Delhi

East Delhi

CC/493/2016

MEENU - Complainant(s)

Versus

NIC - Opp.Party(s)

17 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 493/2016

 

	Meenu Khullar W/o Sh Ravi Khullar R/o B-9/8 Krishna Nagar, Near Lal Quarters Delhi-110051	….Complainant
Versus
	National Insurance Co. Ltd. Insurance Agency Office at 11th Floor Scope Minar, North Tower, Core-2 Laxmi Nagar, District Center, Delhi-110092	……OP

 

Date of Institution: 20.09.2016

Judgment Reserved on: 17.11.2022

Judgment Passed on: 17.11.2022

                  

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Ritu Garodia (Member)  

 

JUDGEMENT

 

1. The complaint pertains to deficiency of service on the part of OP in repudiating the claim of the complainant as per exclusion clause in the policy.
2. The brief facts of the complaint are that medical policy bearing No. 354300/48/14/8500002305 was issued to complainant covering a period from 23.2.2015 to 22.2.2016 on payment of Rs.16,447/- as premium. The policy provided coverage to the complainant, her husband and her daughter. The ‘Sum Assured’ of the said policy was Rs.5,00,000/-. The husband of the complainant, Ravi Khullar, was admitted in the hospital on 26.5.2016 and discharged on 5.6.2016. The total hospital bill came to Rs.8,43,497/-. The cashless request for Rs.5,00,000/- i.e. ‘sum assured’, was rejected. Thereafter, the claim for reimbursement was repudiated. The Complainant prays for refund of the insured amount of Rs.5,00,000/-, compensation for Rs.1,00,000/- and litigation charges of amounting to Rs.85,000/-.
3. OP in its reply stated that there is no cause of action against the insurance. It is submitted that the complainant was insured under Pariwar Mediclaim Policy bearing no. 354300/48/14/8500002305. The husband of the complaint, Shri Ravi Khullar was diagonised with Carcinoma of Left Buccal Mucasa commonly known as oral cancer. It was allegedly caused due to chronic smoking, chewing of tobacco and/or consumption of alcohol. As per medical progress report, the patient had a history of chronic smoking, and chewing pan masala for 30 year and was alcoholic.
4. The claim was denied under 4.11 of the policy which is as follows:-

“4 Exclusions

The company shall not be liable to make any payment under the policy in respect of any expenses whatsoever incured by any insured person in connection with or in respect of ………………..

1. Drug/alcohol abuse

Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/alcohol or use of intoxicating substances.”

It is further submitted that statuary warning are printed about side effect of consumption of these items through publication and media.

5. The complainant in her rejoinder has reaffirmed the facts as stated in the complaint. She has specially denied that the complainant had concealed the fact of chronics smoking, and alcoholism at the time of taking policy. The complainant is a policy holder of OP since 2007. There is no evidence to prove the husband of complainant was having history of eating pan masala or chronic smoking or alcoholism.
6. The complainant has filed her evidence by way of affidavit to support her contentions and exhibited the following documents

1. Cover note and its premium receipt are exhibited as EXB-CW-1/1 and CW-1/2 respectively.
2. Complete bills are exhibited as EXB CW-1/3.

7. OP filed its evidence by way of affidavit to support its contention and exhibited the following documents

1. Copy of Insurance Policy is exhibited as Ex.OP1W1/1.
2. Copy of the pre-authorization request is exhibited as Ex.OP1W1/2.
3. Copy of Indoor Patient Report is exhibited as Ex.OP1W1/3.
4. Copy of Cashless denial is exhibited as Ex.OP1W1/4.
5. Copy of Repudiation Letter is exhibited as Ex.OP1W1/5.

OP has also filed judgment supporting the action of rejection of the claim.

 

8. We have heard the rival contentions of the parties and considered the material on record. It is admitted that the complainant and her family was covered under Pariwar Mediclaim Policy since 2007 for a ‘sum assured’ of Rs.5,00,000/-. Her husband, Ravi Khullar, was admitted on 26.5.2016 and was diagnosed with carcinoma of left buccal mucosa. Cashless claim and claim for reimbursement was denied by stating the following reason:

The cashless is denied under clause 4.11, 5.1 and 5.5 of policy terms and condition as patient has tobacco chewing history and smoking history as clearly mentioned in IPD records while same information was not disclosed while applying in pre-authorization request form for surgical management. Smoking and chewing tobacco is a direct avoidable factor of oral cancer (mainly gum and buccal mucosa) and it causes the four-fold increased risk of oral cancer amongst tobacco users than non-smokers. And in this case faults have been misrepresented and hidden hence cashless denied.

