State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Sanjay Kumar & Anr. on 25 July, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.932 of 2007.
Date of Institution: 03.07.2007.
Date of Decision: 25.07.2011.
United India Insurance Company Limited, Regional Office, 136, Feroze
Gandhi Market, Ludhiana, through its duly Constituted Attorney.
.....Appellant.
Versus
1. Sanjay Kumar S/o late Sh. Ramesh Kumar, R/o House No.B-J-981,
Daulat Street, Daulat House, Opposite Police Line, Civil Lines,
Ludhiana.
2. Family Health Plan Limited, SCO 58-59, Ist Floor, Sector 34-A,
Chandigarh.
...Respondents.
First Appeal against the order dated
27.04.2007 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Pradeep Bedi, Advocate.
For the respondent no.1 : Sh. Amit Kohar, Advocate for
Sh. Sumeet Mahajan, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
United India Insurance Company Limited, appellant (In short "the appellant") has filed this appeal against the order dated 27.04.2007 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief are that Sh. Sanjay Kumar, respondent no.1/ complainant (hereinafter called as, "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter called, "the Act") against the appellant and respondent no.2, on the allegations that he purchased Hospitalization and Domiciliary Hospitalization Benefit Policy from First Appeal No.932 of 2007 2 the appellant for himself and his wife Smt. Sonia Kumar, his son Master Umang Kumar and mother Smt. Veena Gupta, for the year 2003 to 2004. Appellant issued policy bearing no.201100/48/03/00542 which was valid from 23.07.2003 to 22.07.2004 and respondent no.1 paid the premium and continued the said policy from 23.07.2004 to 22.07.2005 and paid Rs.11,853/- as premium. Respondent no.1 disclosed all the particulars regarding his health as well as health of his family members covered under the policy and no claim was lodged against the policy purchased from the appellant for the year 2003-2004.
3. Respondent no.1 suddenly got health problem and he was advised to take treatment from Max Devki Devi Heart & Vascular Institute, New Delhi, where he was admitted from 6th June, 2005 to 11th June, 2005 vide IPD No.1536. Respondent no.1 was treated for coronary angiography and complex angioplasty and got two cypher stents from the said institute and spent a sum of Rs.5,15,424/- vide bill dated 11.06.2005 and the said medical treatment was covered under the above said policy. Respondent no.1 lodged medical claim with the appellant after completing all the formalities and the amount was to be disbursed by respondent no.2. Respondent no.1 submitted all the bills and claimed the medical claim to the tune of Rs.5,15,424/- but the appellant repudiated the claim of respondent no.1 vide letter dated 19.09.2005 on flimsy grounds. The appellant failed to disburse the medical claim and respondent no.1 is entitled to interest @ 18% p.a. on the said amount. Respondent no.1 made repeated demands and requests to pay the said amount and also served a legal notice through counsel, but the appellant has not paid anything and this amounts to deficiency in service, and prayed that the appellant be directed to disburse the medical claim to the tune of Rs.5,15,424/- along with interest @ 18% p.a. and to pay damages to the tune of Rs.5.00 lacs on account of mental and physical torture.
4. In the reply filed on behalf of the appellant, preliminary objections were taken that the complaint is not maintainable and respondent First Appeal No.932 of 2007 3 no.1 has not come to the Forum with clean hands. It was further submitted that the case of respondent no.1 was got thoroughly investigated by the insurance company through their penal doctor. After carefully scrutinizing the claim papers as well as report of Dr. Kulwant Singh dated 10.08.2005, it was found that the insured was having diabetes and hypertension with positive family history of Ischemic disease on the basis of which the claim of respondent no.1 was rightly repudiated, as the same was not covered under the terms and conditions of the policy. Respondent no.1 was suffering from pre-existing disease at the time of taking the policy, but the same was not disclosed and the claim was rightly repudiated. There is no deficiency in service on the part of the insurance company and the complaint is liable to be dismissed. It was admitted that respondent no.1 was admitted in Devki Devi Heart Institute and the record of the said hospital shows that the respondent was suffering from hypertension since two years, diabetes for six months and the discharge summary states that the insured was having diabetes mellitus with positive family history of Ischemic disease. All other allegations were denied being wrong and incorrect and it was prayed that the complaint may be dismissed with costs.
5. Respondent no.2 did not contest the complaint before the District Forum and was proceeded against exparte.
6. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents.
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the history of the patient has always been held not to be a cogent and convincing evidence to repudiate the claim, unless it is coupled with medical record prior to the submission of the proposal form, and allowed the complaint, directing the appellant to give the claim amount as per rules and regulations along with interest @ 9% p.a. from the date of repudiation till payment.
First Appeal No.932 of 2007 4
8. Aggrieved by the impugned order dated 27.04.2007, the appellant-insurance company has come up in appeal.
9. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of appellant and respondent no.1
10. In the written arguments filed on behalf of the appellant insurance company, it was submitted that as per report of Dr. Kulwant Singh, it was found that respondent no.1 had diabetes mellitus for one and half years and hypertension for two years and the positive family history of Ischemic heart disease, but the same were not disclosed at the time of taking the policy and the claim was rightly repudiated by the appellant on 20.08.2005. Discharge summary of the hospital from where respondent no.1 had taken treatment, clearly reveals that respondent no.1 was suffering from pre- existing disease and after application of mind, appellant insurance company repudiated the claim and there is no deficiency in service on the part of the appellant. The order of the District Forum is wrong and illegal and the same may be set aside. Learned counsel for the appellant has relied upon certain authorities which are discussed in the later part of the judgment.
