State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Vimal Vahan Jain on 12 March, 2009
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section-9 Clause (b) of the Consumer Protection Act, 1986) Date of Decision: 12-03-2009 Appeal No. FA-08/114 (Arising out of Order dated 05-11-2007 passed by District Forum (Centre), Kashmere Gate, Delhi, in Complaint No.259/2004) New India Assurance Company Limited, 5th Floor, Tower-II, Jeewan Bharti, Connaught Circus, New Delhi 110001. .. Appellant Versus Shri Vimal Vahan Jain, S/o. Late Shri S.P. Jain, R/o. 65/8, New Rohtak Road, New Delhi 110005. Also at: Jain Book Agency, C-9, Connaught Place, Post Box No. 133, New Delhi 110001. . Respondent CORAM JUSTICE J.D. KAPOOR, PRESIDENT MS. RUMNITA MITTAL, MEMBER
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR (ORAL)
1. This appeal is directed against Order dated 05-11-2007 passed by the District Forum whereby the appellant has been directed to pay Rs. 2.00 Lac with interest @9% from 12-12-2004 towards the balance amount of insurance claim against medi-claim policy and Rs. 5,000/- as compensation and Rs. 2,000/- cost of litigation.
2. The case of the respondent leading to the impugned Order in brief was that he had a policy with the appellant for the last seven years and the latest policy was effective for the period 28-03-2003 to 27-03-2004 for a sum of Rs. 5,45,000/-. The respondent during the existence of the policy was admitted to Delhi Heart & Lung Institute, New Delhi, for major heart complications and incurred an expenditure of Rs. 6,38,568/- on his treatment. However, the appellant insurance company allowed the claim only to the extent of Rs. 3,45,000/- and repudiated the claim of Rs. 2,93,568/-. Feeling aggrieved the respondent filed the instant complaint before the District Forum seeking payment of rest of the claim amount and compensati9on.
3. The appellant in its defence took the plea that neither the respondent nor his wife had lodged any claim during the first three years of policies and hence were given cumulative bonus $ 5% per year. Thus in effect at the time of renewal of policy w.e.f. 28-03-2003 the complainant was entitled to cumulative bonus @15% on a sum of Rs. 3.00 Lac i.e. a sum of Rs. 45,000/- each. The respondent however at the time of renewal of policy in the year 2003 sought enhancement of the sum insured under the policy by Rs. 2.00 Lacs each both in respect of self and his wife. But the respondent did not disclose any pre-existing illness and there being no previous claims, the appellant in good faith enhanced the cover under the policies in respect of the respondent and his wife by Rs. 2.00 Lac each and issued policy No. 312302/48/02/01338 for the period 28-03-2003 to 27-032004 with cumulative bonus of Rs. 45,000/- each on the original sum insured i.e. Rs. 3.00 Lac. There were no other changes except for the figures in the schedule which implied that the enhancement of cover by Rs. 2.00 Lac would not have applied to any pre-exiting disease as on the date of enhancement i.e. 28-03-2003.
Further that the respondent was hospitalized in Delhi Heart & Lung Institute for the period from 23-12-2003 to 28-12-2003 for Triple Vessel Disease with diabetes mellitus type-2, hypertension, CAD, unstable angina, PCTA + stent to LAD/LCX/RCA for which he submitted a claim of Rs. 6,35,568/-. On investigation it was found out by the appellant company that the respondent had a history of dyspnea on exertion class III for the last1-2years and thus it was apparent that he was fully aware of the said disease and had deliberately sought enhancement of the policy amount with a view to extract amount in respect of treatment of a disease which was already in existence.
4. On the aforesaid rival claims the District Forum formulated the following contentious question:-
Can the OP repudiate the claim of Rs. 2,00,000/- (limit which was enhanced on 28-03-2003) on the ground of pre-existing disease
5. Let us assume that the appellant cannot bifurcate the admissible amount into two categories. Though the facts of the case and the duration of treatment received by the respondent was in the intervening period of enhanced amount of insurance policy and the plea of the knowledge about pre-existing disease being not available to the appellant, still we are of the view that the appellant was only liable to pay the balance amount from the entitled amount of Rs. 5.45 Lacs i.e. Rs. 5.45 Lacs less Rs. 3.45 Lacs.
6. We have taken a view that unless and until the insured is hospitalized or undergoes operation for any disease in the near proximity of the policy, say a year or two, he cannot be accused of concealing the factum of pre-existing disease.
7. However, in view of the peculiar facts of the case and the enhanced interpretation of the policy given by the appellant which was of adjudicatory nature, we do not find it a case for awarding interest, as interest is awarded on equitable grounds wherever there is no term of contract of liability of the other party to pay interest in such eventualities.
8. In the result, we allow the appeal partly by maintaining the direction to pay Rs. 2.00 Lacs besides Rs. 5000/- and Rs. 2000/-.
9. Appeal stands disposed of in aforesaid terms.
10. Order shall be complied with within one month from the date of receipt of a copy of this Order.
11. Copy of Order, as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record.
12. FDR/Bank Guarantee, if any, be released under proper receipt.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK