The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18748 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Mayadhar Dehuri Star Health and Allied Insurance Company Ltd., Bhubaneswar & Anr. -versus- …. …. Petitioner Opposite Parties Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Pitambar Patra, Adv. For Opposite Parties : Mr. Ramesh Ch. Sahoo-1, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-11.10.2023 DATE OF JUDGMENT: -18.10.2023 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 Policy- holder interest) Regulation, 2017. I. FACTUAL MATRIX OF THE CASE: 2. The Opp. Party No-1 floated a policy in the name and style as "Corona Rakshak Policy" product UIN No- SHAHLIP21067V012021 Signature Not Verified and to promote the same, they engaged the broker agent in the Page 1 of 13
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 locality. The objective of the policy was to ensure that the interest of the policy holder suffering from Covid-19 are protected. To ensure that insurer fulfill their obligation towards policy holder and have in place standard procedure and best practices of sales and services of insurance policy. 3. Accordingly, M/S Unilight Insurance Broker Pvt. Ltd was engaged in floating the said policy and as such the petitioner fell prey to such broker and insured his health under that policy. Thereafter, the broker took the proposal form from the petitioner and insured his health and issued a policy on the same date of proposal. The issued policy was effective from 08.07.2021 to the midnight of 19.01.2022 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, then after recovery he will be entitled to the sum assured of Rs 2,00,000/- (Two Lakhs) only. 4. With that end in view the broker took a proposal from the Petitioner on 08.07.2021 and issued him a policy bearing Certificate No- P/191200/01/2022/004230 which was valid from 08.07.2021 to 19.01, 2022. The petitioner to his ill luck suffered from fever on 14.10.2021 and attended Govt Community Health Centre. Balakati, where the doctor advised the petitioner to have Corona test. Accordingly, the petitioner got himself tested at Heredity Lifesciences Private Limited." Nayapalli, Bhubaneswar, a Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 2 of 13 government Regd Laboratory on 16.10.2021 and was found Covid- 19 Positive. 5. CHC, Balakati finding the petitioner Covid-19 positive referred to Sum Hospital for treatment issuing referral form on 19.10.2021.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 received treatment and was 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. 6. During validity of the insurance period i.e. 08.07.2021 to 19.01.2022, the petitioner got affected with Covid-19 having suffered from 19.10.2021 to 27.10.2021. He is therefore entitled to the sum assured under the insurance policy but his claim has been repudiated by the Opp. Party No-1 on 09.12.2021 without any intimation to the petitioner. The petitioner after having made query about the status of his claim, was informed that his claim has been repudiated on 09.12.2021 and served the copy of the decision of ‚repudiation of claim" on the Petitioner. 7. The petitioner soon after recovery from Covid submitted his claim enclosing the original copy of all the documents including Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 3 of 13 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 however, no reply was received from them. 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 as follows:- "On a perusal of medical records, the documents and details available with us, our medical team is of the opinion that the claim documents are fabricated for claim purpose which amounts to misrepresentation of facts.” 8. 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. 9. 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 Learned Ombudsman heard both the parties on 20.06.2022, over phone to the complainant and VC mode from the insurer and passed award on the same day. 10. The impugned award reveals that the Opp. Party No.1 admitted the insurance coverage of the petitioner from 08.07.2021 to 19.01.2022 for sum assured of Rs 2,00,000/-(Two Lakhs) and having suffered Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 4 of 13 from 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, treatment 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 however, to appropriate lump sum benefits of the policy he fabricated the document or claim and for the same, the claim was repudiated. The award further reveals that the document like policy copy and photocopy of medical report were placed before the Ombudsman who considered all the material facts produced before him and passed the impugned award as follows:- “Taking into account the facts and circumstances of the case and submissions made by both the parties during the course of hearing, the forum verified the document and the age is different in different document and are not reliable. Therefore, the claim is not payable. Accordingly the complaint stands dismissed.” 11. Being aggrieved by the said decision, the petitioner has filed this Writ Petition. II. PETITIONER’S SUBMISSIONS: 12. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 5 of 13 13. 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. The action of the Opp. Party No-1 is against the spirit of natural justice as decided by the Apex Court reported in 2017 (2) OLR (SC) 503, to the effect that " Opportunity of hearing- no such order which affects a person financially should be made behind the back of him- persons suffering civil consequences are entitled to notice and a hearing as a part of air play in the action". As such it is not known how the medical team of the insurer came to a conclusion that the documents filed were fabricated for the purpose of claim and for that the claim is spurious and is liable for repudiation. 14. The insurer with a mala-fide intention has adopted unfair trade practice by rejecting the genuine claim of the petitioner. As such their action cannot be sustained in the eye of law. 15. 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 or 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". 16. In the case of the Petitioner has complied all the requirement of the policy condition. But still his claim was rejected by the insurer. The petitioner soon after suffering from fever, attended local CHC, Balakati and on his advise did pathological test in a Government Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 6 of 13 recognised laboratory at Heredity Life Sciences Private Limited, Nayapalli, Bhubaneswar, who did the RTPCR test and found the patient Covid positive. Basing on the said report, the CHC ent 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. 17. As such the decision arrived at by the Opp. Party No- 2 is very cryptic, and does not suggests that the learned 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 reasons are that more likely to have been properly thought out. It is vital for the purpose of showing a person is receiving justice. 18. Further, the Insurance Ombudsman is the creature of statute under regulation 16 of the Insurance Ombudsman Rules 2017 is a body discharging duty of a quasi-judicial authority. So any decision rendered by such authority if devoid of any reason would amount to arbitrary, unfair and violation of Art 14 & 21 of the Constitution Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 7 of 13 of India. The reasons are required to be given to know the mind of the authority who has passed the order, in absence of which the order cannot be sustained. 19. The finding so recorded by the Learned Ombudsman does not appear to have applied proper application of mind and have explained as to how on verifying the document found the age are different in different document and thus are not reliable. It further suggests 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. 20. The findings of the Learned Ombudsman are not clear, cogent which suggests that there are discrepancies in the age which renders the claim not payable. It is humbly submitted that the age of insured-Petitioner has been shown to be 31 years as per policy certificate and the same find corroboration in medical evidence in discharge ticket etc in consonance with the age recorded in the policy certificate and there having no discrepancies in the age for which the claim can be liable for repudiation. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 8 of 13 III. SUBMISSIONS OF OPPOSITE PARTY NO.1: 21. Per contra, learned counsel for the Opp. Party No.1 intently made the following submissions: 22. During subsistence of Policy, on 09.11.2021 the Petitioner submitted Claim Form-Part-B and on 10.11.2021 submitted Claim Form-Part-A before this Opp. Party. It was revealed from the said Claim Forms that on 19.10.2021 the Petitioner was admitted in SUM Covid Hospital, Bhubaneswar with history of fever, cough, SOB, nausea and chest pain and was discharged on 27.10.2021 and his date of birth was 15.05.1991. On receiving such intimation, this Opp. Party registered the same as Claim Intimation No.CIR/2022/191200/2978083. On being requested to submit all documents concerning his treatment and bills/vouchers in support of the claim, though the Petitioner submitted Covid Test Report, Out-Door Ticket of CHC, Balakati, Referral Form of CHC, Balakati, and Discharge Certificate of SUM Hospital, Bhubaneswar, but failed to submit the bills/vouchers in support of his claim. 23. On perusal of above documents submitted by the Petitioner, the medical team of this Opp. Party found that the age of the Petitioner was mismatching with each other as mentioned in different documents. To be more particular, the age of the Petitioner has been mentioned as 31 in the Policy, 21 in the Covid Test Report and 32 in all other documents. Add on to above, in the Proposal Form the date of birth of the Petitioner has been mentioned as 01.01.1990, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 9 of 13 whereas in the Claim Form it is 15.05.1991. So, the medical team of this Opp. Party raised a genuine doubt about the genuineness of the said treatment papers and opined that the said documents are fabricated documents, which amounts to misrepresentation of facts. Thus, the Petitioner having submitted false and fabricated documents to deceive this Opp. Party to make illegal gain, his claim was repudiated for violation of Clause-8 of the Policy with due intimation to him under letter dated 09.12.2021. Due to above reasons, the Policy was also cancelled with effect from such date. 24. As narrated hereinabove, since 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 evidence, both orally and documentary, the Writ Petition is not maintainable in its present form and is liable to be dismissed. 