11. In the written arguments filed on behalf of respondent no.1, it was submitted that the first policy was valid from 23.07.2003 to 22.07.2004 and thereafter, policy was continued and it was valid from 23.07.2004 to 22.07.2005 and premium of Rs.11,854/- was paid and all the particulars were disclosed and nothing was concealed. No claim was made in the year 2003- 2004. Respondent no.1 remained admitted from 06.06.2005 to 11.06.2005 in Devki Devi Heart & Vascular Institute, New Delhi and was treated by Dr. Ashok Seth for coronary angiography and complex angiography and also two cipher stents were put. Rs.5,15,424/- were paid vide bill dated 11.06.2005 and the appellant insurance company is liable to pay the same. The just claim of respondent no.1 was repudiated on flimsy grounds. Neither Dr. Kulwant Singh has been cited as witness nor his affidavit was tendered and First Appeal No.932 of 2007 5 the District Forum has rightly come to the conclusion that no evidence was produced by the appellant. History of the patient is not enough to repudiate the claim unless it is coupled with medical record prior to submission of the proposal form. The District Forum's order is legal and there is no ground to interfere in the same and the appeal may be dismissed. Learned counsel for respondent no.1 has relied upon "LIC of India Vs Joginder Kaur & Anr.", 2005(1)CPC-52(NC); "National Insurance Company Limited Vs Sardar Kulbir Singh", 2010(3)CPC-488(NC) and "National Insurance Company Limited Vs P. Govindarajulu & Reddy & Anr.", 2010(1)CPC-682(NC).
12. We have considered the written submissions filed on behalf of the appellant and respondent no.1 and have carefully examined the record.
13. The appellant insurance company has relied upon the report of Dr. Kulwant Singh, to repudiate the claim of respondent no.1. Neither the report of Dr. Kulwant Singh has been proved nor any affidavit of Dr. Kulwant Singh has been brought on record and mere placing on file the report of Dr. Kulwant Singh, to prove that the deceased was suffering from pre-existing disease, is not sufficient. There is no evidence that any doctor treated respondent no.1 for the diseases mentioned by Dr.Kulwant Singh nor any medical record has been placed on the file. The Hon'ble National Commission in a very recent judgment in case National Insurance Company Limited Vs Sardar Kulbir Singh (supra) in Para-11(relevant portion) observed as follows:-
"Affidavit of the Doctor who had prepared the Discharge Summary has not been filed. It is not disclosed in the Discharge Summary as to on whose information the Doctor had recorded the fact that the respondent was suffering from Chronic Stable Angina for the last 10 years. No reference has been made to any previous medical record in the Discharge Summary to show that the respondent was suffering from Chronic Stable Angina for the last 10 years. The Discharge Summary does not disclose as to on what basis it has been stated that the respondent was suffering from Chronic Stable Angina".First Appeal No.932 of 2007 6
14. Similar law has been laid down by the Hon'ble National Commission in LIC of India Vs Joginder Kaur & Anr. (Supra).
15. In case National Insurance Company Limited Vs P. Govindarajulu & Reddy & Anr. (Supra), similar observations were made observing that the report was not supported by any affidavit and the repudiation on the basis of such report cannot be upheld.
16. Learned counsel for the appellant insurance company has also relied upon the following authorities:-
i) "Zenith Compute Ltd. Vs New India Assurance Co. Ltd." CLC-608(NC).
ii) "Sri Gayatri Modern Raw & Boiled Rice Vs Divisional Manager, New India Assurance Co. Ltd." CLC-813
iii) "Ravneet Singh Bagga Vs M/s KLM Royal Dutch Airlines", 2000(1)PLR-182.
iv) "Senior Divisional Manager & Ors. Vs Raksha Goyal", 2003(1) CLT-
75(NC).
v) "Dharam Pal Vs LIC" 2004(1) CLT-27.
vi) "Smt. Poonam Mangla Vs Prem Nath Hospital", 2003(1) CPC-199(NC).
vii) "Shakuntala Kumari Sahni Vs Life Insurance Corporation of India &
Anr.", 2004(3) CLT-8(State Commission, UT, Chandigarh).
viii) "Shanmugha Mudaliar & Anr. Vs Senior Divisional Manager, LIC of India & Anr.", 2004(3) CLT-91(Tamilnadu State Commission)
ix) "Ashok Kumar Gupta Vs Life Insurance Corporation of India through Sr. Divisional Manager", 2004(3)CLT-319(Chhatisgarh State Commission).
x) "LIC of India & Ors. Vs K. Muthammai", 2005(1) CLT-116(Tamilnadu State Commission).
xi) "Sreedevi Amma Vs LIC of India & Ors." 2005(1)CLT-210(NC).
xii) Mrs. Satya Gulati Vs New India Assurance Co. Ltd. & Anr.", 2003(1) CPC-420(State Commission, UT, Chandigarh).
xiii) United India Insurance Co. Ltd. Vs Sanjiv Kumar Vijay Kumar & Anr.", 2005(2)CLT-5 (Gujarat State Commission) The above authorities are not applicable to the facts and circumstances of the present case and particularly in view of the latest law laid down by the Hon'ble National Commission.
First Appeal No.932 of 2007 7
17. In view of the above discussion, there is no ground to interfere in the order of the District Forum and the same is legal and valid.
18. Accordingly, the appeal filed by the appellant is dismissed and the impugned order dated 27.04.2007 under appeal passed by the District Forum is affirmed and upheld. No order as to costs.
19. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
20. Remaining amount as per order of the District Forum shall be paid by the appellant to respondent no.1/complainant within two months from the receipt of copy of the order.
21. The arguments in this appeal were heard on 13.07.2011 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member July 25, 2011.
(Gurmeet S)