State Consumer Disputes Redressal Commission
Tata Aig Gen Ins Co Ltd vs Arjanbhai R Barvadiya on 31 March, 2023
Details DD MM YY
Date of disposal 31 03 2023
Date of filing 07 06 2016
Duration 24 09 06
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
APPEAL NO. 500 of 2016
1. TATA AIG GENERAL INSURANCE COMPANY LIMITED
A Company having its Registered Office at
Peninsula Business Park, Tower A,
15TH Floor, Ganpat Rao Kadam Road,
Lower Parel, Mumbai-400 013.
2. TATA AIG GENERAL INSURANCE COMPANY LIMITED
Add: 10th floor, Vishwakarma Arcade,
Majoora Gate, Ring Road,
Surat.
Both represented through
TATA AIG GENERAL INSURANCE COMPANY LIMITED
ADD: Turquise, Panchhvati Cross Road,
C. G. Road, Ahmedabad- 380006. ...Appellant.
VERSUS.
1. ARJANBHAI RAVAJIBHAI BARVADIYA
A-7, Sangana Society,
Near, Shyamdham Chawk,
Puna-Simada Road,
Surat.
2. AXIS BANK LIMITED.
ADD: Ground Floor, J R Square,
Mamta Park-1, Near Shivani Motors,
Kapodra, Varachha Road, Surat.
3. FAMILY HEALTH PLAN [T.P.A] LTD.
Ground Floor, Srinilaya,
Cyber Specio,
Road No. 2, Banjara Hills,
Hyderabad- 500034. ...Respondents.
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BEFORE: Mr. I. D. Patel, Judicial Member
K.Navlakha A/16/500 Page 1 of 8
APPERANCE: Mr. R. P. Raval, L. A. for the appellants.
Mr. Shailesh D. Pipaliya, L. A. for the respondent No. 1,
Mr. Prakash S. Gogia, L. A. for the respondent No. 2,
Respondent No. 3 Served Absent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The appellant TATA AIG General Insurance Co. Ltd. has filed this appeal Under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 30.03.2016 passed by the Ld. Consumer Disputes Redressal Forum, Surat(main), in Consumer Complaint No. 27/2014. The appellants are the original opponents No. 2 and 3 where as respondent No. 1 is the original complainant and the respondent No. 2 is the original opponent No. 1 and respondent No. 3 is the original opponent No. 4 in this appeal. Therefore, for the sake of convenience parties are referred to by their original nomenclature/status.
2. Brief facts of the complaint are that the complainant and his wife had taken medical Policy namely Family Floater Plan form the opponent TATA AIG General Insurance Company Ltd. Of sum insured of Rs. 2,00,000/- for the period of 11.03.2013 to 10.03.2014. it is further the case of the complainant that while taking Insurance Policy the complainant has stated correct information regarding health condition income and age of the complainant and her wife in the proposal form. It is further, the case of the complainant that as on 21.09.2013 the complainant admitted in the P. P Savani Heart Institute for "ACUTE ICOMI (NYX) with Cardiogenic Shock with HTN with and on 24.09.2013 the complainant came to be discharged from the said Hospital. It is further, the case of the complainant that the complainant incurred expenses of Rs. 1,69,304/- for the Medical treatment and therefore, the complainant lodged the claim with the opponent TATA AIG General Insurance Co. Ltd. For reimbursement of the medical expenses incurred by the complainant but the Insurance Company has not paid the said amount and repudiated the claim of the complainant on the ground of suppression of Pre-existing disease in the proposal form, it is further the case of the complainant that the Insurance Company has falsely repudiated the claim of the complainant and thereby, committed deficiency in service hence the complainant filed the complaint against the opponents before the Ld. Consumer Disputes Redressal Forum, Surat(main), K.Navlakha A/16/500 Page 2 of 8
3. That the opponents have appeared through their Ld. Advocate and opponent Insurance Company filed the written statement denying all the allegation made by the complainant against Insurance Company regarding deficiency in service. It is further contended by the Insurance Company that the complainant had not disclosed the correct fact regarding his health condition in the proposal form and as per the medical records include discharge summery of the complainant of P. P. Savani Heart Institute the complainant was suffering Hypertension since last 5 years on treatment and this amounts to the suppression of Pre- existing illness/disease in the proposal form, and therefore, the Insurance Company has rightly repudiated the claim of the complainant as per the terms and conditions of the Insurance Policy.
4. After hearing the Ld. Advocate of the parties and after perusal of the record of the case the Ld. Consumer Disputes Redressal Forum, Surat(main), partly allowed the complaint of the complainant and directed the opponent Insurance Company to pay Rs. 1,69,304/-along with interest at the rate of 9%to the complainant and also directed to pay Rs. 2,000/- for the mental harassment and 1,000/- for the cost of litigation vide order dated 30.03.2016 and therefore, the appellant Insurance Company has filed the present appeal against the impugned judgement and order on the ground stated in the appeal memo.
