State Consumer Disputes Redressal Commission
Nic vs Vijay Lakshmi on 13 September, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.814 of 2004
Date of institution: 15.07.2004
Date of decision : 13.09.2010
National Insurance Company Limited, Gurdaspur through its Regional Manager,
SCO No.332-334, Sector 34-A, Chandigarh.
.....Appellants
Versus
1. Vijay Lakshmi widow of Kewal Krishan;
2. Jyoti (married) daughter of Kewal Krishan;
3. Bharti daughter of Kewal Krishan;
4. Rishi Kumar son of Kewal Krishan;
All residents of 1, Gopal Nagar, Smadh Road, Batala.
.....Respondents
First Appeal against the order dated 20.05.2004
passed by the District Consumer Disputes
Redressal Forum, Gurdaspur.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Lt.Col.Darshan Singh (Retd.), Member
Mrs.Amarpreet Sharma, Member Present:-
For the appellants : Sh.Mrigank Sharma, Advocate for Ms.V.A.Talwar, Advocate For the respondent : Sh.Raj Karan Singh, Advocate for Sh.Vipin Mahajan, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT Kewal Krishan (now deceased) (in short "the insured") husband of respondent No.1 and father of respondents No.2 to 4 had taken the mediclaim insurance policy from the appellants for a sum of Rs.5 lakhs which was valid for the period from 24.12.1999 to 23.12.2000. The said mediclaim policy was got First Appeal No.814 of 2004 2 renewed by the insured for the period from 21.12.2000 to 20.12.2001 but the amount of mediclaim insurance policy was reduced to Rs.4 lakhs.
2. It was further pleaded that the insured fell ill. On medical examination, it transpired that the kidney of the insured had failed and it needed transplantation. The insured arranged for a donor. Accordingly, the insured was admitted in Kakkar Hospital, Amritsar but the kidney was transplanted by Dr.P.K.Sarin on 13.02.2001. The insured had incurred an amount of Rs.3,32,939/-. He lodged the insurance claim with the appellants. It was repudiated by the appellants on 22.10.2001. Hence, the complaint for mediclaim. Compensation, interest and costs were also prayed.
3. The appellants filed the written reply. It was not denied that the insured had taken the mediclaim policy for the period from 24.12.1999 to 23.12.2000 for a sum of Rs.5 lakhs and it was renewed for the period from 21.12.2000 to 20.12.2001 and the amount of mediclaim policy was reduced from Rs.5 lakhs to Rs.4 lakhs.
4. It was, however, denied if the insured had suddenly fallen ill. Rather the insured was diabetic for the last 20 years which was the cause for failure of his kidney. However, the said disease was suppressed by the insured while filling the proposal form.
5. It was further pleaded that the insured had informed the appellants on 28.3.2001 that he had got the kidney transplanted from Kakkar Hospital, Amritsar on 13.02.2001. He had also submitted the bills. On receipt of this information, the appellants had sought technical opinion from Dr.Suresh Aggarwal who was a heart specialist and neurologist. Dr.Suresh Aggarwal examined the case file from the hospital from where the insured had allegedly got the kidney transplanted. Dr.Suresh Aggarwal personally visited the said hospital and after studying the complete details, he submitted his report dated 22.6.2001. He reported that the insured was admitted in the hospital on 7.2.2001 with the diagnosis "Diabetes with Hypertension with chronic kidney failure with End Stage First Appeal No.814 of 2004 3 Kidney disease". The insured underwent the kidney transplant operation and was discharged on 25.2.2001.
6. Dr.Aggarwal confirmed that the indoor file of the hospital revealed that the cause of disease of the insured was Diabetes from which he was suffering for the last 20 years. The cause of the current disease was existing very very long time before the insured took the mediclaim policy. Dr.Suresh Aggarwal also confirmed that the insured was suffering from ESRD (End Stage Renal Disease) for the last 6 months with respect to the date of his admission and the doctor had opined that the disease under consideration "Diabetic Nephropathy with chronic kidney failure with End Stage Kidney Disease" had not arisen suddenly. Hence, the repudiation of mediclaim of the respondent was legal and valid. Dismissal of the complaint was prayed.
