Delhi

New Delhi

CC/286/2014

Kanhaiya Lal - Complainant(s)

Versus

M/S. HDFC Ergo General Insurance - Opp.Party(s)

30 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC.286/2014

In the matter of:

KANHAIYA LAL

S/O LATE SH. SIATAL DASS KESWANI,

R/O C-3/45, FIRST FLOOR, PHASE-11,

ASHOK VIHAR, DELHI-110052                                   ……..COMPLAINANT

Versus

 

HDFC ERGO GENERAL INSURANCE CO. LTD.

AT GROUND FLOOR, AMBADEEP BUILDING-14,

KASTURBA GANDHI MARG, NEW DELHI-110001         ...........OPPOSITE PARTY

 

 

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

 

                                                                                                                                                 Dated of Institution :23.04.2014                                                                                                                                                                                Date of Order         :30.11.2022

O R D E R

BARIQ AHMAD, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in brief referred as CP Act). Briefly stated the facts of the case are that

an insurance policy called `Home Suraksha Plus` (herein after referred as policy) was purchased by deceased son of the complainant from the opposite Party (in short ‘OP”), wherein the complainant was named as nominee. Rs.9,38,650/- (Rupee Nine Lakh Thirty Eight Thousand Six Hundred Fifty only) and total premium was paid a sum of  Rs.24,981/-(Rupee Twenty Four Thousand Nine Hundred Eighty One Only).

2. It is stated that during the period of substance of the said policy, the insured Sh. Arun Keshwani` suffered a massive cardiac arrest/sudden Heart Attack on 20.05.2013. He was immediately taken to Pentamed Hospital, 7, Local Shoping Centre, Derewal Nagar, Gujranwala Town, Phase-IV, Delhi-110009 but he passed away. On 20.05.2013, Pentamed Hospital gave an opinion “Cardio Pulmonry Arrest”.
3. It is stated that since the complainant was named as nominee in the insurance policy as such the claim was lodged on 13.09.2013, with all the relevant/necessary documents.
4. It is stated that the claim was repudiated by the Insurance Company/OP stating that as per the case summary received from Pentamed Hospital, the son of the complainant/insured died due to “Cardio Pulmonary Arrest with Aspirated Vomitus”. It is stated that these ailments do not fall within the purview of the policy. The claim had been repudiated on the ground the cause of death of his son was not covered under `Major Medical Illness`.  It is submitted by the complainant that the reason of death was heart attack which was medically termed as `Cardio Pulmonry Arrest`.
5. It is stated that the complainant regularly and diligently kept following up the status of the claim, on 13.11. 2013 an email was sent to OP, reply was received on 15.11.2013 it was mentioned that the update will be sent to insured person/claimant. It is stated that the reason of rejection was itself malafide, arbitrary and  contradictory.
6. It is stated that the complainant after being left no choice, issued a legal notice dated 11.12. 2013 to the Opposite Party, which was duly received by the OP. The OP vide reply dated 27.12.2013 stating that the insured died of diseased `Cardio Pulmonry Arrest with aspirated Vomitus` which is not covered under the policy.
7. It is stated that after receiving the reply from OP, the complainant enquired about the medical terminology from the doctors who treated on the insured just before the death. The doctors have opined that the term as mentioned in the policy `Myocardial Infarction` is also used for `Heart Attack`. It was opined that `Myocardial Infarction` was part of cause of death of Sh. Arun Keshwani and issued a certificate on query report by Dr. Sharad Chandra of Pentamed Hospital. The claim of the complainant is still unpaid by the Insurer.
8. Feeling aggrieved, complainant has filed the present complaint alleging deficiency in service and unfair trade practice on the part of the OP and seeking relief that OP be directed to pay a sum of Rs.938,650/- (Rupees Nine Lakh Thirty Eight Thousand Six Hundred Fifty only) along with compensation amounting to sum of Rs.1,00,000/- (Rupees One Lakh Only) on account of mental agony, harassment, pains and sufferings and also paid a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards litigation  charges.