5. That the Ld. Advocate Mr. R. P. Raval on behalf of the Insurance Company has vehemently submitted that the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat(main), in case No. 27/2014 dated 30.03.2016 is not just and proper. That Ld. Advocate of the appellant Mr. R. P. Raval has also submitted that the finding recorded by the Ld. Consumer Disputes Redressal Forum, Surat(main), for allowing the complaint are also not based on record of the case and against the terms and conditions of the Insurance Policy. That the Ld. Advocate Mr. R. P. Raval, has submitted that the contract of Insurance Policy is based on "utmost good faith"
and accordingly insured has to disclosed all the material fact correctly in the proposal form, that he has also submitted that before taking Insurance Policy in question the insured had filed proposal form the copy thereof is produced at page 9 to 11 and in the column No. 5 the insured answered all the question of medical condition in "NO". Furthermore, Ld. Advocate Mr. R. P. Raval, has submitted that after the insured lodged the claim the Insurance Company found from the medical treatment papers K.Navlakha A/16/500 Page 3 of 8 of the insured of the P. P. Savani Heart Institute Surat, more particularly from discharge summery and claim form as well as certificate issued by Dr. Devang Desai dated 12.10.2013 that according to history given by the patient relative insured Arjanbhai R. Barvadiya, was suffering hypertension since 5 years. So, the insured was the known case of hypertension since last 5 years as per the medical treatment papers of the P. P. Savani heart institute. It is further submitted by the Ld. Advocate Mr. R. P. Raval, that when the insured has not disclosed the said illness in the proposal form as per the terms and conditions of the Insurance Policy there is a material suppression by the insured and therefore, the Insurance Company has rightly repudiated the claim of the complainant. So, as per the submission of Ld. Advocate Mr. R. P. Raval, that when the complainant suppress the material facts in the proposal form then insured is not entitled to claim any amount of medical treatment expenses from the Insurance Company. That he has also submitted that as per the medical literature of EPIDEMYOLOGY of Cardio Vascular disease hypertension is a major clause of Cardio Vascular Disease. That in support of his submission the Ld. Advocate Mr. R. P. Raval has also place reliance upon the decision of the Hon'ble Apex Court in the case of Branch Manager of Bajaj Allianz Life Insurance Co. Ltd. Vs. Dalbir Kaur reported in AIR 2020 Supreme Court 5210 as well as on the judgment of the Hon'ble Apex Court in the case of LIC of India Vs. Manish Gupta reported 2019 (11) SCC 371 that Ld. Advocate Mr. R. P. Raval has also place reliance upon the decision of the Hon'ble National Commission in the case of Tarun Berival Vs. Oriental Insurance Co. Ltd. Reported I (2019) CPJ 295 (NC) and submitted that when the insured failed to disclose that he was suffering from hypertension for last 5 years in the proposal form then insured/complainant not entitled any claim of medical treatment expenses and accordingly the repudiation of the Insurance Company is justified and as such the Ld. Advocate Mr. R. P. Raval has submitted to allow the appeal filed by the Insurance Company by quashing the impugned judgment and order of the Ld. Consumer Disputes Redressal Forum, Surat(main).
6. Per contra Ld. Advocate Mr. Shailesh Pipaliya, on behalf of the complainant has submitted their written submission whereby he has supported the impugned judgment and order of the Ld. Consumer Disputes Redressal Forum, that he has also submitted that the finding recorded by the Ld. Forum, for allowing the complaint of the complainant are just and proper and based on evidence on record that he has also K.Navlakha A/16/500 Page 4 of 8 submitted that the Ld. Forum, has rightly discarded the rejection of the claim of the Insurance Company that he has also submitted that when the complainant has categorically denied in rejoinder affidavit that his relative has given history in the P. P. Savani Hospital that to effect that complainant was suffering from hypertension since 5 years then as per the provision of Indian evidence Act. the burden lies on the Insurance Company to prove the said facts by leading cogent and reliable evidence including the examination of concern doctor but the Insurance Company has no examined the concern doctor who had recorded the history of the complainant that he was suffering from hypertension since 5 years and therefore, the Insurance Company has miserably failed to prove the ground stated in the repudiation and accordingly Ld. Advocate of the complainant submitted to dismiss the appeal filed by the appellant.
7. That the Ld. Advocate Mr. Prakash S. Gogiya, on behalf of the AXIX Bank has also filed their written submission wherein he has stated that there is no contract between the Bank and the insured and as such there is a no deficiency in service on the part of the respondent bank. That he has also submitted that there is no any cause of action arisen against the opponent bank to file the present complaint and back is also not necessary party in the proceedings therefore, he has submitted to exonerate the bank from the payment of any amount of compensation to the complainant.