9. The final claim was repudiated vide letter dated 1.09.2015. The relevant portion is reproduced as under:-

It has been observed that patient has diagnosed case of carcinoma of left buccal mucosa and patient has history of chronic smoker, pan masala since 30 years and alcoholic. Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/alcohol or use of intoxicating substances are not covered under the scope of the policy. Hence claim falls under clause 4.11 of the policy.

10. OP has relied on indoor patient report dated 31.5.2015, titled as progress note-anesthesiology. The relevant portion of the report is as follows;
11.  

HTN on erratic treatment (amlodip+atenolol)

Chronic smoker/pan masala intake 30 years

•  

MPG IV

11.  The discharge summary dated 5.06.2016 shows the medical history as Diagnosis: Carcinoma of left buccal mucosa.

Medical History: Mr. Ravi Khullar, 53 years old male, hypertension, non diabetic, presente with ulcerated lesion left bucal mucosa measuring 4x5 cm involving upper and lower GB sulcus. Overlying skin and RMT not involved. No neck gland.

Past History of illness:

          No history of hypertension, diabetes mellitus.

          No history of Allergies.

12. OP has alleged that complainant had a habit of chewing tabocco, pan masala, alcoholism which is bound to lead to oral cancer and as such is coverd under the exclusion clause 4.11. The Commission is unable to agree with the submission of OP in absence of any concrete evidence on record. Many people chew pan masala, smoke, consume alcohol but that does not necessarily lead to the conclusion that it would definitely cause the oral cancer. This is a presumption, which has to be proved on test of preponderance of probabilities w.r.t. particular patient. These habits might be advertised as being injurious to health, and even may be, but does not mean such habit are the cause and only cause for the ailment suffered by the complainant. The discharge summary nowhere states that the cause of pateint’s disease is due to pan masala, tabocco or alcoholosim. In fact the medical history and past history as stated in the discharge summary of the hospital does not mention any alcoholisim, chronic smoking or intake of pan masala. The only evidence for the same as relied by OP is indoor patient progress report which cannot be treated as primary much less conclusive evidence in the absence of independent proof.
13. Hon’ble National Commission in Religare Health Insurance Company Ltd. V/s Gaurav Handa, 2019 has observed

It is also seen from the record that there is no record on the file to show that cancer has been caused due to intake of alcohol or smoking though the doctor of the insurance company after examining the medical record has given his report to this effect. Clearly, there is no report given by any doctor who had examined the patient before his death nor there is any treatment record or discharge summary which mentions this fact. Therefore, without any report given by any treating doctor that the cancer was caused due to intake of alcohol and smoking, the assertions of the doctor of the insurance company or of the insurance company cannot be accepted. Hence, I do not find any merit in the assertion made in the revision petition that the case of the complainant is covered under the exclusion clause 4.3.

14. OP has also alleged that the complainant has filed pre-authorization request form denying use of alcohol/drug abuse. Perusal of the said form exhibited by OP does not show any denial or any question relating to use of alcohol/drug abuse. In fact as per the prevailing practice, the form has been filled by the hospital.
15. OP has relied on certain judgments which are not paramateria with the facts of case. OP has not been able to prove that the treatment of carcinoma of left buccal mucosa arose out of illness due to misuse or abuse of drug/alcohol/intoxicating substance by the complainant’s husband. In fact, it is not even proved that patient was indulging in the intake of pan masala, alcohol, tobacco. The very fact that complainant has been chewing pan masala for 30 years, as alleged, although there is no evidence on the record, itself confirms that chewing pan masala would not cause cancer. If it would have been like this, the patient could not have survived 30 years of continuous use of pan masala as alleged. The contention of the OP is therefore not well founded.
16.  In these facts as mentioned this Commission is of the view that the contention of OP is based only on surmises and presumptions, which have not been proved by the OP. It is further observed that refusal of cashless and final repudiation of claimed amount was not proper on OP’s part. Accordingly the complaint of the complainant is allowed by this Commission. OP is ordered to pay an amount of Rs.5,00,000/- i.e. insured amount alongwith interest @9% p.a. from the date of rejection of cashless claim till realization, Rs.35000/- towards compensation and litigation cost.
17.  This order shall be complied by the OP within 30 days from the date of receipt of the order. In case the order is not complied within 30 days then OP shall pay interest @ 11% p.a. on the above said amount of Rs.5,00,000/- from the date of rejection the claim and also pay Rs.35000/- towards compensation and litigation cost.

 

Copy of the Order be supplied/sent to the Parties free of cost as per rules.

File be consigned to Record Room.

Announced on 17.11.2022

DELHI