State Consumer Disputes Redressal Commission
The New India Assurance Company India ... vs Rakesh Kumar on 27 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 96 of 2014 Date of Institution : 18.03.2014 Date of Decision : 27.03.2014 The New India Assurance Company India Ltd., SCO No.36-37 (Ground Floor), Sector 17-A, Chandigarh, through Divisional Manager. Appellant/Opposite Party V e r s u s Rakesh Kumar son of Raj Kumar, resident of House No.1387/3, Pipli Bazaar, Ambala City (Haryana). ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER
Argued by: Sh.
Vishwajit Bedi, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 20.01.2014 rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-
In view of the above discussion, the present complaint is allowed. The opposite party is directed as under :-
i) To reimburse the medical claim of the complainant to the tune of Rs.2,24,929/-.
ii) To pay Rs.50,000/- as compensation for mental agony and harassment;
iii) To pay Rs.7,000/- as costs of litigation.
This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @18% per annum from the date of filing of this complaint till actual payment besides payment of litigation costs.
2. The facts, in brief are that the complainant took a Medicalim Policy 2007 (Hospitalization Benefit Policy) from the Opposite Party, for him and his family members, valid for the period from 31.05.2011 to 30.05.2012, for the total sum assured, to the tune of Rs.11 lacs i.e. Rs.4 lacs, for himself, Rs.3 lacs, for his wife Smt. Sudha Sharma and Rs.2 lacs, each, for his sons, Mr.Vivek Sharma and Mr.Mohit Sharma. Subsequently, the complainant got the said Insurance Policy renewed, for the period from 31.05.2012 to 30.05.2013, vide Annexure C-1, on payment of premium, to the tune of Rs.14,288/- plus Rs.1766/-, as service tax, totaling to Rs.16,054/-. It was stated that, at the time of issuance of the Policy, in question, to the complainant, neither any medical examination was got done, nor the terms and conditions of the same (Policy) were supplied, nor the same were explained to him.
3. On 19.10.2012, the complainant suffered from chest pain, for the first time. He was immediately taken to Mukat Hospital and Heart Institute, Sector 34-A, Chandigarh, where coronary angiogram was performed on him. The complainant was diagnosed to be suffering from atherosclerotic critical triple vessel coronary artery disease. Thereafter, the complainant was taken to Delhi Heart and Lung Institute, New Delhi, and was admitted in Emergency Ward, on 22.10.2012, where Aorto-coronary artery bypass grafting surgery x 4 (OPCAB), was performed on 23.10.2012. He was discharged on 31.10.2012.
4. Subsequently the complainant lodged claim, in the sum of Rs.2,24,929/-, the amount spent by him, for his treatment, in the aforesaid Hospitals, alongwith the relevant documents, but the same was repudiated by the Opposite Party, vide letter dated 21.11.2012, Annexure C-4, on the ground, that he was suffering from pre-existing diseases, but he did not disclose the same, at the time of filling in the proposal form and signing the same. It was further stated that repudiation of the genuine claim of the complainant was illegal and arbitrary. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the claim amount, to the tune of Rs.2,24,929/-, spent by him on his treatment aforesaid, alongwith interest @12% P.A.; compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.
5. The Opposite Party, in its written version, admitted the factum of issuance of a Medicalim Policy 2007 (Hospitalization Benefit Policy) to the complainant, and his family members, valid for the period from 31.05.2011 to 30.05.2012, for the total sum assured, to the tune of Rs.11 lacs i.e. Rs.4 lacs, for him, Rs.3 lacs, for his wife Smt. Sudha Sharma and Rs.2 lacs, each, for his sons, Mr.Vivek Sharma and Mr.Mohit Sharma. It was also admitted that, subsequently, the complainant got the said Insurance Policy renewed, for the period from 31.05.2012 to 30.05.2013, vide Annexure C-1, on payment of premium, to the tune of Rs.14,288/- plus Rs.1766/-, as service tax, totaling to Rs.16,054/-. It was stated that the said Insurance Policy was subject to the terms and conditions, which (terms and conditions) were supplied alongwith the same (Policy). It was also admitted that the complainant lodged claim, with the Opposite Party, in the sum of Rs.2,24,929/-, alongwith supporting documents. It was further stated that after scrutiny of the documents, submitted by the complainant, the claim was repudiated vide letter dated 21.11.2012, on the ground, that he was suffering from pre-existing diseases, which were excluded under Clauses 4.3 and 4.1 of the terms and conditions of the Policy. It was further stated that since the repudiation of claim was legal and valid, the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
9. We have heard the Counsel for the appellant/Opposite Party, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellant/Opposite Party, submitted that, at the time of issuance of the Policy, in question, the terms and conditions thereof, including the exclusions and warranties were supplied to the complainant. He further submitted that the exclusions and warranties were also explained to the complainant. He further submitted that the Policy, in question, was issued subject to its terms and conditions. He further submitted that the complainant was suffering from pre-existing diseases i.e. Hypertension and Diabetes Mellitus II. He further submitted that he failed to disclose the same, at the time of filling in the proposal form and signing the same. He further submitted that the pre-existing diseases aforesaid, were excluded under Clauses 4.3 and 4.1 of the terms and conditions of the Policy. He further submitted that, as such, the claim of the complainant was legally and rightly repudiated vide letter dated 21.11.2012. He further submitted that, as such, the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. He further submitted that the District Forum was wrong, in holding to the contrary. He further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside.
11. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. The first question, that falls for consideration, is, as to whether, the terms and conditions of the Policy, in question, alongwith the cover-note, or later on, were supplied to the complainant, and the exclusions and warranties were explained to him or not. In paragraph number 3 of the complaint, the complainant, in clear-cut terms, stated that when the Policy, in question, was received by him, neither the terms and conditions thereof, including the exclusions and warranties were supplied to him, nor the exclusions and warranties were explained to him. In reply to this paragraph, on merits, the Opposite Party denied that the terms and conditions of Policy, including the exclusions and warranties were not supplied to the complainant. It was also denied that the exclusions and warranties were not explained to him. Annexure C-1 is a copy of the cover-note of the Policy, in question, which was placed by the complainant, on the record. There is nothing, in this document, to the effect, that the terms and conditions of the Policy, were supplied to him. Since, it was the definite case of the complainant, in the complaint, which was duly supported by him, through his affidavit, submitted by way of evidence, that he was never supplied the terms and conditions of the Policy, in case, the same had been supplied by the Opposite Party, it could be said to be in possession of the best evidence, to prove this factum. By which mode, the terms and conditions of the Policy were supplied to the complainant, was not mentioned, in the written version of the Opposite Party. The Opposite Party could produce the courier receipt, or the postal receipt, showing the supply of a copy of the terms and conditions of the Policy. It, however, miserably failed to do so. In the absence of production of any documentary evidence, to the effect, that the terms and conditions of the Policy, were supplied to the complainant, an adverse inference could be drawn, against the Opposite Party, that the same were not supplied to him, at any point of time. Even the affidavit of the Advisor/Agent, who allegedly guided the complainant, at the time of filling in the proposal form and signing the same, was not produced, on the record, to show that actually the terms and conditions of the Policy, were supplied to the complainant, as also the main features including the exclusions and warranties were explained to him. Under these circumstances, the averments of the complainant, contained in the complaint, which were duly supported by him, through his affidavit, submitted by way of evidence, that neither the terms and conditions of Policy, including the exclusions and warranties were supplied to him, nor the exclusions and warranties were explained to him, remained un-rebutted. No doubt, in Annexure C-1, it was stated that this Policy was subject to Mediclaim Policy (2007) Clause as attached. From these words Clause as attached, by no stretch of imagination, it could be said that actually the terms and conditions of the Policy, were supplied to the complainant, or the main features thereof, including the exclusions and warranties were explained to him. The case of the complainant, to the effect that neither the terms and conditions of Policy, including the exclusions and warranties were supplied to him, nor the exclusions and warranties were explained to him, therefore is correct.
12. In M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. I (2000) CPJ 1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of Insurance Law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all material facts, in their knowledge. Since obligation of good faith applies to both equally, it was, thus, the duty of the Insurance Company/Opposite Party to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of it, to apprise the complainant, of the benefits of the insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the Insurance Policy and the terms and conditions thereof, including the exclusions and warranties to the insured, so as to enable him, to go through the same, and understand the Clauses contained therein. In United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr., III (2009) CPJ 246 (NC), it was observed that being aware of the existence of Policy, is one thing, and being aware of the contents and meaning of the Clauses of the Policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, since, neither the terms and conditions of Policy, including the exclusions and warranties were supplied to the complainant, nor the exclusions and warranties were explained to him, the Opposite Party could not invoke the same to repudiate the claim of the complainant.
13. The next question, that falls for consideration, is, as to whether, the complainant was suffering from any preexisting diseases, such as Hypertension and Diabetes Mellitus II, and failed to disclose the same, at the time of submitting the proposal form. No doubt, repudiation of the claim of the complainant was made, by the Opposite Party, vide letter dated 21.11.2012, on the ground, that there was concealment of preexisting diseases by him, at the time of inception of the Policy. It may be stated here, that it was for Opposite Party, to prove, by way of producing cogent and convincing documentary evidence, that the insured/complainant, suffered from any preexisting disease, at the time of inception of the Policy, but he failed to disclose the same. The complainant was only required to disclose those diseases, from which he was suffering, and which were in his knowledge, at the time of inception of the Policy, and not the other diseases, which were not in his knowledge. Human machinery is such, as nobody can predict, as to from which disease, he/she was suffering until and unless, some symptoms appear, and the person concerned undergoes the requisite tests, and diagnosis are made by the doctor(s), with regard to the same. In P.Vankat Naidu Vs. Life Insurance Corporation of India and Anr. 2011(4) CLT Supreme Court 494= IV (2011) CPJ 6 (SC), it was held that it was for the Opposite Parties, who had come out with the case, that the insured did not disclose the correct facts relating to his/her illness, to produce cogent evidence to prove the allegation.