8. I have heard the Ld. Advocate Mr. R. P. Raval on behalf of the TATA AIG General Insurance Co. Ltd. That I have also perused the written submission filed by the Respondent No. 1 original complainant and Respondent No. 2 AXIX Bank Ltd. in great detail. That I have also gone through the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat(main), in Case No. 27/2014 dated 30.03.2014 and I have also gone through the documentary evidence produced before the Ld. Forum, by the parties of the case. That herein this case the Insurance Company has repudiated the claim of the complainant on the ground of suppression of material fact and more particularly suppression of Pre-existing disease in the proposal form that the Insurance Company has place reliance on the medical treatment papers of the complainant of the P. P. Savani Heart Institute and multi speciality hospital to prove that the complainant was suffering from hypertension since 5 years which was suppress in the proposal form, therefore, it would be worthwhile to referred the said medical records and K.Navlakha A/16/500 Page 5 of 8 the proposal form of the complainant. That the proposal form of the complainant is produced on page 9 to 12 and in column No. 5. Insurance Company has asked Six questions regarding medical conditions of the complainant wherein Insurance Company has also specifically asked the question No. 1 that have you in the past 5 years suffered from or are you currently suffering from any disease illness injury or accident other then common cold or viral fever? and answered all the said questions is given "NO" by the complainant. furthere, if we perused the certificate of Dr. Devang Desai, of P. P. Savani Heart Institute dated 12.10.2013 page 40 wherein the Doctor has mentioned that the complainant Arjanbhai R. Barvadiya, was suffered from HTN according to history given by patient relative since 5 years and take regular medicines. That on perusal of the claim form filed by the complainant for claiming the amount of medical reimbursement from the Insurance Company which is produced at page 41 to 44 and on page 44 on the Top of the right side it is mentioned that there is a Co-morbidities of HTN to the complainant and the said claim form is also certified by the Dr. Devang Desai of P. P. Savani Heart Institute not only that if we perused the discharge card/summery of the P. P. Savani Heart Institute of the complainant on page 45 wherein also it is categorically mentioned that the complainant is known case of hypertension since 5 years. Furthermore, if we perused the progress notes of the complainant Arjanbhai of P. P. Savani Heart Institute dated 21.09.2013 page 54 wherein it is also categorically stated that the complainant is a known case of hypertension. So, medical record of the complainant of P. P. Savani Heart Institute and multi speciality hospital categorically indicates that Mr. Arjan R. Barvadiya, was suffering from hypertension since 5 years as per the history given by the relative of the patient.
9. That the complainant has filed the counter affidavit against the written statement of the Insurance Company wherein he has denied the fact that he was suffering from hypertension since 5 years as per the history given by the relative of him. But their denial in the rejoinder affidavit is not sufficient because as per the decision of the Hon'ble National Commission in the case of Pushpa A. Patel Vs. HDFC Standerd Life Insurance Company first appeal No. 630/18 dated 3.05.2018 when complainant submit that the wrong information was recorded in the certificate or/in the discharge summary by the Doctor then it was the duty of the complainant to approach the concern Hospital to correct the discharge summary or any certificate and to clarify that no such information had K.Navlakha A/16/500 Page 6 of 8 actually be given by the any relative or attendant of the patient but here in this case the complainant had not made any such attempt to obtain such correction from the hospital before filing of the Consumer Complaint or during the pendency of the said complainant and therefore, as per the considered view of this commission as per the provisions of Indian Evidence Act also when the Insurance Company has prove the fact that the patient relative had given history in the P. P. Savani hospital that patient i.e. complainant suffering hypertension since 5 years then the burden lies on the complainant to disprove the same by rebuttal evidence that means that is to correct the information recorded in the medical treatment papers as well as certificate/discharge summery of the Hospital. So, accordingly to settled principal of law there is no requirement of law to examine the doctor of the P. P. Savani Hospital who had recoded the history of the complainant/or the patient in the certificate or in the discharge summary to prove the said facts and accordingly the finding recorded by the Ld. Forum, in para 7 of the impugned judgment and order that the Insurance Company has not prove the history of the complainant that he was suffered from hypertension since 5 years by examining the concern doctor is totally perverse and erroneous and against the settled principal of law.
10. That here in this case when the Insurance Company has successfully prove that the insured was suffering hypertension since 5 before taking policy and insured has suppress the said material facts in the Column No. 5 of the proposal form, then as per the decisions of the Hon'ble Apex Court as well as Hon'ble National Commission as referred in the submission of the Ld. Advocate of the Insurance Company the complainant/insured is not entitled to get any amount of medical treatment expenses from the Insurance Company as per the Policy in question and the Insurance Company has rightly repudiated the claim of the complainant for the ground stated in the repudiation letter and hence, the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat(main), allowing the complaint of the complainant in the case No. 27/2014 dated 30.03.2016 requires to be quashed and set aside in this appeal and according to same is quashed and set aside and accordingly the appeal filed by the appellant Insurance Company deserves to be allowed in terms of the following final order.
K.Navlakha A/16/500 Page 7 of 8ORDER
1. The appeal No. 500/2016 filed by the appellant TATA AIG General Insurance Company Limited is hereby allowed.
2. The impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat(Main), in case No. 27/2014 dated 30.03.2016 is hereby quashed and set aside.
3. No order as to costs.
4. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No. 500 of 2016, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with occurred interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Forum, Surat(Main), for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 31st March 2023.
[I. D. Patel] Judicial Member.
K.Navlakha A/16/500 Page 8 of 8