PER:

Nidhi Verma, Member

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11/12 against the opposite party on the allegations that the complainant obtained a mediclaim cashless policy known as family Health Optima Insurance Policy bearing No. P/211111/01/2012/000763 for a period of one year from 12.7.2011 to 11.7.2012 from the opposite party against requisite premium for the sum insured of Rs. 5.00 Lacs covering the medical risk of the complainant and his entire family and thus the complainant having hired the services of the opposite party for valuable consideration falls within the definition of Consumer as defined under the Consumer Protection Act, 1986. During the validity period of the of the aforesaid policy, the complainant developed high fever, loose motions 20/25 times, breathlessness, decreased urine output and dyharia and accordingly the complainant was admitted in Aditya Birla Memorial Hospital, Pune on 23.3.2012 and after treatment, he was discharged from the said hospital on 12.4.2012. At the time of admission of the complainant, the complainant had intimated the said hospital authorities regarding medi claim policy obtained by him from the opposite party and intimation in this regard was also given to the opposite party and the opposite party gave authorization to the said hospital authorities regarding their liability cum hospitalization of the complainant. The aforesaid hospital initially prepared interim bill/ summary dated 10.4.2012 to the tune of Rs. 5,00,885.87 Paise and after negotiations, they prepared bill of Rs. 4,89,841/- dated 13.4.2012. The opposite party instead of paying the hospitalization charges to the aforesaid hospital directly has vide its letter dated 12.4.2012 withdrawn the authorization letter and thereafter issued letter dated 18.6.2012 repudiating the claim of the complainant on the flimsy ground that the complainant was suffering from hypertension since three years and chronic liver disease which is long standing in nature prior to inception of medical insurance policy. All the relevant bills and other documents required by the opposite party for disbursement of the amount incurred by the complainant on her treatment.  The complainant was not having any alleged pre existing disease nor the opposite party has any proof to this effect and it is a lame excuse put forward by the opposite party to withhold the genuine and legitimate claim of the complainant. Before issuing the mediclaim policy to the complainant the medical treatment of the complainant and his entire family was got conducted by the opposite party from  their empaneled doctor and the complainant and his family members were found medically fit for obtaining the mediclaim policy and it was after due and thorough medical examination of the complainant and his family members that the insurance policy was released to the complainant. The opposite party is estopped by its own act and conduct from alleging that the complainant was having any pre existing disease.  It was a cashless policy and the opposite party was under legal and contractual obligation to pay the medical expenses directly to the concerned hospital from where the complainant got treatment but what to talk of giving such expenses directly to the concerned hospital, the opposite party has refused to pay the genuine claim on flimsy grounds. The opposite party has no right to withhold the genuine and legitimate claim of the complainant on flimsy grounds. The aforesaid policy was obtained by the complainant from the opposite party on their assurance and undertaking that in case any sort of hospitalization of the complainant and his family members, they would directly make payment to the concerned hospital and it is a cashless policy. The purpose and aim of obtaining the mediclaim policy by the complainant was to secure himself and his family members in case any disease is developed to them and it was with the aim that the complainant had obtained the said mediclaim policy and the opposite party as such no legal right to withhold the genuine claim on the flimsy grounds. Earlier the complaint before this commission as filed by the complainant vide complaint No. 822/12 however the same was dismissed by this commission in default vide orders dated 4.10.2013. Against the said orders the complainant had filed an appeal before the Hon’ble State commission  Chandigarh vide FA No. 100/2016. However the said appeal was withdrawn as per orders of Hon’ble State Commission for filing fresh complaint before this commission on the ground that the complaint earlier filed was dismissed in default and not decided on merits. The complainant has prayed as under:-

(a)     The opposite party may kindly be directed to pay the claim amount of Rs. 4,89,841/- alongwith interest at the rate of 18% p.a. from the date of lodging the claim till payment.

(b)     The opposite party may kindly be directed to pay compensation of Rs. 2,00,000/- to the complainant.