9. Notice of the complaint was issued to OP who entered appearance and filed written statement stating that there is no deficiency in service on the part of the Opposite Party.  It is stated that complaint filed without any cause of action, allegation against the OP is frivolous.
10. It is contended that the insurance company repudiated the claim of the complainant on 28.11.2013,  on the ground that as per the case summary received from Pentamed Hospital, the son of the complainant/insured died due to “Cardio Pulmonary Arrest with Aspirated Vomitus”. It is stated that these ailments do not fall within the purview of the policy. The claim had been repudiated on the ground the cause of death of his son was not covered under `Major Medical Illness`.  It is submitted by the complainant that the reason of death was heart attack which was medically termed as `Cardio Pulmonry Arrest`.  It is alleged by the OP that there is a violation of condition No.3 of the terms and conditions. Therefore, the complaint is not maintainable and is liable to be dismissed.  It is stated that on receiving the claim no.C291813000396 dated 28.08.2013 with OP.  It is undisputed that complainant son had taken the policy bearing No.2918200117818700000 in favor of Late Sh. Arun Keshwani, who was the original policy holder, effective for the period from 24.08.2011 to 23.08.2016, under the said insurance policy the sum insured in the head of  “Major Medical Illness” during the currency of policy was Rs.9,38,650/-  and total premium was paid a sum of  Rs.24,981/-. It is admitted that the diseases covered under Section 3; Major Medical Illness and procedures as pe section of policy is Section III; Major Medical Illness & Procedure, However, it is stated that these ailments do not fall within purview of the policy. It was further wrong to alleged that due to act of omission on the part of OP, the complainant suffered financial loss or phased harassment, mental pain and agony. The complaint was false and frivolous and without any cause of action and deserves to be dismissed.
11. The complainant filed rejoinder and reiterated the complaint allegations. In the rejoinder to the written Statement the complainant denied that the terms & conditions or the policy wordings of the policy were not provided by the OP to the complainant. It is stated that the OP is trying mislead, by taking false and frivolous pleas.
12. Both the parties have filed their evidence by affidavit and also file their respective written arguments. Complainant filed evidence reiterating the facts made in the complaint.  Complainant filed the copy of insurance policy, Copy of claim form, death certificate, Dr. certificate dated 20.05.2013 with query report, e-mail communication and legal notice dated 11.12.2013 .
13. On the other hand, OP filed evidence of Sh. Pankaj kumar, working as Manager-Legal of OP company with power of Attorney dated 05.03.2015, stated that deponent is working as Manager-Legal with OP at its branch/registered Office at Stellar It Park, Sector-62, Noida is the authorized Representative of the OP by virtue of an authority Letter Exbt.OP-A, and, copy of policy terms & Conditions.
14. We have heard the Ld. counsel for the parties and perused the record. Both the parties filed copy of policy `Home Surakhsha Plus. It is undisputed that complainant had taken the policy `Home Suraksha Plus` in question from OP death took place during the continuance of the said policy. It is significant to note that the claim has been repudiated by the insurance company stating that as pe thec case summery received from Pentamade Hospital, the son of the complainant died due to Cardio Pulmonary Arrest with Aspirated Vomitus. It is stated that theses ailments do not fall within the purview of the policy. It is also stated in the latter dated 27.12.2013 that the following are the diseases covered under Major Medical Illness:-
15. The critical illness coverage:-

