| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 314 of 20-11-2018 Decided on : 30-08-2022 Harkanwal Singh aged about 47 years S/o Gurbaksh Singh R/o Bathinda-Muktsar Road, Village Lohara, Tehsil Gidderbaha, Distt. Muktsar-152031. ...........Complainant Versus Star Health & Allied Insurance Co. Ltd,. Area Office: 2716, 1st Floor, Gagan Complex, Backside Majestic Park Plaza Hotel, Gurdev Nagar, Pakhowal Road, Ludhiana-141001, through its Manager/ Authorized Signatory. Star Health & Allied Insurance Co. Ltd., SCO- 133, 2nd Floor, Above Tata Motor Finance, Near Hotel Sweet Milan, Goniana Road, Bathinda-151001. Through its Branch Manager/Manager/ Incharge.
..........Opposite parties Religare Health Insurance Co. Ltd., Top Floor, SCO 56-58, Sec. 9D, Chandigarh, 160017. Through its Branch Manager/Authorized Signatory.
......Proforma Opposite Party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Smt. Paramjeet Kaur, Member Present : For the complainant : Sh.Sahil Bansal, Advocate. For opposite parties : Sh.Vind Garg, Advocate for OPs No.1 &2. Opposite party No.3 ex-parte. ORDER Kanwar Sandeep Singh, President : The complainant Harkanwal Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Star Health and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that in the year 2016, the opposite parties No.1 & 2 approached the complainant for the renewal of medical Insurance Policy which was already existing with opposite party No.3 vide Policy No.10248891. The opposite parties No.1 & 2 renewed the previous policy under Family Health Plan vide Policy No. P/211200/01/2017/000007 w.e.f. 01.04.2016 to 31.03.2017 and insured complainant Harkanwal Singh, his wife Veerpal Kaur and their children Jashan Jot Kaur & Gurnoor Singh for Rs. 15,00,000/-. The opposite parties No.1&2 also mentioned that this is continuous insurance. The opposite parties No.1 & 2 also assured that this is cashless insurance and in case of any problem total treatment in any hospital in India is free and total medical bills upto 15,00,000/- will be paid. It is alleged that the complainant never lodge any claim with the opposite parties from 2015 to 2017. The opposite parties No.1 & 2 insured the complainant and his family for Rs.15,00,000/- (+) Rs.3,75,000/- (Bonus) i.e. Total amount Rs.18,75,000/-. The opposite parties No.1 & 2 again renewed the Insurance w.e.f. 01.04.2018 to 31.03.2019 vide Policy No. P/211217/01/2019/000009 and covered the complainant and his family for Rs.20,25,000/- (Rs.15,00,000/- (+) Rs.5,25,000/- (Bonus)). Now again in 2018 which is continuous insurance, the complainant declared his PED and his column is Blank and other members of the family duly declared that NO PED Declared. There is difference in the Column Pre-Existing Disease in all the Policies and in all the 3 Policies the complainant duly declared his PED as such the opposite parties No.1 &2 not mentioned the word NO PED Declared against the complainant whereas they duly mentioned the word No PED declared against the other members which is self speaking that the complainant duly declared his condition and the Insurance Co. i.e. Opposite parties No. 1 & 2 after admitting the same, covered the insurance of complainant. It is also alleged that in 2018, suddently complainant suffered from Kidney disease and prior to this, he was never admitted in any hospital for Kidney disease. He was admitted in Fortis Hospital, Mohali on 21.04.2018 and discharged on 28.04.2018 in emergency for Kidney transplant. In this regard, claim was duly lodged with opposite parties No. 1 &2 under UHID No.001565136 IPD No.IPFHM00312305. It is further alleged that Fortis Hospital, Mohali is network empaneled hospital of opposite parties No. 1 & 2 and duty bound to provide cashless treatment, but the hospital in connivance with the opposite parties No. 1 &2 did not provide cashless treatment and charged Rs.3,74,555/- from the complainant on account of the complainant's kidney transplant. Under this Insurance Rs.1,00,000/- or 10% of Sum Insured whichever is less is also covered for Organ Donor expenses and in this case the donor Gurinder Singh also lodged claim of Rs.1,47,590/- with the opposite parties under IPD No.IPFHM00312304, but the opposite parties not provided the said claim also. The complainant alleged that opposite parties No. 1 & 2 sent one endorsement schedule to the complainant in August, 2018 effective from 02.06.2018 vide which the opposite parties No. 1 & 2 illegally cancelled the insurance of the complainant with illegal remarks "Non-disclosure of PED". There is nothing mentioned under which clause the opposite parties No. 1 & 2 cancelled the Insurance of the complainant. The opposite parties No. 1 & 2 issued new policy schedule with the coverage of other 3 members of the complainant by deleting his name. Opposite parties No. 1 & 2 never refunded any amount to the complainant nor intimated to the complainant regarding cancellation of his Insurance in the 4th year total and 3rd year. The opposite parties No. 1 & 2 cancelled the Insurance Policy illegally w.e.f. 02.06.2018 whereas the claims were pending of April, 2018 when the Insurance policy was in force. It is further alleged that on 23.01.2018 the opposite parties No. 1 & 2 illegally firstly rejected the claims of the complainant i.e. Rs.3,74,555/- of his treatment and Rs.1,00,000/- on account of organ donor and now the opposite parties No. 1 &2 illegally cancelled the insurance of the complainant without refund of any premium amount. The opposite parties No. 1 & 2 have no right to cancel the policy of the complainant. The complainant got served legal notice on 15.09.2018 upon the opposite parties to pay the cliam and restore the insurance, but to no effect. Due to non payment of claim and restoration of Policy, the complainant is suffering from mental agony and pain for which he claims compensation to the tune of Rs..1,00,000/-. On this backdrop of facts, the complainant has prayed for directions to opposite parties No.1 & 2 to pay Rs.4,74,555/- (Rs.3,74,555/- of the complainant and Rs.1,00,000/- claim on account of organ donor) with interest loss @ 18% p.a. in addition to Rs.1,00,000/- as compensation besides Rs.50,000/- as litigation expenses. Notice of this complaint was given to the opposite parties but despite notice opposite party No.3 failed to appear, Hence, opposite party No.3 was proceeded against ex-parte. Upon notice, the opposite parties No. 1 & 2 put an appearance through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that intricate questions or law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act'. That the complainant has concealed material facts and documents. It has been pleaded that the complainant has concealed the fact that he was diagnosed with CKD- Chronic kidney disease in 2014 and recurrent UTI since 8-10 years. The complainant-insured was suffering from chronic kidney disease prior to inception of the first policy. At the time of porting of the policy from 01.04.2016 to 31.03.2017 from opposite party No.3 with replying opposite parties, the complainant has not disclosed the above mentioned medical history/health details in the proposal form which amounts to misrepresentation and non disclosure of material facts. Therefore, pre-authorization request was declined vide letter dated 21.04.2018. The complainant/ insured availed Family Health Optima policy, covering Mr. Harkanwal Singh — Self endorsing Hypertension and pervious surgeries or procedures performed previously and its complications as PED), Mrs. Veerpal Kaur - Spouse, Jashan Jot Kuar and Gurnoor Singh - Dependant Children vide Policy No. P/211200/01/2017/000007 for the period from 01/04/2016 to 31/03/2017, Policy No. P/211217/01/2018/000001 for the period from 01/04/2017 to 31/03/2018 & Policy No. P/211217/ 01/2019/ 000009 for the period from 01/04/2018 to 31/03/2019. The complainant/ insured had earlier cover with Religare Health Insurance for the period from 01.04.2015 to 31.03.2016 and ported from the Religare Health Insurance Policy for the period 1/04/2015 to 31/03/2016. At the time of proposing the policy, the terms and conditions of the cover were properly explained and the same were served to the insured along with the policy schedule. Moreover, it is clearly stated in the policy schedule that "The insurance cover under this policy is subject to conditions, clauses, warranties, exclusions etc., “ It has been further pleaded that the complainant/ insured patient submitted pre authorization request in the 3rd year of the policy towards Kidney transplantation on 21/04/2018. On receipt of the pre authorization documents & medical records, dated 04.04.2018, it was observed from the Indoor Case Papers dated 04/04/2018, that the insured was diagnosed with CKD in 2014 and recurrent UTI since 8-10 years. Thus, the insured has CKD since 2014, which is prior to the inception of the Religare Policy. At the time of porting, of the policy which is from 1/04/2016 to 31/03/2017, the insured have not disclosed the above mentioned medical history/health details of the insured-person in the proposal form which amounts to misrepresentation / non-disclosure of material facts. As per condition No.6, "The Company shall not be liable to make any payment under the policy in respect of any claim if information furnished at the time of proposal is found to be incorrect or false or such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the Insured Person or by any other person acting on his behalf". Thus, the Pre authorization request towards the planned admission was rejected and the same was informed to the treating