7. The insured filed his affidavit Ex.C1. He also proved documents Ex.C2 to Ex.C76. On the other hand, the appellants filed the affidavit of Nirman Singh, Branch Manager as Ex.R1 and the affidavit of Dr.Suresh Aggarwal as Ex.R2. The appellants also proved documents Ex.R3 to Ex.R6.
8. The learned District Forum accepted the complaint vide impugned judgment dated 20.05.2004 with costs of Rs.1000/-. The appellants were directed to make the payment of Rs.2,60,439/- with interest @ 9% p.a. from 28.05.2001 till the date of payment.
9. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 20.05.2004 be set aside. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "Life Insurance Corporation of India and others v. Asha Goel (Smt.) and another, (2001) 2 Supreme Court Cases 160" and the judgment of this Commission dated 19.03.2009 passed in First Appeal No.981 of 2003 (Life Insurance Corporation of India v. Hardip Singh).
10. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be First Appeal No.814 of 2004 4 dismissed. Reliance was placed on the judgment of this Commission reported as "New India Assurance Co. Ltd., v. Surinder Kumar Bansal, 96(2) CLT 686" and of the Hon'ble Gujarat State Commission reported as "New India Assurance Co. Ltd., v. Rasiklal Bhogilal Patel, 1996(2) CLT 229"
11. Record has been perused. Submissions have been considered.
12. The admitted facts are that the insured had taken the mediclaim insurance policy from the appellants for a sum of Rs.5 lakhs for the period from 24.12.1999 to 23.12.2000. It was got renewed by the insured for the period from 24.12.2000 to 23.12.2001 (premium received on 21.12.2000). The amount of mediclaim insurance was Rs.4 lakhs for the insured. Copy of the insurance policy has been proved as Ex.C3.
13. It is also admitted that the insured was admitted in Kakkar Hospital, Amritsar with kidney failure. He had arranged for a donor and the kidney was transplanted by Dr.P.K.Sarin on 13.02.2001. The insured was discharged on 25.02.2001.
14. The submission of the learned counsel for the appellants was that the disease of the insured was existing prior to 24.12.1999 and therefore, the insured was not entitled to any mediclaim insurance. In order to prove the case, the appellants had relied upon the affidavit of Dr.Suresh Aggarwal Ex.R2 and his report dated 22.06.2001 Ex.R5.
15. Admittedly, Dr.Suresh Aggarwal had not medically examined the insured. He had submitted his report dated 22.06.2001 Ex.R5 only after examining the case file of the insured. Dr.Suresh Aggarwal in his affidavit Ex.R2 has only deposed that the insured was suffering from Diabetes for the last 20 years which became the cause of kidney failure. It has been held in a number of judgments by this Commission that Diabetes is not a material or fatal disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as it is a controllable disease. It was held by this Commission in First First Appeal No.814 of 2004 5 Appeal No.1674 of 2002 "L.I.C. of India and others v. Ramandeep Kaur and another" decided on 2.2.2009 as under:-
"16. So far as the law on the subject is concerned it was held by the Hon'ble Supreme Court in the judgment dated 10.10.1995 recorded in "Biman Krishna Bose vs. United India Insurance Co." Civil Appeal No.3438 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.
17. So far as diabetes is concerned, the same parameter will apply. Disease of diabetes is so common in our country men, at least in this part of the country, that almost every third person is suffering from it. If proper check is maintained on that disease it is not fatal and a person suffering from diabetes can live even for 20 to 30 years if he is taking proper medicines. Therefore non-disclosure of this disease by the assured does not entitle the Insurance Companies to repudiate the insurance claim."
16. Moreover, it was held by the Hon'ble Supreme Court in "Mithoolal Nayak v. Life Insurance Corporation of India, AIR 1962 Supreme Court 814"
that the claim can be repudiated by the insurance company only if the following conditions are proved by the insurance company : -First Appeal No.814 of 2004 6
"(a) the statement must be on a material matter or
must suppress fact which it was material to
disclose.
(b) the suppression must be fraudulently made by
the policy holder and
(c) the policy holder must have known at the time
of making the statement that it was false or that
it suppressed fact which it was material to
disclose."
