State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Manjit Singh Chawla on 19 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.1350 of 2017
In/and
First Appeal No.469 of 2017
Date of institution : 16.06.2017
Date of decision : 19.07.2017
Branch Manager, Bajaj Allianz General Insurance Co. Ltd., 2nd
Floor, Satnam Complex, G.T. Road, Jalandhar City, through its
Authorized Signatory, Ms. Sarpreet Kaur Ahluwalia, Assistant
Manager, Legal, SCO 156-159, 2nd Floor, Sector 9-C, Chandigarh.
....Appellant/Opposite Party
Versus
Sh. Manjit Singh Chawla S/o Sh. Amrik Singh, R/o House
No.2222, Gali Lovely Sweet Wali, Rayya, Tehsil Baba Bakala,
District Amritsar.
....Respondent/Complainant
First Appeal against the order dated
11.04.2017 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Present:-
For the appellant : Sh. Sachin Ohri, Advocate
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
M.A. No.1350 of 2017 (delay)
For the reasons recorded in the application, the delay of 30 days in filing the appeal is condoned.
Main Appeal
The instant appeal has been filed by the
appellant/opposite party against the order dated 11.04.2017 First Appeal No.469 of 2017 2 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, "the District Forum"), whereby the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was partly allowed and the opposite parties were directed to pay the insurance claim of ₹53,001/-, along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 16.10.2014 till realization; ₹5,000/-, as compensation; and ₹2,000/-, as litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant obtained "Overseas Travel Insurance Policy" bearing No.OG-15-1202-9910-00001220 for the period 29.07.2014 to 26.10.2014 from the opposite party under plan 'Travelage', against payment of premium. He went to Washington, through flight from Delhi to Washington, on 29.07.2014, where he became sick/suffered headache and uncontrolled hypertension. He took treatment from the doctor on various dates and paid $73.92 on 07.08.2014; $82.93 on 08.09.2014; $10 on 21.09.2014; $587 on 20.09.2014; $86 on 21.09.2014; and $25 on 26.09.2014. Thus, a total sum of $854.86 was paid to the doctor in Washington; which is equivalent to ₹53,001.32P in Indian currency. During the said period, the complainant remained admitted in the hospital for one First Appeal No.469 of 2017 3 day and was discharged in the evening. On arrival back to India, the complainant lodged the claim to the tune of ₹53,001.32P with the opposite party, who repudiated the same, vide letter dated 16.10.2014 illegally and malafidely, on flimsy grounds that as per Attending Physician's Statement, he was suffering from hypertension since 2009, which was a pre-existing disease. It was averred that hypertension is not a disease and it can occur any time. The complainant went to Washington, only to take treatment for his ill-health/headache. The act and conduct of the opposite party amounted to deficiency in service, which caused mental agony and harassment to the complainant. Accordingly, the complainant approached the District Forum, seeking directions to the opposite party to pay the insurance claim of $854.84 i.e. ₹53,001.32P, along with interest at the rate of 12% per annum and to pay compensation of ₹10,000/- and litigation expenses of ₹5,000/-
Defence of the Opposite Parties
4. Upon notice, the opposite party appeared before the District Forum and filed reply to the complaint, raising preliminary objections that the complaint is not maintainable, as the complainant suffered the material facts. It is clear from the Attending Physician's Statement of patient First-Manassas, 9715 Liberia Avenue, Manassa VA 20110 that the complainant was having a past history of hypertension and cardiac ailment since 2009. This fact was not disclosed by the complainant in the First Appeal No.469 of 2017 4 proposal form at the time of taking the policy. Thus, there was non- disclosure of material information by the complainant and as per exclusion clause 2.4 and 2.4.12 of the insurance policy, his claim was rightly repudiated, after due application of mind. There was no deficiency in service on the part of the opposite party. On merits, taking of the insurance policy, lodging of claim by the complainant and its repudiation were admitted. Other allegations of the complainant were denied and it was prayed that the complaint be dismissed.
Finding of the District Forum
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly allowed the complaint, vide impugned order. Hence, this appeal.
Contentions of the Parties
6. I have heard learned counsel for the appellant/opposite party and have carefully gone through the record of the appeal.