 

1. Cancer
2. End Stage Renal Failure
3. Multi Sclerosis
4. Major Organ Transplant
5. Heart Valve Replacement
6. Coronary Artery Bypass Graft
7. Stroke
8. Paralysis
9. Myocardial infarction

 

16. According to the OP, the case of death is not covered under the policy. Clauses 3 (C) 3, Major Medical Illness and Procedures.
17. It was argued on behalf of the Ld. Counsel for the complainant that the OP is playing with Jugglery of word to deny the rightful claim of the complainant. The complainant also filed a case report and review of literature on `Pulmonary Embolism Mimicking Acute Myocardial Infarction, distinguished  ` Symptoms of pulmonary Thromboembolism (PTE) and myocardial infraction (AMI) can be similar, including acute dyspnea, chest pain, syncope and palpitations. Physical examination is nonspecific and cannot reliably distinguish these two diagnosis.
18. Ld. counsel for complainant contended that the claim was repudiated arbitrarily. It is also stated in the repudiation letter dated 27/12/2013 that the diseases covered under Major Medical Illness: Sec.3 ( c)   Myocordial Infarction.  It is submitted by the counsel for the complainant that  the insurance company/OP is playing with jugglery of words to deny the rightful claim of the complainant. It is stated that son of the complainant suffered a massive Cardic Arrest and this would fall under the heading Myocardial Infarction which is covered under the policy in question.
19. During the course of arguments this Commission asked the OP to prove that the policy Terms & Conditions and policy wordings were duly communicated to the complainant. We have been taken through the record and we find that the OP was supplied only with a cover note/ certificate-cum-schedule of the policy. So, the other terms and conditions containing the above clause were not communicated. In the reply/WS it was not specifically stated that the Terms & Conditions clause was also communicated to the complainant.
20. Ld. Counsel for the complainant placing reliance on identical  judgment (Major Medical Illness: Myocardial Infraction) of Hon’ble Madras High Court in the case of Jasmine Ebenezer Arthur Vs HDFC ERGO General Insurance Company Limited, reported in 2019 in W-P No. 22234 of 2016 decided on 06.06.2019, held that “Insurance company/Respondent is directed  to honour the claim made by the petitioner in respect of Health Insurance Policy availed by her husband without insisting for any further documentations or particulars in accordance with law”. The Insurance Company preferred W.A no. 4035 of 2019 before Hon’ble Madras High Court in case titled HDFC ERGO General Insurance Company Limited vs Jasmine Ebenezer Arthur & Ors. Vide order dated 28.11.2019, it was held that “there was no objection to the expert opinion/ report giving by doctor, appeal preferred by Insurance Company is dismissed”.
21.  First of all we propose to examine the core issue whether `Myocardial Infraction` was covered under section 3  of the policy in question. The complainant had made his claim after his son`s death under the head of “Major Madical Illness” with relevant documents. However it was intimated to him that the only missing document was “Cardio Pulmonry Arrest With Aspirated Vomitus”. The complainant again obtained a query report dated 03.04.2014 and certificate issued by Dr. Shard Chandra dated 20.05.2013 from Pentamed Hospital, Delhi as per which, the cause of death was “acute coronary artery syndrome” Myocardial Infraction was a part of the cause of death as “Cardio Pulmanry Arrest” as Heart attack.  Though, the cardiac arrest suffered by the son of the complainant falls under the abovesaid medical event, the Op/Insurance Company is denying the rightful claim to the insurance cover. In Jasmine Ebenezer Arthur Vs HDFC ERGO General Insurance Company Limited, reported in 2019 in W-P No. 22234 of 2016 decided on 06.06.2019 The Hon`ble High Court obtained a medical report from experts clarifying the referred terms “ Acute Coronary Syndrom (ASC)’ and “Myocardial Infraction”(MI)’. An opinion was obtained from Dr.M.Nandakumaram, M.D. D.M.(Cardio), Professor of Cardiology (C-VI Unit), Madras Medical College and Rajiv Gandhi Government General Hospital, on 07.03.2019, which reported as follows:
    "Hence, I am of the opinion and report that Acute Coronary Syndrome (Acs) includes Myo-Cardial Infarction (MI). The Cause of Death in MI can be due to Ventricular Fibrillation (VF). If the patient had died of ACS & VF the cause of Death can be considered due to MYO-CARDIAL INFARCTION (MI).
    From the above, it is very clear and evident that the cause of death of the insured is well within the defined medical events prescribed in the policy’.
22. From the foregoing discussion would lead to the only irresistible conclusion that  the repudiation of the claim of the complaint was unjustified and the  complainant had filed his evidence by affidavit and filed and relied upon the certificate issued by doctor of Pentamed Hospital.
23. The basic object of the Insurance Act was to ensure thes vast power concentrated in the hands of insurance companies was not abused and the policyholders' money was safely invested. However, in spite of regulations by the law, there is much abuse of the Trust by the private insurers, which lead to nationalization of insurance sector. Thereafter, the insurance business was conducted through the Corporations of the Central Government under Life Insurance Corporation of India and General Insurance Corporation, etc.,.
24. We also tend to rely on dicta of the Hon`ble Supreme Court in CIVIL APPEAL NO.  4071 OF 2022 titled Gurmel  Singh  Versus Branch Manager, National Insurance Co. Ltd.  Decided on 20.05.2022, wherein, the Hon`ble Supreme Court has held  that “while settling the claims the Insurance Company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”.
25. In  the  present  case,  the  insurance company has become too   technical   while   settling   the   claim   and   has   acted arbitrarily. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.
26. In the above facts and circumstances, we accordingly hold that OP/insurance Company was guilty of deficiency in service as its arbitrarily repudiated the claim.
27. In the said facts and circumstances, we hold OP/insurance company liable to pay the insured declared value Rs.9,38,650/- (Rupees Nine lakhs Thirty eight Thousand Six Thousand Fifty Only) with interest @ 12% per annum since lodging of claim and as well as compensation of Rs.1,00,000/- (Rupees One lakh Only) for mental agony Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation from the date of filing of complaint within 4 weeks of the receipt of the order, failing which OP will be liable to pay interest @ 18 % p.a. till realization.

The Copy of order be provided/sent to all parties free of cost.

The order be uploaded on the website of the Commission.

File be consigned to record room with a copy of the order.

Announced in open Forum on 30/11/2022.

 

   (POONAM CHAUDHRY)

President

 

                                                         (BARIQ AHMAD)                                                            

                                                                      Member