17. The summary discharge of the insured reveals that the insured was suffering from kidney problem for the last 6 months (from the date of admission on 7.2.2001). It means, therefore, that there is no reliable evidence to prove if the insured was suffering from kidney disease prior to the insurance policy which was taken by him for the first time on 24.12.1999. The report Ex.R5 and the affidavit Ex.R2 of Dr.Suresh Aggarwal who had not medically examined the insured cannot be made the basis for repudiation as he has neither produced any record of his hospital nor he had medically treated the insured.
18. In Asha Goel's case (supra), the Hon'ble Supreme Court had reiterated the decision taken earlier by the Hon'ble Supreme Court in Mithoo Lal Nayak's case (supra). The Hon'ble Supreme Court also reiterated the view taken by it earlier in "Life Insurance Corporation of India vs. Smt. G.M.Channabasamma, 1991 (1) SCC 357" in which it was held as under : -
"It is well settled that a contract of insurance is contract uberrima fides and there must be complete good faith on the part of the assured. The assured is thus under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not. While making a disclosure of the First Appeal No.814 of 2004 7 relevant facts, the duty of the insured to state them correctly cannot be diluted. Section 45 of the Act has made special provisions for a life insurance policy if it is called in question by the insurer after the expiry of two years from the date on which it was effected. Having regard to the facts of the present case, learned counsel for the parties have rightly stated that this distinction is not material in the present appeal. If the allegations of fact made on behalf of the appellant Company are found to be correct, all the three conditions mentioned in the section and discussed in Mithoolal Nayak v. LIC of India must be held to have been satisfied. We must, therefore, proceed to examine the evidence led by the parties in the case."
19. There is no dispute with the proposition of law decided by the Hon'ble Supreme Court in Mithoo Lal Nayak's case (supra) or in Asha Goel's case (supra) but the question in the present case is whether the appellants have proved that the insured was suffering from kidney disease prior to the taking of the mediclaim policy by the insured on 24.12.1999 at the inception of the mediclaim policy.
20. As has been discussed above, the summary discharge of the hospital from where the insured had taken the medical treatment i.e. got the kidney transplanted revealed that the disease was 6 months old. If the summary discharge had revealed that the kidney disease of the insured was more than 2 years old then the appellants could have repudiated the claim but the repudiation cannot be based on the statement of Dr.Suresh Aggarwal Ex.R5 and on the basis of his report who did not have the opportunity to examine the insured for his disease.
21. So far as Hardip Singh's case decided by this Commission is concerned, that judgment is based on the judgment of the Hon'ble Supreme Court First Appeal No.814 of 2004 8 in Mithoo Lal Nayak's case and Asha Goel's case (supra). In Hardip Singh's case, the insured (Sukhdarshan Singh in that case) was admitted in the hospital of Dr.Kamal Baghi and the history of the disease of the insured (in that case) was contained in the medical record of Dr.Kamal Baghi (in that case). Therefore, the statement of Dr.Kamal Baghi was relied upon as he was the treating doctor of the insured (in that case).
22. In the present case, admittedly, Dr.Suresh Aggarwal had not medically treated the insured. Therefore, the judgment in Hardip Singh's case passed by this Commission does not help the appellants.
23. So far as the judgments relied upon by the learned counsel for the respondents is concerned, those help the respondents to the extent that the appellants have not produced any evidence to prove if the insured was suffering from kidney disease prior to 24.12.1999 when the insured had taken the mediclaim policy from the appellants.
24. Keeping in view the discussions held above, we do not find any merit in the present appeal and the same is dismissed.
25. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 15.07.2004. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondents equally by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
26. The interest on the amount of Rs.25,000/- shall stop running with effect from the date, the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,000/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
27. Remaining amount shall be paid by the appellants to the respondent equally immediately.
28. The arguments in this appeal were heard on 8.9.2010 and the order was reserved. Now the order be communicated to the parties. First Appeal No.814 of 2004 9
29. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (LT.COL.DARSHAN SINGH(RETD.) MEMBER (AMARPREET SHARMA) MEMBER September 13, 2010.
Paritosh