Delhi

East Delhi

CC/58/2017

SUNIL GARG - Complainant(s)

Versus

STAR HEALTH - Opp.Party(s)

16 Feb 2023

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.58/2017

 

	SUNIL KUMAR GARG R/O : B-95/1 FRONT SIDE 1st FLOOR GANESH NAGAR, TILAK NAGAR, NEW DELHI-110018	….Complainant
Versus
	STAR HEALTH AND ALLIED INSURANCE CO LTD Through its CEO/MD/GM   DIV. OFF: NO. 209-210, LAKSHMI DEEP BUILDING DIST. CENTRE, LAKSHMI NAGAR, DELHI-110092   Also at:   REGD OFF: NO.1, NEW TANK STREET, VALLUVARKOTTAM HIGH ROAD, NUNGAMBAKKAM, CHENNAI-600 034	……OP
	SATISH KUMAR AGARWAL    (Agent Id: BA0000032366.)   NO. 209-210, LAKSHMI DEEP BUILDING DIST. CENTRE LAKSHMI NAGAR, DELHI-110092	.......OP

 

Date of Institution: 07.02.2017

Judgment Reserved on: 23.01.2023

Judgment Passed on: 16.02.2023

                  

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member) 

 

Order By: Shri S.S. Malhotra (President)

 

JUDGMENT  

By this Judgment the Commission would dispose off the complaint of the complainant with respect to deficiency in service in repudiating the claim of the complainant on account of medical expenses despite having a valid Insurance Policy.    

Brief facts as stated by the complainant in the complaint are that the complainant had a ‘Mediclaim Family Floater Policy’ from the OP since 2013 and he continued to pay the premium timely and last policy which is subject matter of the present dispute was effective from 09.10.2016 to 08.10.2017 and premium of the same was Rs.17,000/- approx. On 11.10.2016 complainant felt chest pain and was admitted to Kalra Hospital, Tagore Garden, New Delhi for Angiography where he remained admitted for 2 days and he paid a bill of Rs.240000/-  The information of the same was given to the complainant and he requested for cashless benefit but the same was rejected and after recovery, he filed his claim before the OP which was also rejected inter alia on the ground that it was a pre-existing disease to the complainant and as such the claim is not payable.  The Complainant was totally mislead and kept in dark throughout the inception of the policy in October, 2013 by assuring that he would be reimbursed for every disease covered within the policy and now, since he has suffered certain ailments the claim has been rejected without any reason and it is further submitted that even before the policy was issued to him, all his medical examination was done by the Panel Doctor of the OP.  Since, the claim has been rejected, various letters/ e-mails were exchanged and ultimately complainant filed the present complaint inter alia claiming that OP be directed to pay the following:   

• To indemnify/reimburse Medical Expenses of Rs.240000/- with interest @ 24% p.a. w.e.f. 11.10.2016 and interest pendentlite; and   
• Rs.200000/- as compensation for the mental trauma, agony and harassment suffered by the complainant;

To pay a sum of Rs.51,000/- as cost of the litigation proceedings.      

The OP has filed Written Statement thereby admitting the existence of policy right from the year 2013, but is justifying its repudiation interalia on the ground that the contract of insurance is a contract of utmost bonafide and in view of terms and conditions which has to be followed by both the parties and in this matter the complainant had undergone treatment for the ACCUTE INFEROLATERAL WALL MI i.e. disease of Cardio Vascular System, which has already been incorporated in the policy as deemed pre-existing disease and in such cases the claim is only payable after 48 months of the inception of policy and in the present case 48 months still have not expired.  Therefore, claim was rightfully rejected.    

It is further stated that since it is exclusion clause of the policy itself wherein it is specifically written that all Cardio Vascular System Treatment would be treated as pre-existing disease and therefore it was stated that the claim is not maintainable.    

As far as merits are concerned the existence of policy, suffering ailment by the complainant w.r.t. heart disease, and his undergoing Angiography are not disputed but again the contents of preliminary objections are reiterated by stating that it is specifically mentioned in the exclusion clause No.1 that company is not liable to make any payment in respect of expenses for the treatment of pre-existing disease until 48 months of continuous policy.  It is further stated that even in case and without prejudice to whatever has been stated in the Written Statement, if the Commission is of the opinion that there is any liability on the paid of OP, then it may be restricted only to Rs.236516/- i.e which is the ‘sum insured’ amount. 

The Complainant thereafter filed Rejoinder and reiterated the facts of the complaint, after denying the contents of the Written Statement and it is reiterated that at the time of taking policy he had disclosed complete facts to the OP and OP had no where endorsed that he had been suffering from any Cardio Vascular Disease or would have undergone any treatment prior to or at the time of inception of policy.  Medical examination including ECG was conducted by the Panel Doctor of OP and there is no question of pre-existing disease as is being alleged.  It is further stated that claim has been rejected on hypothetical grounds and therefore complaint of the complainant be allowed along with compensation.    

Complainant filed his own evidence and has exhibited the following documents. 

• Medical Bill as Exhibit C4/1 C4/3.
• Claim Letter As Exhibit C5/1 -C5/2.    
• Claim Rejection letter as Exhibit C6. 
• Proposal form as exhibit C9/1 to C9/4 a Medical examination report as Exhibit C10/1 to C10/7.

