State Consumer Disputes Redressal Commission
Oriental Insurance Co Ltd. vs Divyeshkumar M Harpal on 27 August, 2021
Details DD MM YY
Date of disposal 27 08 2021
Date of filing 23 12 2013
Duration 04 08 07
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 04
Appeal No. 1010 of 2014
Oriental Insurance Co. Ltd.
Regional Office: 3rd Floor,
Navjivan Trust Building,
B/h Gujarat Vidhyapith, Ashram road,
Ahmedabad -380014. ... Appellant
V/s.
Divyeshkumar Maganlal Harpal,
C/o. Swaraj Polyplast Pvt. Ltd.
Besides Bhutwad Bus Stop,
Behind Triveni Hotel, Jetpur Road,
Dhoraji, Dist. Rajkot. ...Respondent.
BEFORE: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Mr. D.B. Mehta, L.A. for the appellant.
Mr. R.U. Nahar, L.A. for the respondent.
Order by Dr. J.G. Mecwan, Presiding Member.
JUDGMENT
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the learned District Consumer Disputes Redressal Commission, Rajkot (Main) on 22.10.2013 in Complaint No. 331 of 2013, the original opponent has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 before this Commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature. Page 1 of 12
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2. The facts given rise to the present appeal in a nutshell are as under:
It is the case of the complainant that complainant was having mediclaim policy known as "Happy Family Floater Mediclaim Insurance Policy" whereby the risk of his wife Smt. Bhavnaben, father Mr. Maganlal, mother Smt. Jayshriben and daughter Fanny were covered to the extent of Rs. 7,00,000/-. Initially the period of the policy was from 03.03.2009 to 02.03.2010 thereafter it was renewed from 03.03.2010 to 02.03.2011 and after that the policy was further renewed for the period from 03.03.2011 to 02.03.2012 and again the policy was renewed from 03.03.2012 to 02.03.2013. It is further the case of the complainant that on dated 13.02.2013 father of the complainant Mr. Maganlal has suffered chest pain and therefore he was admitted in Wockhardt Hospital, Rajkot and he was discharged on 14.02.2013 and he was referred to SAL Hospital, Ahmedabad. Thereafter he was admitted in SAL hospital on 15.02.2013 and was operated upon there and on 07.03.2013 Mr. Maganlal, the father of the complainant has expired. It is further the case of the complainant that since from the date Mr. Maganlal was admitted in the Wockhardt Hospital, Rajkot and till he died at SAL hospital at Ahmedabad, he has incurred expenses of Rs. 5,25,693/-
accordingly. It is further the case of the complainant that appellant Insurance Company has repudiated the claim by letter dated 26.06.2013 on the ground that the Insurance Company is not liable Page 2 of 12 R.I. DESAI A/14/1010 to reimburse the expenses as per Exclusion Clause No. 4.1 and 5.9 mentioned in the terms and conditions of the Mediclaim Policy. In these circumstances the opponent Insurance Company has wrongly and illegally repudiated the claim of the complainant and has thereby committed deficiency in service and therefore, the complainant has filed Consumer Complaint before the learned District Commission, Rajkot (Main).
3. Being dissatisfied with the deficiency in service by the opponent Insurance Company complainant has filed Consumer Complaint before the learned District Commission Rajkot (Main) and prayed for monetary compensation from the respondents amounting Rs. 5,25,693/- with 12% interest and Rs. 25,000/- towards mental torture along with necessary costs for expenditure of the complaint.
4. After hearing learned advocates for both the parties and after considering the documents and evidences, the learned District Commission allowed the complaint of the complainant.
5. Being aggrieved by the impugned order of the learned District Commission, Rajkot (Main) the original opponent has filed the present appeal against the original complainant before this Commission on the ground stated in the appeal memo.
6. Today on date 6th August, 2021 this appeal is taken on board for final hearing. On going through the record of this case, it has been found that the admission process of this appeal was not made. As Page 3 of 12 R.I. DESAI A/14/1010 the appeal is of the year 2014; it would be just and proper to complete an admission process to decide the matter.