25. As a matter of fact, the Petitioner was duly communicated with the said letter of repudiation with an advice to seek clarification, if any on rejection of his claim from the Senior Doctor on the given phone number and in case of any further grievance, to make representation to the Grievance Deptt. in the given address and thereafter to pursue the matter before the Insurance Ombudsman, if he so likes. However, the Petitioner without approaching the Senior Doctor and the Grievance Dept. straight away approached the Insurance Ombudsman, who after examining the claim of the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 10 of 13 Petitioner rejected the same as the documents filed by him were not reliable. 26. As regards the award of the Learned Ombudsman, it is respectfully submitted that the Learned 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 the parties in person, gave a reasoned order holding that the age of the Complainant mentioned in different documents are not consistent with other and hence, the same are not reliable and as such the claim is not payable. A bare perusal of Annexure-6 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, dismissed his complaint. So, the Learned Ombudsman can’t be faulted with and the impugned order under is free from any kind of deformity or in any way erroneous, requiring interference of this Court on any of the grounds made in
Decision
the Para-12 of the writ petition, particularly when the Petitioner has not given any explanation about the discrepancies as to his age and date of birth as mentioned in different documents filed and relied IV. 27. on by him. COURT’S REASONING AND ANALYSIS: It is hereby clarified that Clause-7.1 of the Policy envisages that upon the happening of the covered event, which may give rise to a claim under the Policy, notice with full particulars shall be sent to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 11 of 13 the Company within 15 days from the date of diagnosis of Covid. Considering that the Petitioner alleged to have tested positive on 16.10.2021, the notification of claim ought to have been made on or before 30.10.2021 however, only on 10.11.2021 the Petitioner submitted the claim. It is false to allege that the claim of the Petitioner was not dealt with for a long period. 28. Moreover, the claim of the Petitioner was disposed of within the stipulated period of 30 days from the date of receipt of the Claim Form. So far as providing an opportunity of being heard is concerned, learned counsel for the Opposite Party No.1 has clarified that under letter of repudiation the Petitioner was advised to contact the Senior Doctor, in case any question on the rejection is required but he failed to avail such opportunity, for the reasons best known to him. Even, the Petitioner failed to pursue his grievance before the Grievance Dept. of this Opp. Party. Therefore, ample opportunity of being heard was given to the Petitioner and principle of natural justice was well maintained by this Opp. Party and no unfair trade practice was adopted to negative the claim of the Petitioner. 29. On perusal of above documents submitted by the Petitioner, the medical team of this Opp. Party found that the age of the Petitioner was mismatching with each other as mentioned in different documents. To be more particular, the age of the Petitioner has been mentioned as 31 in the Policy, 21 in the Covid Test Report and 32 in Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 12 of 13 all other documents. Add on to above, in the Proposal Form the date of birth of the Petitioner has been mentioned as 01.01.1990, whereas in the Claim Form it is 15.05.1991. So, the medical team of this Opp. Party raised a genuine doubt about the genuineness of the said treatment papers and opined that the said documents are fabricated documents, which amounts to misrepresentation of facts. Thus, the Petitioner having submitted false and fabricated documents to deceive this Opp. Party to make illegal gain, his claim was repudiated for violation of Clause-8 of the Policy with due intimation to him under letter dated 09.12.2021. 30. As narrated hereinabove, since 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 evidence, both orally and documentary, the Writ Petition is not maintainable in its present form and is liable to be dismissed. 31. From the conspectus of factual matrix, this Court is unable to accede to the submission of the petitioner. In light of the aforesaid discussion and having regard to the present position of law, this Court is not inclined to entertain the prayer of the Petitioner. 32. Accordingly, this Writ Petition is dismissed. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 18th Oct., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 13 of 13