of the diabetus mellitus type 2 i.e. pre-existing disease, he managed a certificate, by submitting false affidavit, from Medanta authorities to the effect that period seven years has wrongly been mentioned instead of seven months. The learned counsel for the opposite parties submitted that claim of the complainant has rightly been repudiated as he is suffering from pre-existing disease at the time of taking policy and he concealed this material fact.

The claim of the complainant has been repudiated by the opposite parties vide claim rejection letter dated 19-2-2013 Ex. C-16 on the ground that the insured is a known case of diabetus mellitus for last 10 years, on medication as per the available medical record enclosed by hospital authorities and this was not disclosed at the time of proposal. The pleading of the opposite parties is that in the past history of Medanta, The Medcity Hospital, the attending doctor has mentioned that the patient/complainant is known case of DM 2 and further mentioned that duration of disease is for the last 7 years. In this way, the complainant is suffering from pre-existing disease at the time of taking policy and he has given wrong information in his proposal form. A perusal of file reveals that the opposite parties have failed to produce on record even a single document to show that the complainant took any treatment even prior to admission in Medanta, The Medcity Hospital for diabetus mellitus whereas the plea of the opposite parties behind the rejection of claim of the complainant is that the complainant is suffering from diabetus mellitus for the last seven years. The complainant has placed on file Certificate Ex. C-15 issued by Medanta, The Medcity Hospital,which reads as under :-

“..Based on Affidavit, submitted by Mr. Ashok Kumar, admitted in Medanta – The Medcity on 21-10-2012, UHID No. MM00300753 and discharged on 28-10-2012. That Mr. Ashok Kumar is suffering from Diabetes Mellitus since last 7 months not from the last 7 years as mentioned.”

The said certificate has been signed by Dr. A K Dubey, Medical Superintendent, Medanta- The Medcity, Gurgaon.

The opposite parties have not placed any document on file to rebut this document of the complainant. Moreover, the insurance company got the medical check-up of complainant from Dr. Mohinder Singh vide Ex. OP-2/4 prior to the issuance of the policy. In the case in hand, the onus heavily lies upon the opposite parties to prove their allegation regarding pre-exising disease of the complainant. In this regard the support can be sought from the law laid down by the Hon'ble Supreme Court of India in case titled Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines and another, 2001 (1) CLT (SC) wherein it was held:-

“Deficiency in service-Burden of proof-The burden of proving the deficiency in service is upon the person who alleges it.”

As discussed above, in this case, the opposite parties have alleged that the complainant has not disclosed his pre-existing disease i.e. diabetus mellitus at the time of purchasing the policy in question, but they have utterly failed to prove their this allegation by any cogent and convincing evidence whereas the complainant has proved this fact by producing a certificate Ex. C-15 of Medanta, The Medcity, Hospital, Gurgaon, on file that Mr. Ashok Kumar is suffering from Diabetes Mellitus since last 7 months not from the last 7 years as mentioned. Hence, the evidence on which the opposite parties are relying has been amended by the issuing authority itself.

Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that there is deficiency in service on the part of the opposite parties in repudiating the genuine claim of the complainant and he is entitled to the reimbursement of the expenses incurred at Medanta, The Medcity Hospital, Gurgaon on his surgery/treatment for the period from 21-10-2012 to 29-10-2012 under the policy in question. The complainant has prayed for payment of the claim amount to the tune of Rs. 5,37,500/-, but no evidence/detail to this effect has been placed on file.

In view of what has been discussed above, this complaint is accepted with Rs.20,000/- as cost and compensation against all the opposite parties. The opposite parties are directed to pay the claim amount/reimburse the expenses incurred by the complainant on his surgery/treatment at Medanta, The Medcity Hospital, Gurgaon on his surgery/treatment for the period from 21-10-2012 to 29-10-2012, as per claim submitted by him, with interest @ 9% p.a. w.e.f. 19-2-2013 i.e. from the date of repudiation, according to terms of the insurance policy in question. The opposite parties are also directed to furnish the complete detail of claim paid to the complainant alongwith the claim amount.

The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order failing which the complainant will be entitled to further interest on the aforesaid claim + interest amount @ 9% p.a. till realization.

A copy of this order be sent to the parties concerned, free of costs and the file be consigned to the record.

Pronounced in open Forum

18-03-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh )

Member