The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18517 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Dasarathi Jena …. Petitioner(s) -versus- Star Health and Allied Insurance Company Ltd., Bhubaneshwar & Anr. …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Pitambar Patra, Adv. Mr. Ramesh Chandra Sahoo-1, Adv. (for O.P.1) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-17.11.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition seeks indulgence of this Court against illegal repudiation of the claim of the policy holder- complainant of Star Health and Allied Insurance Co. Ltd. and the Insurance Ombudsman as well in contravention of the IRDA (Protection of Policyholders’ interest) Regulation, 2017. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 1 of 14 I. 2. FACTUAL MATRIX OF THE CASE: In the year 2019-20 and 2020-21, Covid-19 was spread all over the country like pandemic and that broke the back bone of the country and for that different insurance companies floated different schemes giving coverage to the persons suffered from Covid-19 and of them Opp. Party No-1 floated a policy in the name and style as " Corona Rakshak Policy" product UIN No- SHAHLIP21067V012021 to promote that business engaged the broker/agent in the locality. 3. The objective of the company is to ensure the interest of the policy holder suffering from Covid-19 are protected. To ensure that insurer fulfil their obligation towards policy holder and have in place standard procedure and best practices of sales and services of insurance policy. Accordingly M/S Unilight Insurance Broker Pvt. Ltd was engaged in floating the said policy and as such the petitioner fell in prey of such broker and insured his health under that policy and the broker took the proposal form from the petitioner and insured his health and issued a policy on the same date of proposal and issued policy effective from 23.06.2021 to the midnight of 04.01.2022 covering 195 of days insurance. It means that if the person insured fell ill being affected with the Corona and admitted in any empanel hospitals of the insurance company and after recovery he will be entitled to the sum assured of Rs 2,00,000/-(Two Lakhs) only. 4. The broker without procuring any document from the petitioner mentioned his age to be 44 years having date of birth of 03.05.1977 though he is much younger to that. However, on the very day of Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 2 of 14 taking proposal the broker served the Insurance Policy bearing Certificate No- P/191200/01/2022/003473. However, without issuing complete policy brochure to the petitioner, on receipt of premium of Rs 4,356/- (Four Thousand and three Hundred Fifty six) only issued a collection receipt. 5. The petitioner suffered from fever on 14.10.2021 and attended Govt Community Health Centre, Balakati, where the doctor advised the petitioner to have Corona test and accordingly the petitioner got himself tested at "Heredity Lifesciences Private Limited," Nayapalli, Bhubaneswar a government Regd Laboratory having its QR code, on dated 18.10.2021 and found Covid-19 Positive. 6. CHC, Balakati finding the petitioner Covid-19 positive referred to Sum Hospital for treatment issuing referral form. The said hospital is an empanelled hospital under the Opp. Party No-1 Insurance Company. So as such, on the admission of the petitioner in said hospital on 19.10.2021, he received treatment and discharged on 27.10.2021 after 9 days treatment. The Institute of Medical Science & Sum Hospital Siksha ’O’ Anusandhan is deemed University situated at K-8, Kalinga Nagar, Bhubaneswar, who consequently sent the discharge ticket with valid prescription and the details of treatment given to the petitioner to the office of the Opp. Party No-1 for necessary action. 7. During validity of the insurance period i.e 23.06.2021 to 04.01,2022, the petitioner suffered from Covid-19 from 19.10.2021 to 27.10.2021. He is therefore entitled to the sum assured under the insurance policy but Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 3 of 14 his claim has been repudiated by the Opp. Party No- 1 on 09.12.2021 without any intimation to the petitioner. But the petitioner after having made query about the status of his claim, was informed that his claim has been repudiated on 09.12.2021. 8. The petitioner soon after recovery from Covid submitted his claim enclosing the original copy of all the documents including laboratory test report, the referral form of medical officer, CHC, Balakati and patient discharge summary of Sum Hospital and other medical records in the office of the Opp. Party No-1 to process the claim, as per the requirement of the policy condition but no reply was received from them for a longer period. After waiting for some days, the petitioner enquired in the office of the Opp. Party No- 1 who returned his claim repudiating the same on the ground that the claim documents are fabricated for claim purpose which amounts to misrepresentation of facts. Hence challenging the same, this writ has been filed. II. PETITIONER’S SUBMISSIONS: 9. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 10. The Opp. Party No- 1 before rejecting the claim, ought to have given a notice to the complainant for hearing in the presences of their medical team to justify how the medical documents etc were fabricated for the purpose of claim. The petitioner therefore became the victim of the action of the Opp. Party No- 1 for not following the principle of natural justice before rejecting the claim. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 4 of 14 11. The terms and conditions of the policy has been enumerated in policy certificate indicating that "Lump-Sum benefit equal to 100% of the sum insured shall be payable on positive diagnosis of Covid, requiring hospitalisation for a minimum continuous period of 72 hours. The positive diagnosis of Covid shall be from a Government authorised diagnostic centre". 12. In the case of the Petitioner, he has complied all the requirement of the policy condition. But, his claim was rejected by the insurer. The petitioner soon after suffering from fever, attended local CHC and on his advice he got the pathological test conducted in a Government recognised laboratory at Heredity Lifesciences Private Limited, Nayapalli, Bhubaneswar, who did the RTPCR test and found the patient to be Covid positive. Owing to the said report, the CHC sent the patient for admission at " Sum Hospital ", where the petitioner was admitted on 19.10.2021 and discharged on 27.10.2021 receiving Covid treatment. The treatment period was for nine days all together, exceeding 72 hours of hospitalisation. As such, there is no scope for repudiation on the part of the insurer. 13. The petitioner being aggrieved with the decision of repudiation of claim by the Opp. Party No- 1 filed Appeal before the Insurance Ombudsman Forum, Bhubaneswar for redressal on 13.04.2022. The Ld. Ombudsman heard both the parties on 20.06.2022, over phone to the complainant through VC mode from the insurer and passed award on the same day. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 5 of 14 14. The impugned award reveals that the Opp.Party No- 1 admitted the insurance coverage of the petitioner from 23.06.2021 to 04.01.2022 for sum assured of Rs 2,00,000/- (Two Lakhs) and having affected with Covid-19 was admitted in Sum Hospital on 19.10.2021 and discharged on 27.10.2021 after receiving treatment there. He also submitted hospitalisation Certificate, NOeatment document for settlement of claim. But on examination of those documents like treatment details, medicine bills, indoor case papers, day to day progress report etc. the insurer found that at the time of admission the complainant was normal but to appropriate lump sum benefits of the policy he fabricated the document for claim and for that the claim was repudiated. It further reveals that the complainant in his argument relied on the hospital document while the Opp. Party No- 1 opined the documents were fabricated. 15. The petitioner having been suffered from a dreadful pandemic disease like Corona positive which was found out on RTPCR test in a Govt recognised laboratory and on looking to the testing report the medical officer of Balakati, CHC issued a referral form suggesting his admission in a Govt approved Covid hospital i.e Sum Hospital and the Doctor having satisfied with the testing report, immediately got him admitted in the Hospital on dated 19/10/2021 and after recovery discharge the petitioner on dated 27/10/2021 issuing discharge certificate. 16. The Sum Hospital is found empanelled by the Insurer Star Health and Allied Insurance Com. Ltd. The Hospital also sent all the documents Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 6 of 14 to the Insurance Company simultaneously while discharging the patient having learnt that the petitioner was insured under it. In all such circumstances the medical team of the insurer cannot give a negative opinion holding that the documents arc fabricated for the purpose of lump sum claim and the claimant is not eligible to get the claim. 17. As such the decision arrived at by the Opp. Party No-2 is very cryptic, and does not suggests that the Id. Ombudsman has applied his mind and the decision can be sustained in the eye of law. He has not assigned any reason to come to such conclusion and for that the decision is defeasible. The law is well settled in catena of decision that "recording of reason is an assurance that the authority concern applied its mind to the facts on record. It is pertinent to note that a decision is apt to be better if the reasons for it are set out in writing because the reason are that more likely to have been properly thought out. It is vital for the purpose of showing a person is receiving justice". 18. It is further suggested that he did not approve the findings of the insurer regarding to the fabrication of the medical evidence by the claimant for the purpose of claim but however according to him the claim is justified but since there is discrepancies in the age placed in different papers the same are not reliable and therefore the claim is not payable, it has not been shown that which part of the document shows different age in different document which rendered the claim is not payable. However on perusal of the policy copy shows that the age of the petitioner was 44 years at the time of insured being date of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 7 of 14 birth 03.05.1977 but the treatment paper shows his age to be of 38 years all through the medical document. 