7. Heard learned Advocate Mr. D.B. Mehta for the appellant and ld. Advocate Mr. R.U. Nahar for the respondent at length. Perused the record of the case, order of the learned District Commission and judgments submitted by the respondent.
8. First of all learned Advocate for the appellant Mr. D.B. Mehta has argued out that the learned District Commission has failed to appreciate the submissions of the appellant that the complainant himself has annexed discharge certificate of Worckhardt hospital at the evidence list wherein it is categorically mentioned by Dr. Nilesh Mankadia in the column of past history that "History of hypertension and diabetes Mellitus". It is further submitted by learned Advocate Mr. Mehta that the learned District Commission has failed to appreciate the submission of the appellant that the complainant himself has annexed death summary certificate issued by SAL hospital at the list of evidence wherein it is categorically mentioned that "A60 years old male known case of Diabetes Mellitus with...". It is further argued out by the learned Advocate Mr. Mehta that the learned District Commission has also erred in appreciating the submissions of the appellant that the appellant Insurance Company has repudiated the claim submitted by the complainant on the ground that "the father of the complainant was suffering Page 4 of 12 R.I. DESAI A/14/1010 from hypertension and diabetes Mellitus since last 18 years" and as a result of which he was suffering from the illness and as per terms and conditions of the policy the complainant is not entitled to get the insurance claim.
9. Learned Advocate Mr. Mehta has concluded that the order passed by the learned District Commission is erroneous, illegal, improper, perverse and unjustified and therefore the judgment and order passed by the learned District Commission should be quashed and set aside by allowing this appeal.
10. Upon service of the notice learned Advocate Mr. R.U. Nahar has appeared on behalf of the respondent and vehemently argued out that the certificate issued by Dr. Dumra is only on the basis of the case papers and it is an admitted fact that his degree has not been shown anywhere in the said certificate. Learned Advocate Mr. Nahar further argued out that in the certificate of treating doctor of SAL hospital at page no. 52 in which column 11 it has been specifically mentioned that it was a "Fresh illness". It is further submitted by learned Advocate Mr. Nahar that diabetes and hypertension is life style disease and there is no nexus with the cause of death of complainant's father.
11. Learned Advocate Mr. Nahar for the respondent concluded that the order passed by the learned District Commission is just and proper and it does not require any interference by this Commission and Page 5 of 12 R.I. DESAI A/14/1010 therefore the present appeal should be dismissed. In support of his arguments learned Advocate Mr. Nahar has submitted following judgments:
(I) Civil Appeal no. 8245 of 2015 (SC) :- Since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.
(II) Appeal No. 2963 of 2012 (State Commission, Gujarat) :-
Hypertension and diabetes is a normal disease and thereby it may not be a cause to repudiate the claim of the complainant.
12. In the present case according to the appellant Insurance Company when father of the complainant was suffering from diabetes Mellitus and hypertension since last 18 years i.e. before purchasing the insurance policy then the said disease is considered as a pre existing disease. Learned Advocate for the respondent Mr. Nahar has drawn my attention to the certificate of SAL Hospital, Ahmedabad and Wockhardt Hospital Rajkot submitted at page no. 51 and 52 which is reproduced below:
SAL Hospital Ahmedabad As per your opinion, the diseases related to this statement is a A) Fresh illness/Diseases/ailment? Fresh Illness B) Probable period of development of 13.02.2013 this illness admitted C) Pre history of existence of the Wockhardt Hospital diseases or any symptoms of any Rajkot compliant Page 6 of 12 R.I. DESAI A/14/1010 Wockhardt Hospital Rajkot As per your opinion, the diseases related to this statement is a A) Fresh illness/Diseases/ailment? Fresh B) Probable period of development of 3-4 days this illness C) Pre history of existence of the Diabetes diseases or any symptoms of any compliant The above statement of treating doctor of SAL hospital and Wockhardt Hospital shows that illness of the complainant's father is fresh illness and the probable period of development of this illness started from 3-4 days.