OP has filed its evidence through Sh. P.C. Tripathi, the Zonal Manager and has not exhibited any specific document but has relied upon certain judgment.        

Both the parties have also filed their respective Written Arguments. 

The Commission has heard the arguments and perused the record. 

The facts are not in much dispute, i.e. the complainant had the policy right from the year 2013, his medical examination was done by the Panel Doctor of OP, the Complainant had disclosed all the facts with respect to his ailments including diabetes, the policy continued for about more than 3 years,  the Complainant got admitted in Kalra Hospital and was treated and a bill of Rs.240000/- was raised all are admitted fact.  The only disputed fact is the OP is claiming that in case the complainant/ the policy holder/ the Insured would be treated with Cardio Vascular System Treatment, the company would not pay until and unless 48 months has expired and in this case 48 months have not expired from the date of inception of policy up to the date of treatment.       

The contention of Ld. Counsel for complainant on the other hand is this contention was never explained at all and even otherwise this is only a presumption and conjectures and  therefore OP should have reimbursed the amount.      

The issue therefore, is whether merely on the presumption, the reimburse can be denied.  Law is well settled that if a condition like this has been incorporated by the Insurance company in its policy then it has to be specifically, directly and clearly explained to the complainant so that complainant should think to get the policy or not to get the policy. It is just like that when insurance company claims that insured has to disclose everything in so many words  with respect to the previous ailments, for that the company may think whether it has to grant the policy to the insured or not or whether loading charges have to be levied upon the insured while granting the policy or not etc. 

Until and unless both parties explained to each other with respect to their conditions, exclusions, liabilities, deeming provisions and even presumptions, and rights of the insured in specific words, such conditions cannot be enforced against each other.  In the entire Written Statement the OP has not stated at all as to whether this presumption / deeming condition was ever disclosed specifically to the complainant, that particular disease would not be covered up to the period of 48 months from the date of inception of policy and would be deemed treated as PED.  Apart from a mere incorporation of word that too in the presumptory language, the Commission is of the opinion that Insurance Company would not be justified in rejecting the claim and this amounts to unfair trade practices and deficiency in providing services, at that time, when it is required. 

In United India Insurance Co. Ltd vs Surinder Kaur Kohli 2007 SCDRC Delhi; and Life Insurance Corporation of India Vs. Sudha Jain 2007(2) CLT 423 SCDRC, Delhi

It was Held "We have taken a view that unless and until a person is hospitalized or undergoes operation in the near proximity of obtaining Mediclaim (insurance Policy) and has never suffered such an emergency and otherwise has been attending to day to day ordeals, his claim cannot be rejected. A person comes to know about the disease and name of the particular disease when he lands up in the hospital and undergoes operation or treatment. Otherwise the day to day problem of hypertension, diabetes, occasional pain in the chest or headache are not such diseases which should be treated as pre-existing disease for the purpose of rejecting the mediclaim of the insured, On the concept and meaning of words ‘disease’ and ‘pre-existing disease’ in reference to insurance policies we have drawn certain criterion for adjudicating mediclaims on the basis of medical literature as well as modern day stressful life. These are as under:

1. Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy. 
2. Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
3. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like, in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease. 
4. If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
5. Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased Person. 
6. Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above. 
7. Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.     
8. For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalized or operated upon at any age say for 20 years or so. 
9. Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground." 

In Satinder Singh vs National Insurance Co. Ltd. 2011 (NC) It was held:-

"We note that the Petitioners medical summary from both, Sir Ganga Ram Hospital and Batra Hospital states that the complaints for which the patient was treated was a recent occurrence. Both hospitals emphasized that he has no history of any serious discase and that he had experienced angina pains and related symptoms only a few weeks before his admission to the hospital. This makes it clear that the symptoms became known to the Petitioner after he had taken the medical insurance policy. The Respondent has also not been able to produce any evidence to the contrary nor has it been able to show that the Petitioner had ever taken medical treatment for his heart condition prior to his admission in the hospital in Amritsar which was after taking the medical insurance) and subsequently in the two hospitals in Delhi. The conclusion of the State Commission that the Petitioner must be having pre-existing is based on guess work and not on any concrete or specific evidence to support this statement. The order of the State Commission is, therefore erroneous and cannot be sustained and set aside.”

Keeping in view of above, the Commission is of the considered opinion that this contention of the OP is not well found.  As far as the contention of the OP for the Insurance amount i.e. the sum insured was Rs.3,00,000/- the same is well found. 

Keeping in view all the facts and also after perusing policy, the contention of the Counsel is not well found that the sum assured is Rs.236000/- as stated rather in the policy ‘sum assured’ is Rs.300000/-. 

Accordingly, it is ordered that OP would pay Rs.2,40,000/- (and not Rs.2,36,000/- as stated by the OP1) to the complainant  along with interest @ 9% p.a. from the date of filing the claim till actual payment is made along with compensation of Rs.25,000/- towards mental harassment and Rs.10000/- towards legal expenses.                      

This order be complied with within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room 

Announced on 16.02.2023