14. In the instant case, in paragraph number 4 of the complaint, it was, in clear-cut terms, stated by the complainant, that, for the first time, on 19.10.2012, he suffered from chest pain, and was immediately taken to Mukat Hospital and Heart Institute, Sector 34A, Chandigarh, where coronary angiogram was performed on him. He was diagnosed to be suffering from atherosclerotic critical triple vessel coronary artery disease. Thereafter, he was taken to Delhi Heart and Lung Institute, New Delhi, and was admitted in Emergency Ward, on 22.10.2012, where Aorto-coronary artery bypass grafting surgery was performed on 23.10.2012, and, ultimately, he was discharged on 31.10.2012. Reliance, no doubt, was placed by the appellant/Opposite Party on Annexure R-4 (colly.), at page 73 of the District Forum file, that the final impression of the Doctor of Mukat Hospital and Heart Institute was that the complainant was suffering from Hypertension and Diabetes Mellitus II. Wherefrom, this Lama Summary was recorded by the Doctor of Mukat Hospital and Heart Institute, is not known. There is nothing, on the record, as to whether, this history was given by the complainant, or any of his attendants. No medical record, from any other hospital(s), wherefrom the complainant was allegedly getting treatment for alleged Hypertension and Diabetes Mellitus II, was produced by the Opposite Party. Had the complainant been suffering from Hypertension and Diabetes Mellitus II, earlier to his treatment, in Mukat Hospital and Heart Institute, certainly, he must have been taking treatment from other Hospitals. The Opposite Party could very well collect such treatment record of the complainant, from those Hospitals, and produce the same, with a view to prove that he was suffering from preexisting diseases, referred to above, before the inception of the Policy, in question. In the absence of production of cogent and convincing documentary evidence, in the shape of medical record of other Hospitals, wherefrom the complainant was allegedly getting treatment for the alleged diseases i.e. Hypertension and Diabetes Mellitus II, by no stretch of imagination, it could be said that he was suffering from such diseases, and he intentionally failed to disclose the same, at the time of filling in the proposal form and signing the same. Even the affidavit of the concerned Doctor, was not produced, to prove, as to wherefrom, he recorded this Lama Summary that the complainant was a case of Hypertension and Diabetes Mellitus II. Under these circumstances, no help can be drawn by the Counsel for the appellant/Opposite Party, from this document, to prove that the complainant was suffering from preexisting diseases i.e. Hypertension and Diabetes Mellitus II, and failed to disclose the same, at the time of inception of the Policy, and filling up the proposal form and signing the same.
15. It is generally seen that the Insurance Agents/Advisors allure the consumers, to get the Policy, holding out that they (consumers) will be entitled to all benefits, under the same, if they suffered from even the preexisting disease(s), and collect the premium(s) from them. As and when the Policy holders get the treatment for any disease, then the first and foremost response of the Insurance Company, is to repudiate the claim, on one pretext or the other. Such an attitude, on the part of the Insurance Companies cannot be appreciated. Since, it was not proved that the complainant was in the knowledge of the factum that he was suffering from Hypertension and Diabetes Mellitus II, earlier to the inception of the Policy, nor the Opposite Party produced any cogent and convincing documentary evidence, in the shape of medical records, that he was suffering from preexisting disease(s), by no stretch of imagination, it could be said that he actually suffered from the same, and, as such, the Policy was void. The District Forum was right, in holding that the repudiation of claim was illegal and arbitrary. The District Forum was also right, in holding that the Opposite Party was, thus, deficient, in rendering service to the complainant.
16. The next question, that falls for consideration, is, as to what amount, the complainant was entitled to. The complainant submitted the claim, in the sum of Rs.2,24,929/-. This fact was also admitted by the Opposite Party, in its written reply. Even, in the repudiation letter dated 21.11.2012, copy whereof is Annexure R-5 (colly.), it was admitted by the Opposite Party that the claim, in the sum of Rs.2,34,279/- (infact Rs.2,24,929/-), was submitted by the complainant, but the same was not approved, on the ground that he was suffering from preexisting diseases i.e. Hypertension and Diabetes Mellitus II, as he did not disclose the same, at the time of inception of the Policy. The District Forum was, thus, right, in directing the Opposite Party, to reimburse the medical claim of the complainant, in the sum of Rs.2,24,929/-.
17. No other point, was urged, by the Counsel for the appellant.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
27.03.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Rg