13. Hon'ble National Commission in I (2016) CPJ 456 (NC) in the case of Life Insurance Corporation of India & Anr. Vs. Chawali Devi has observed as under :
"6. As far suppression of material facts regarding existing disease and treatment is concerned, learned Counsel for the petitioner has drawn my attention towards history of deceased noted by doctor in which it was mentioned that deceased was having breathlessness, cough c expectoration, etc. No doubt, this fact has been mentioned as patient's history, but petitioner has failed to place any document on record regarding treatment of aforesaid breathlessness, cough c expectoration, etc. and has not filed any affidavit of concerned doctor who recorded history to prove that this history was given by deceased himself. In such circumstances, only on the basis of recorded history of deceased, it cannot be held that deceased was suffering from breathlessness, cough c expectoration, etc. since last 10 years and had taken any treatment. Learned Counsel for the respondent has denied any ailment and also placed reliance on judgment of this Commission in III (2014) CPJ 552 (NC), SBI Life Insurance Co. Ltd. v. Harvinder Kaur & Anr., in which it was observed as under:Page 7 of 12
R.I. DESAI A/14/1010 "Concerned doctor who allegedly treated insured and recorded that patient was admitted with history of pulmonary hypertension for last two years was not examined by petitioner to prove photocopy of discharge card relied upon by petitioner nor affidavit of doctor has been filed-Fora below were right in declining to rely upon the photocopy of discharge card produced by petitioner to establish that petitioner while obtaining insurance policy concealed the fact that he was suffering from pulmonary hypertension-Repudiation not justified."
Looking to the above observation of the Hon'ble National Commission, it is crystal clear that the present illness is not pre existing.
14. On the other hand opponent Insurance Company has submitted the certificate of Dr. Dumra stating that his present disease is complication of DM, HBP but it is an averment of the complainant that in the certificate of Dr. Dumra neither have any address of his clinic nor any degree of the doctor has been mentioned and therefore the certificate should not be considered as evidence in this case. Furthermore it is also an averment of the complainant that the affidavit of Dr. Dumra is on record at page no. 43 in this Appeal but it was not submitted before the learned District Commission.
15. I have gone through the order of the learned District Commission in which learned District Commission has observed as under:
"તેથી વિરુધ્ધ માર્ક ૧૭/૧ થી ડો. ડુમરાન ુ સર્ટીફીર્ેર્ટ છે . તે સર્ટીફીર્ેર્ટમાાં ર્ોઈ તારીખ દર્ાક િેલ નથી અને એિો ઉલ્લેખ ર્રે લ છે ર્ે, દદી સાલ હોસ્પિર્ટલમા તા.૧૫-૨-૨૦૧૩ના રોજ દાખલ થયેલ,અને તા.૭-૩- Page 8 of 12
R.I. DESAI A/14/1010 ૨૦૧૩ના રોજ તેન ુ અિસાન થયેલ, તેમને'' CORONARY ARTERY DOUBLE VESSEL DISEASE" હતો અને ૧૮ િર્કથી HYPERTENSION અને DIABETES MELLITUS ના દદી હતા અને આ બધી બીમારીને લીધે તેમને CORONARY ARTERY DISEASE થયેલ છે . નીચે ડો.એસ.જે.ડુમરા એવુ લખેલ છે િણ તેના ઉિર ર્ોઈ સીર્ર્ો નથી. આ ડો.ડુમરાની ર્ૈક્ષિક્ષણર્ લાયર્ાત શુ છે ? ડો.ડુમરાને સાિી તરીર્ે તિાસિા માર્ટે સામાિાળા તરફે આંર્-૨૦ની અરજી આિિામાાં આિેલી,િરાં ત ુ ડો. ડુમરાની એફીડેિીર્ટ મારૂતી કુ રીયર મારફતે મોર્લિામાાં આિેલ છે ,િરાં ત ુ ડો.ડુમરાની એફીડેિીર્ટ આમ છતા િણ રજુ થયેલ નથી.સાિી તરીર્ે સામાિાળા તેને તિાસી ર્ર્યા નથી"
Looking to the above observation it is crystal clear that the ld. District Commission has not considered the evidence of Dr. Dumra. In the Appeal stage the affidavit of Dr. Dumra is submitted but this affidavit was not submitted before the ld. District Commission and very first time it is submitted before this State Commission. As per the letter of Dr. Dumra which is on record at page no. 42 an affidavit was sent to opponent Insurance Company on dated 14.10.2013 and that was received on 28.10.2013 by opponent Insurance Company and therefore it is crystal clear that affidavit of Dr. Dumra was not produced before the ld. District Commission as ld. District Commission has passed order on 22.10.2013 and therefore the ld. District Commission has rightly decided that the said certificate has not any evidence value in this case. Therefore in the opinion of this Commission when complainant have not got the chance to cross examine Dr. Dumra then it cannot be considered as a valid evidence in this matter.