hospital and to the insured vide letter dated 21/04/2018. The opposite parties No. 1 & 2 further pleaded that as per condition No.12, the Company may cancel this policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material fact as declared in the proposal form and/or claim form at the time of claim and non co-operation of the insured by sending the Insured 30 days notice by registered letter at the Insured person's last known address. Thus, invoking condition No.12, the policy was cancelled with the prior intimation to the insured. This being a ported policy, as per Provisions contained in IRDA (Health Insurance) Regulations, 2016, the insurance company shall address the existing insurance company seeking necessary details of medical history and claim history of the concerned policyholder through the web portal of the IRDA. The Previous Insurer Religare Health Insurance has replied No Claim No PED. Theretore, based on the information given and declaration made in the Proposal Form alone, the policy was issued to the insured. It has also been pleaded that it is clearly asked in the proposal form to fill in the respective column for each of the person proposed to be covered under column: "4. Have you ever suffered or suffering from any of the following:- I) Disease of stomach, intestine, liver, gall bladder/ pancreas, Kidney, Urinary bladder, Urinary Tract Diseases — if yes, since when" —"No" Insured answered — "No" for the above questions, which is a clear non disclosure of material facts. Thus the Pre authorization is not payable. As per the Contract of Insurance, the medical history/ health details of the person(s) proposed for insurance are to be disclosed in the proposal form at the time of inception of the policy. On merits, it has been denied that blank column against pre-existing disease column means that the complainant disclosed the pre-existing disease of Chronic kidney disease suffered in 2014 and recurrent UTI since 8-10 years. The complainant had only disclosed hypertension, stone and gall bladder removal in the year 2012 (which is shown below the PED column in the Policy schedule), whereas in the proposal form in column No.4 wherein it was asked that have you ever suffered or suffering from any disease of stomach intestine, liver, gallbladder, pancreas, kidney, urinary bladder, urinary tract diseases? The complainant answered the the same as no, which means it was a clear non-disclosure of material facts. The blank column against the column of PED does not mean that the complainant disclosed the Pre-existing disease as alleged. The opposite parties No. 1 & 2 denied that Fortis Hospital, Mohali is working as an agent of opposite parties. Rather the pre-authorization request was processed and rejected by opposite parties as per terms and conditions of the policy as the pre-existing disease i.e. Chronic kidney disease suffered in 2014 and recurrent UTI since 8-10 years were concealed by the complainant at the time of obtaining the insurance as well as at the time of renewal of the policy. The opposite parties No. 1 & 2 have further pleaded that complainant has no locus standi to claim any amount of organ donor expenses and the same can only be claimed by the donor, if the same are otherwise payable as per terms and conditions of the policy. However, a pre-authorization request was received towards the treatment of kidney donor expenses by insured Gurinder Singh Brar. The organ donor expenses for organ transplantation where the insured person is recipient are payable provided the claim for transplantation is payable and subject to the availability of the sum insured. Since the claim related to kidney transplantation is rejected due to non disclosure of material facts, the pre-authorization request for donor expenses was also rejected. It has also been pleaded that an amount of Rs.12,402/- was refunded towards the premium vide D.D. No.156068 dated 24/05/2018 vide letter dated 25/05/2018. The opposite parties have also pleaded that the complainant has not submitted any claim documents to process the claim for reimbursement. If this Commission comes to the conclusion that the claim of the complainant needs to be allowed, the same shall be subject to the terms and conditions of the policy including the limits of liability mentioned in the policy. After controverting all other averments of the complainant, the opposite parties No. 1 & 2 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his Affidavit dated 20.11.2018 (Ex.C-1) and the documents (Ex. C-2 to Ex. C-12). In order to rebut the evidence of complainant, the opposite parties No. 1 & 2 have tendered into evidence affidavit of Rajiv Jain dated 07-01-2019 (Ex.OP-1/6) and the documents (Ex. OP-1/1 to Ex. OP-1/5 and Ex.OP-1/7 & Ex.OP-1/8). The learned counsel for the parties