(c)      The opposite party may kindly be directed to pay the costs of the present complaint alongwith litigation expenses and counsel fee of Rs. 30,000/- 

3        After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version and contested the complaint by interalia pleadings that the present complaint of the complainant is not legally maintainable. The complainant has not come to this commission with clean hands and has suppressed the true and material facts from this commission. The complainant is estopped by his own act and conduct from filing the present complaint. The complainant has no cause of action to file the present complaint.  The complainant earlier filed a complaint against opposite party bearing No. 822 of 2012 which he failed to pursue and the same was dismissed in default vide order dated 4.10.2013 but the complainant filed again complaint No. 325 of 2014 instead of filing appeal before the State Commission as no fresh complaint lie and only appeal lies against the dismissal order of the complaint. The complainant again failed to pursue the said complaint despite the fact that he was given various adjournments, ultimately, said complaint was also dismissed vide order dated 3.11.2014 for want of prosecution. But the complainant by concealing the fact of second complaint and dismissal of the same, filed appeal before the Hon’ble State Commission vide F.A No. 100 of 2016 dated 2.2.2016 which was dismissed as withdrawn by the complainant vide orders dated  19.9.2016 with permission to file fresh complaint before this commission and in this complaint also, he has concealed the factum of second complaint. As per said orders, the complainant got dismissed his appeal as withdrawn to file fresh complaint, but no orders were passed for filing fresh complaint. By obtaining the said orders, limitation cannot extends as the limitation for filing a consumer commission complaint is two years from the first date of cause of action and hence on account of all the aforesaid facts that as no fresh complaint lies under law and also on account of limitation, the present complaint merits dismissal. Even otherwise, the complainant obtained the policy of Family Health Optima Insurance Policy bearing Policy No. P/21111/01/2011/000436 for the period from 12.7.2010 to 11.7.2011 for sum insured of Rs. 5,00,000/- as floater cover for the family and it was renewed under policy No. P/21111/01/2012/000763 valid for the period from 12.7.2011 to 11.7.2012 from the opposite party. During the currency period of policy,  the claim was reported in the 2^nd year of the policy and the insured/ complainant claimed amount of Rs. 5,29,840/-. As per claim, the complainant was admitted n Aditya Bila Health Services Ltd., Pune on  23.3.2012 for the treatment of B/L BRONCHOPNEUMONIA, CLD EMC CMC and submitted pre authorization request for cashless authorization and the same was denied on the ground of nondisclosure of Liver Disease and the same was communicated to the insured and the treating hospital vide letter dated 12.4.2012. The complainant submitted claim records towards reimbursement of medical expenses and on scrutiny of the claim record, it is observed that as per discharge summary, the complainant was admitted on 23.3.2012 and discharged on 12.4.2012 and diagnosed as Bilateral Broncho Pneumonia, Urinary Tract Infection with Urosepsis, Chronic Liver Disease with Ascites and Esophageal Varices, known case of Hypertension and ALD (Alcoholic Liver Disease) The Indoor case sheet from the above said hospital that the insured patient has hypertension since three years and chronic liver disease which is long standing in nature prior to inception of medical insurance Policy. The present ailments of the insured patient are complication of chronic liver disease which is a preexisting disease and as per exclusion clause No. 1 of the policy, the company is not liable to make any payment in respect of the preexisting disease until 48 months of continuous coverage has elapsed, since inception of first policy with the company. The medical certificate issued by the treating doctor that the insured patient was treated for alcoholic liver disease which is due to use of alcohol and further as per exclusion clause No. 11 of the policy, the company is not liable to make any payment in respect of expenses incurred at hospital for treatment of any disease/ condition due to use of intoxicating drugs/ alcohol. The claim of the complainant is not payable and the same was rightly repudiated and the complainant was duly communicated for the same vide repudiation letter dated 18.6.2012. Hence the complaint merits dismissal.  The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.

4        To prove his case, Ld. counsel for the complainant tendered in evidence affidavit of complainant Ex. CW1/A, copy of order dated 19.9.2016 of State Commission Ex. C-1, Copy of the out patient settlement receipt Ex. C-2, copy of repudiation of claim Ex. C-3, copy of policy schedule Ex. C-4, copy of the premium receipt Ex. C-5, copy of the withdrawal of authorization letter Ex. C-6, Copy of interim bill summary Ex. C-7, C-8, copy of inpatient cash bill Ex. C-9, copy of insurance plan Ex. C-10, benefit guide Ex. C-11 and closed the evidence. On the other hands, Ld. counsel for the opposite party tendered in evidence affidavit of N.Gopalan Chief Manager Ex. OP1/A alongwith documents Ex. OP1 to OP22 and closed the evidence.

5        We have heard the Ld. counsel for the complainant and opposite party and have gone through the record on the file.  