19. The findings of the Ld. Ombudsman is not clear, cogent which suggests that there is discrepancies in the age which renders the claim not payable. As such the findings cannot be sustained. Under Rule 8 (1) of the Regulation 2017 it is the duty of the insurer to furnish the copy of the proposal along with the policy certificate on accepting the insured from which the later could have known the inflated age quoted in the policy and he could have objected/protested the same. As such the age recorded in the policy certificate is not acceptable to the insured. However to justify his age as quoted in medical document 38 is in consonance with the Adhar Evidence produced by the petitioner recognising the year of birth as 1982, III. SUBMISSIONS OF OPPOSITE PARTY NO.1: 20. Per contra, learned Senior Standing Counsel for the Opp. Party No.1 intently made the following submissions: 21. On receiving the proposal and premium from the Petitioner, a Corona Rakshak Policy No.P/191200/01/ 2022/003473 was issued in favour of the Petitioner, covering the risk for the period from 23.06.2021 to 04.11.2022. Under the said Policy, the liability of the company is confined to the sum insured and is subject to the terms and conditions of and exclusions made in the Policy and the parties to the contract of insurance are obliged to strict performance of their respective part of contract and obligations stipulated in the Policy, which was explained Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 8 of 14 to and brought to notice of Petitioner, while accepting proposal for Policy. 22. During subsistence of the above Policy, this Opp. Party received intimation from the Petitioner that on 18.10.2021 he was allegedly tested Covid positive and undergone treatment at the Institute of Medical Science & Sum Hospital, Bhubaneswar as an indoor patient from 19.10.2021 to 27.10.2021 and claimed onetime benefits under the Policy. On receiving such intimation, Claim Intimation No.CIR/2022/191200/3408726 was registered and the Petitioner was requested to submit the medicine bills, indoor case reports of day to day progress of treatment and vital charts. On verification of the documents submitted by the Petitioner, several discrepancies were noticed, which generated suspicion about the genuineness of the said documents. In the Proposal Form as well as in Policy the date of birth of the Petitioner have been mentioned as 03.05.1977, which means he was about 44 years old on the date of issue of Policy, whereas in the so called RT PCR Report the age of the Petitioner has been mentioned as 39 years old and in the Outdoor Ticket and Referral Form issued by Community Health Centre (C.H.C.), Balakati it is 34 and 38 years respectively and in the Discharge Summery of Sum Hospital his age has been mentioned as 38 years. 23. In view of the aforesaid discrepancies with regard to age of the Petitioner, the medical team of this Opp. Party raised a genuine doubt about genuineness of the treatment papers and the claim made by the Petitioner and consequently, opined that the claim papers are Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 9 of 14 fabricated documents and have been designed for the purpose of insurance claim. Thus, the Petitioner having submitted false and fabricated documents to deceive this Opp. Party to make illegal gain, being the custodian of public money, this Opp. Party repudiated the claim for violation of Clause-8 of the Policy with due intimation to him. The Petitioner was also intimated, due to above reasons, the Policy issued in his favour is also liable to be cancelled. 24. As narrated hereinabove, the present writ petition involves disputed questions of facts and the Petitioner’s claim is based on fraudulent documents and the same cannot be adjudicated without oral and documentary evidence. Hence, the writ is not maintainable in its present form and is liable to be dismissed on that score. 25. The Petitioner having not availed alternative remedy available to him under different legislations/statutes, straight away he cannot be permitted to invoke the writ jurisdiction of this Court under Articles
Decision
226 and 227of the Constitution and as such the writ petition is liable to be dismissed in limine. 26. According to the declaration made by the Petitioner in the proposal form, his date of birth has been mentioned as 03.05.1977 and this Opp. Party can’t be blamed for the same. As admitted by the Petitioner on the very date of proposal, the Policy was handed over to him, it was open to him to demand for complete Policy and to brought to the notice of the agent about the alleged mistake for necessary correction, but the Petitioner having failed to do so, now it is not open to him to question the alleged discrepancy or to blame the agent or this Opp. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 10 of 14 Party for non-supply of complete Policy. The contention of the Petitioner in this regard is after thought and is liable to be rejected. 27. In this context, it is submitted that just to procure documents, the Petitioner chose to visit the C.H.C., Balakati. The Petitioner being a resident of Balianta, instead of consulting Doctors of premier Hospitals locating at Bhubaneswar, preferred to consult the Doctor of a Hospital locating in a remote place, which creates a grave doubt about the genuineness of the Annexures-3, 4 & 5 to the writ petition. Such doubt is further strengthened from the fact, when it is revealed from all these three documents; the age of the Petitioner has been differently mentioned. 