reiterated their version as pleaded in their respective pleadings. We have heard learned counsel for parties and gone through the record. In the case in hand, the opposite parties vide letter dated 25-5-2018 (Ex.C-9) intimated the complainant that their claim department, Corporation Office, Chennai repudiated the claim due to non-disclosure of material fact (i.e. about the existing of Pre-existing diseases). Vide said letter the opposite parties also cancelled the insurance policy and refunded the premium amounting to Rs. 12402/- to complainant. The complainant in para No. 12 of his complaint has mentioned/admitted in his complaint that he declared his PED and his column is blank whereas other members declared 'No PED'. The contention of the complainant is that from blank column it should be persumed that he has declared PED. A perusal of file reveals that in all the insurance policies against PED only Hypertension and its complications are mentioned whereas Discharge Summary dated 28-4-2018 (Ex. C-5) makes the position clear wherein it is mentioned in the Past History details : Hypertension since 15 years, H/O Recurrent UTI 10 years, back treated with medicications. H/o Stones in 2014 passed spontaneously. H/o Laproscopic Cholecystectomy for Gall Stone disease in 2013. Ex.OP-1/1 is the Proposal Form which was filled by complainant for obtaining insurance for the period from 01-04-2016 to 31-03-2017. This document shows that in reply to Question : Diseases of stomach, intestine, liver gall bladder/pancreas, kidney, urinary bladder, urinary Tract diseases, if yes since when : the complainant has answered 'NO ' Complainant himself produced his discharged summary as Ex.C-5. Perusal of this document itself reveals that complainant is k/c/o (known case of) Chronic Kidney Disease since 2014 and was on MHD (Maintenance Hemodialysis) twice weekly since February 2017. Further Ex.OP-1/3 medical history/treatment record of complainant issued by Fortis Hospital, Mohali. This document reveals : Hypertension – 15 years : CKD detected in 2014. History dates back to 2014 when patient complained of fatique, malaise for which he got evaluated in Bathinda Hospital with routine tests and found S. Creatnine around 1.8 which increased gradually in 3-4 years and in Feb, 2018, it rose to 14.0. He was initiated on HD in Bathinda Sidhu Kidney Centre initial dialysis through femoral once a week (started from 14-2-2018). Last HD 3-4-2018 UTI X 8-10 years. Thus, from the evidence placed on file it is proved that complainant was suffering from Chronic kidney disease since 2014 prior to first insurance which he obtained in 2016. The complainant has claimed treatment expenses of kidney transplant which has direct nexus with pre-existing disease which was concealed by complainant while obtaining insurance. Hon'ble Supreme Court in the case Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd., cited as R.C.R. (Civl) 692 has held that : “Medi-claim policy – At the time of taking policy, he was suffering from Diabetic nephropathy/Chronic Renal Faiulure – Deceased did not disclose the fact of ailment while taking the policy which was within his knowledge and he was required to disclose it under the terms of policy – Death of deceased after 7 months of taking the policy – Wife claiming compensation which was repudiated by the insurance company – Held, fct suppressed was a material fact – There is no deficiency in servcice – Insurance company justified in repudiating the claim – Material fact means any fact which would influence the judgement of a prudent insurer in fixing insurer the premium or determing whether to accept the risk or not.” It was also held that :- “If the proposer has knowledge of such fact, he is obliged to disclose the same – Failure to do so entitled the insurer to repudiate his liability under the policy.” Therefore, keeping in view the facts, circumstances and the evidence placed on file by the parties, this Commission is of the considered opinion that complainant has failed to prove any deficiency in service on the part of the opposite parties by producing cogent and convincing evidence. Therefore, the opposite parties have rightly rejected the insurance claim and cancelled the insurance policy in question of the complainant as he has concealed the pre-existing disease of Chronic Kidney Disease (CKD) while obtaining insurance. Hence, complaint of complainant fails and is hereby dismissed without any order as to cost. The complaint could not be decided within statutory period due to Covid pandemic and heavy pendency of cases. Copy of order be supplied to parties free of cost as per law. File be consigned to record room.
Announced : 30-08-2022 President (Kanwar Sandeep Singh) (Paramjeet Kaur) Member
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