6        In present complaint the complainant obtained a medical cashless policy known as family health Optima insurance policy bearing number 2/11111/01/2012/000763 for a period of one year from 12^th July 2011 to 11^th July 2012 from the opposite party for the sum insured of ₹5,00,000 covering the medical risk of the complainant and his entire family.  During the validity period of the foresaid  policy the complainant developed higher fever ,loose motions 20/25 times, breathless, decreased urine output and dyharia and accordingly the complainant was admitted in Aditya Birla Memorial Hospital Pune on 23^rd March 2012 and after treatment he was discharged from the hospital on 12^th April 2012.  The opposite party instead of paying the hospitalization charges to the hospital directly has vide its letter dated 12^th April 2012 withdrawn the authorization letter and thereafter issued letter dated 18^th June 2012 repudiating the claim of the complainant on flimsy ground that the complaint was suffering from hypertension since 3 years and chronic liver disease which is long standing in nature prior to inception of medical insurance policy. The complainant was not having any alleged pre-existing disease nor the opposite party has any proof to this effect and it is a lamb excuse put forward by the opposite party to withhold the genuine claim of the complainant.  It is also pertinent to mention over here that before issuing the mediclaim policy to the complainant, medical treatment of the complainant and his entire family  was got conducted by the opposite party from their empanelled doctor and the complainant and his family members were found medically fit for obtaining the mediclaim policy.

7        Opposite party stated in their written version that the complainant earlier filed a complaint against the opposite party bearing number 822 of 2012 which he failed to pursue and the same was dismissed in default vide order dated 4^th October 2013 but the complainant filed again complaint number 325 of 2014 instead of filing appeal before Hon’ble state Commission as no fresh complaint lies and only appeal lies against the dismissal order of the complaint. however the complaint again failed to pursue the same complaint despite the fact that he was given various adjournments and ultimately said complaint was also dismissed vide order dated 3^rd November 2014 for want of prosecution but the complainant by concealing the fact of second complaint and dismissal of the same filed appeal before the Hon’ble state consumer Commission vide FA number 100 of 2016 dated 2^nd February 2016 which was dismissed as withdrawn by the complainant vide order stated 19^th September 2016 with permission to file fresh complaint before the Hon’ble forum and in this complaint also he has concealed the factum of second complaint. However, as per said orders the complainant got dismissed his appeal as withdrawn to file fresh complaint but no orders were passed  for filing fresh complaint .

8        As per the present complaint the complainant was admitted in Aditya birla health services limited Pune on 23^rd March 2012 for the treatment of B/L BRONCHOPNEUMONIA , CLD EMC and submitted pre authorization request for cashless authorization and the same was denied on the ground of non disclosure of liver disease and the same was communicated to the insured and the treating hospital vide letter dated 12^th April 2012.  The complainant submitted claim records towards reimbursement of medical expenses and on security of the claim records it is observed that as per discharge summary the complainant was admitted on 23^rd March 2012 and discharged on 12^th April 2012 and diagnosed as bilateral broncho pneumonia, uninsry tract infection with urosepsis, chronic liver disease with Ascites and esophageal varices, known case of hypertension and ALD ( Alcoholic liver disease).

9        On other hand, version of the opposite party is that the hospital stated that the insured patient has hypertension since 3 years and chronic liver disease.  The above finding confirms that the insured patient has hypertension since 3 years and chronic liver disease which is longstanding in nature prior to inception of medical insurance policy.  Hence the present ailment of the insured patients are complication of chronic liver disease which is a pre existing disease and as per exclusion clause number 1 of the policy the company is not liable to make any payment in respect of the pre existing disease until 48 months of continuous coverage has lapsed since inception of the first policy with the company.  The medical certificate issued by the treating doctor that the insured patient was treated for alcoholic liver disease which is due to use of alcohol and further as per exclusion clause number 11 of the policy the company is not liable to make any payment in respect of expense incurred at hospital for treatment of any disease due to use of intoxicating drugs/ alcohol hence the claim of the complainant is not payable and the same was rightly repudiated.

10      It is denied that Complainant suffered from high fever, loose motions, breathlessness, decreased urine output and dyharia . Moreover, It is denied that any medical treatment of complainant and his family members were conducted and only after thorough medical examination the insurance was done . The insurance was done as per disclosure statement in the form by the complainant. The opposite party is not liable to pay the said claim as same is not permissible as per the term and condition of the policy.