16. It is an averment of the appellant Insurance Company that in self declaration form and proposal from, complainant has not mentioned about his disease and therefore as per Section 5.9 of the terms and conditions of the policy complainant is not entitled to get claim amount. Page 9 of 12
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17. I have gone through the self declaration form and proposal form submitted in this case which is on record at page no. 48 to 51 wherein complainant has signed in both the forms in Gujarati language and there is no endorsement of Insurance agent that the content of the declaration form/proposal form were read over and explained to the complainant in Gujarati language and therefore it is believable that the complainant was not aware about the information which was filled in the forms. Hon'ble National Commission in I (2018) CPJ 208 (NC) in Bajaj Allianz life Ins. Co. Ltd vs. D. Ayyapu Reddy has observed as under:
"Learned Counsel for the complainant submitted that the insured was not educated person. The proposal form was in English, it was filled by the agent of OP without disclosing the relevant question and obtained his signatures of the insured in the proposal form. Thus, the burden lies on the OP to prove that the questions of proposal form were informed to the insured and the same were explained to him in Telugu"
18. Considering the above observation of the Hon'ble Apex Court in this case also the complainant has singed both the forms in Gujarati language and also there is no any endorsement of the employee or staff member of the appellant Insurance Company which fails to prove that the terms and conditions of the proposal forms or declaration form have been explained to the complainant and Page 10 of 12 R.I. DESAI A/14/1010 therefore it cannot be said that the complainant was aware about what has written in the forms and hence it cannot be said that the complainant has suppressed his disease at the time of filling the said forms.
19. Furthermore, the Hon'ble Apex Court in various judgments has decided that the diabetes Mellitus and hypertension is a life style disease and on the other hand in the present case also the opponent Insurance Company has not produced any evidence which shows that the complainant was having diabetes Mellitus and hypertension for last 18 years. Therefore when there is no nexus between the present illness of DLA and diabetes, hypertension and hence in the opinion of this Commission opponent Insurance Company has shown deficiency in service by repudiating the claim of the complainant.
20. In view of the above discussion in the opinion of this Commission the learned District Commission has discussed all points in detail and hence without repeating all these, this Commission is of the considered opinion that the order passed by the learned District Commission is proper and justified and therefore it does not require any interference by this Commission. Hence the following final order is passed.
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ORDER
1. The present appeal is hereby ordered to be dismissed.
2. The judgment and order passed in C.C. No. 331/2013 dated 22.10.2013 by the learned District Commission, Rajkot (Main) is hereby confirmed.
3. No order as to cost.
4. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No. 1010/14, and C.M.A. No. 02/2014, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued 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 Commission Rajkot (Main) for 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 27th August, 2021.
[Dr. J.G. Mecwan] Presiding Member.
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