28. Further, it is evident from the discharge summery, that the same has not been signed by the authorized Medical Officer of the Sum Hospital and as such the same is not an authenticated and reliable document. In this regard, it is respectfully submitted that just to take advantage of the then prevailing situation, a racket was going on to derive benefits out of these kind of Policies and the present case is one of the same. So, the documents relied upon by the Petitioner are no immunity to his case. It is not admitted that the Hospital authorities forwarded the treatment papers of the Petitioner to this Opp. Party. 29. It is false to allege that this Opp. Party didn’t inform the Petitioner about repudiation of his claim. As a matter of fact, the repudiation letter was duly communicated to the Petitioner. However, it is admitted that the Petitioner submitted certain treatment papers and this Opp. Party promptly acted upon the claim of the Petitioner with Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 11 of 14 due intimation to him and he was advised to contact this Opp. Party’s Senior Doctor on Phone No. 7305614888, if he is not satisfied with the repudiation of claim. 30. The petitioner was further advised to represent to the Grievance Dept. of this Opp. Party, if he is not satisfied with the decision of the Sr. Doctor and thereafter, if he wishes to pursue the matter further, he may represent to the office of the Insurance Ombudsman. It appears that the Petitioner without contacting the Sr. Doctor and representing to the Grievance Dept. of this Opp. Party, straight away made complaint before the Insurance Ombudsman. So, ample opportunities of being heard were given to the Petitioner to substantiate his claim. 31. This Opp. Party has never admitted that the Petitioner having affected with Covid-19 was admitted in Sum Hospital on 19.10.2021 and was discharged on 27.10.2021 after receiving treatment in the said Hospital. It is further denied that the Ld. Ombudsman without applying its judicial mind dismissed the complaint of the Petitioner. It would be evident from order that the Ld. Ombudsman took note of the case of the parties in an exhaustive manner, examined the documents on record filed by the parties and after hearing them in person, gave a reasoned order holding that the claim is not payable as the age of the Petitioner is different in different documents and are not reliable. 32. A bare perusal of order would reveal that the Ld. Ombudsman has dealt with the complaint of the Petitioner judiciously and after being satisfied with the reasons for repudiation of Petitioner’s claim, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 12 of 14 dismissed his complaint. So, the Ld. Ombudsman can’t be faulted with and the order is free from any kind of deformity or in any way erroneous, requiring interference of this Court. The citations relied on by the Petitioner in support of his claim are distinguishable and have no application to the facts and circumstances of the present case. IV. COURT’S REASONING AND ANALYSIS: 33. As per the terms and conditions of Policy, if during subsistence of the Policy the insured person is diagnosed with Covid and hospitalized for more than 72 hours following medical advice of a duly qualified Medical Practitioner as per the norms specified by Ministry of Health and Family Welfare, Govt. of India, the Opp. Party No.1 shall pay Rs.2,00,000/- to the policy holder, subject to terms, conditions, exclusions and definitions contained in the Policy. 34. As per Clause-7.3 (vi) of the Policy, the claim has to be supported with investigation reports including insured person’s test report from authorized diagnostic centre for Covid. As per Clause-8, the Policy shall be void and all premium paid thereon shall be forfeited to the Company in the event of misrepresentation, mis-description or non- disclosure of any material fact by the policyholder. 35. Admittedly, the age of the Petitioners have been described differently in different documents. So far as the Petitioner is concerned, his date of birth has been mentioned as 03.05.1977 in the Proposal Form, as well as in the Policy, which means he was 44 years on the date of submission of proposal form and issuance of Policy, whereas in RT PCR Report, his age has been mentioned as 39 years old and in the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 13 of 14 Out-Door Ticket it is 34 years and in the Referral Form, and Discharge Summery, it is 38 years. 36. In view of the aforesaid discrepancies in age, the medical team of the Opp. Party doubted the genuineness of the medical documents and opined that claim papers are fabricated documents. 37. Add on to above, the Discharge Summery of SUM Hospital, filed by the Petitioner doesn’t bear the signature of the authorized Medical Officer of the said Hospital, which creates a grave doubts about the genuineness of the said documents. Further, Clause-7.3 (vi) of the Policy envisages that the testing report must be from a authorized diagnostic centre for Covid. As it appears from the list of testing laboratories dated 11.06.2020 of ICMR, Heredity Lifesciences Pvt. Ltd. is not an authorized testing lab for Covid and as such Covid test report of said lab was not acceptable being not in consonance of Clause-7.3 (vi). So, as a whole the documents submitted by the Petitioner in support of his respective claims do not inspire confidence for which their claims have been repudiated. 38. With respect to the aforesaid discussion, this Court is not inclined to entertain the prayer of the petitioner. Accordingly, this Writ Petition is dismissed. Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 (Dr. S.K. Panigrahi) Judge Page 14 of 14