11      We have gone through pleading of the parties, perused the record of the learned district forum and heard the argument of the learned counsel for the parties. There is no dispute between the parties that the complainant  purchased the medical policy from the opposite party,it is also not denied by the opposite party that the  complainant  was hospitalised in Aditya Birla Memorial hospital on 23.3.2012 . There is also no dispute regarding the expenses of treatment which were incurred by the complainant. The only dispute between the parties are of pre-existing disease and the complainant has concealed this fact at the time of purchase of the policy from the OP.

12      As per OP, exclusion clause no. 11 of the policy , the company is not liable to pay any payment in respect of expenses incurred at hospital for treatment of any disease due to use of intoxicating drugs or alcohol. Further, as per the indoor case sheet from the hospital , the insured has hypertension which covered under per existing disease for which claim has been repudiated . A persual of the discharge summary shows that the complainant is a known case of HTN for 3years but there is nothing on the file to show that prior to this treatment , the complainant ever took the treatment of HTN from any hospital. Otherwise also, the problem of hypertension is not a disease and it may occur to any person at anytime . No malafide has come on the record on the part of the complainant. Rejection of the claim on superfluous ground is not sustainable. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-

“So far as hypertension and diabetes is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer 14 from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease.

13      Further, According to the OP, the complainant suppression the material fact regarding his alcoholic habits and the complainant has stated in his proposal form , false answers with uleriorst motive to misguide the OP for obtaining the insurance policy. As per Admission history and physical assessment form by the hospital (Ex. OP 21) in which the complainant answered YES for alcohol in personal habits . But in proposal form (Ex.OP-8) where no question related to alcohol was asked by the OP . Hence, no question of suppression the material fact arise here. Further,  providing the discharge summary and progress sheet stated that the complainant is known case of ALD , cannot prove that the treatment taken by the complainant was related to his personal habit of Alcohol. OP has not placed on record any cogent evidence regarding the alleged such aliments occurred due to consumption of Alcohol . The past history written in the discharge summary is that the patient is known case of HTN and ALD but we cannot come to the conclusion that (B/L BRONCHOPNEUMONIA, CLD EMC ) these diseased can be occurred only due to consumption of Alcohol. No such diagnose report of any doctor has been placed on record to show that the complainant is consuming alcohol for the last so many years and the OP has not placed on record affidavit of any doctor to prove the fact that the alleged diseased mentioned in prescription slips are due to consumption of Alcohol . In this regard, it has been held by this Commission in case “Life Insurance Corporation of India Vs. Miss Veenu Babbar and another” 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records, is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case “Life Insurance Corporation of India & Ors. Vs. Kunari Devi” IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy.

14      Moreover, Hon’ble High Court of Madhya Pradesh in “Life Insurance Corporation of India v. Ambika Prasad Pandey” AIR 1999 MP 13 has held that there is a common practice of the Insurance Companies to repudiate the claim on flimsy grounds without any justification. Similar view was taken by the Hon’ble High Court of Orissa in “Life Insurance Corporation of India v. Narmada Agarwalla” AIR 1993 Ori 103. Hon’ble Supreme Court in case of “Dharmendra Goel v. Oriental Insurance Co. Ltd.” 2008(3) CPJ 377 (SC) has held as under:-

“Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This “take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.”

It seems that the insurance companies are only interested in earning the premiums , But are not keen found to be evasive to discharge their liability. In large number of cases the insurance companies make the affected people to fight for getting there genuine claims.  the insurance companies in such cases rely upon clauses of the agreements,  which a person is generally made to sign on dotted lines at the time of obtaining policy.  This is pressed into service to either repudiate the claim or to reject the same.  The insurance companies normally build their case on such clauses of the policy but would adopt methods which would not be governed by the strict conditions contained in the policy.  It would be seen that in the present case also some sort of investigation were got conducted from a medical officer to know the causes of diseases which would not be covered by any condition of the policy which the parties had agreed to at the time of obtaining the policy.  These tactics on the part of the insurance companies are only aimed at somehow finding way and means to decline the claims.  The opposite party has taken objection that the present complaint is not within limitation but we are not agree with the version of the opposite party because perusal of record shows that the present complaint is within limitation.

15      In view of this, we are of the view that the claim of the complainant has been wrongly repudiated by the opposite party. Therefore, there is clear deficiency in service and adoption of unfair trade practice on the part of the opposite Party.

16      In view of the above discussion, the present complaint is allowed and the opposite party is directed to make the payment of Rs. 4,89,841/-  to the complainant. The complainant has also been harassed by the opposite party for a long time, as such the complainant is also entitled to Rs. 15,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of filing the present complaint till its realisation.  Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

24.11.2022