7. Learned counsel for the appellant/opposite party vehemently contended that the complainant was suffering from hypertension since the year 2009, which was a pre-existing disease at the time of taking the policy by him. However, the complainant did not disclose the same in the proposal form, while taking the policy, in question. The claim of the complainant was rightly repudiated, in view of the exclusion clauses, vide letter First Appeal No.469 of 2017 5 dated 16.10.2014, Ex.O-5. Since the complainant suppressed material facts with regard to his health deliberately, so he is not entitled to any relief. The District Forum wrongly passed the impugned order, without properly appreciating the evidence brought on record, and the same is liable to be set aside. Consideration of Contentions
8. I have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
9. Admittedly, the complainant obtained, the policy, in question from the opposite party, which was valid from 29.07.2014 to 26.10.2014. As per version of the complainant, he went to Washington on 29.07.2014, where he became sick/headache and suffered uncontrolled hypertension and he took treatment from the doctors on various dates and spent $854.86 i.e. ₹53,0001.32P. The claim lodged by him with the opposite party was repudiated vide letter dated 16.10.2014 Ex.O-5, on the ground that the complainant was suffering from hypertension since 2009, which he did not disclose at the time of taking the policy.
10. The only question to be decided in this case, is whether the opposite party was justified in repudiating the claim of the complainant on the ground that he suffered from hypertension since 2009 and that the complainant suppressed this material fact while taking the policy, in question?
First Appeal No.469 of 2017 6
11. The point is no more res-integra. In the case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon'ble National Commission that usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and only after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant. If, in the present case, the complainant was suffering from hypertension, then at the time of taking the policy, the panelled doctors of the Insurance Company must have detected the same and the opposite party could have denied the policy to him then and there. Moreover, merely on the basis of Statement of Attending Physician, Ex.O-1, without any supporting medical record, it cannot be said that the complainant was suffering from hypertension earlier to the taking the policy. Furthermore, no previous medical record of the complainant has been produced by the opposite party to show that he was suffering from the hypertension since the year 2009.
12. Hon'ble Supreme Court in case P. Vankat Naidu Vs. Life Insurance Corporation of India & Anr. IV (2011) CPJ 6 (SC) 6 held in Paras No.6 and 7 as follows:
6. We have heard learned counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the First Appeal No.469 of 2017 7 deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.
7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness."
13. Even otherwise, hypertension is a lifestyle disease and it cannot be made the basis of repudiation of the claim of the consumer. The Hon'ble National Commission in Satish Chander Madan Vs. Bajaj Allianz General Insurance Co. Ltd. I (2016) CPJ 613 (NC) held that hypertension is common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. In paras No.8 to 10 it was held as follows:
8. Learned Counsel for the respondent has contended that as per the terms and conditions of the insurance First Appeal No.469 of 2017 8 contract, the Insurance Company was not required to reimburse the petitioner complainant for expenses incurred by him on pre-existing disease. Learned Counsel has argued that from the medical report of the petitioner, it is clear that the petitioner was suffering from hypertension prior to the purchase of the insurance policy and since hypertension has a direct nexus with heart ailment, the respondent Insurance Company was justified in repudiating the insurance claim in view of the exclusion clause which excluded the expenses incurred on pre-existing disease.
9. We do not find merit in the above contention. On perusal of the copy of the medical report of the petitioner dated 4.6.2010 issued by Dr. David P. Lipkin as also the letter of the doctor dated 7.6.2010 addressed to Dr. M. Fertleman of Wellington Hospital would show that as per the observations of Dr. David P. Lipkin, the petitioner had a previous history of hypertension and he was on BP medicine Telmisartan. The above referred reports do not mention that the petitioner disclosed any previous history of heart problem. Therefore, the only fact established by the above reports is that the petitioner prior to obtaining insurance policy was having history of hypertension.
This, however, does not lead to conclusion that petitioner was also having previous history of heart problem. Therefore, the insurance claim submitted by the complainant for treatment of his heart problem cannot be termed as a claim in respect of a pre existing disease. Thus, repudiation of insurance claim by the respondent opposite party is not justified.
10. Learned Counsel for the respondent has contended that it is established on record that the petitioner was First Appeal No.469 of 2017 9 having a previous history of hypertension and since hypertension can lead to heart problem, the respondent was justified in repudiating the claim on the ground that the heart problem suffered by the petitioner was caused by pre existing hypertension. There is no merit in this contention. Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. Therefore, the argument advanced by respondent is far fetched and is liable to be rejected."
14. Further in Civil Writ Petition No.20040 of 2008 decided on 17.12.2008 (Max New York Life Ins. Co. Ltd. Vs Insurance Ombudsman, Chandigarh & Anr.), our own High Court held that hypertension is a disease, which could escape attention of a person and is required to be diagnosed by experts.
15. Further in case "Veena Sharma Vs. Life Insurance Corporation of India" 1999 (1) R.C.R. (Civil) 646, Hon'ble Punjab & Haryana High Court held that mere non-mentioning of insured being a patient of hypertension did not amount to suppression of material facts, so as to entitle the respondent to repudiate the claim.
16. Further, the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case Life Insurance Corporation of India Vs. Sudha Jain 2007(2) CLT 423 has drawn conclusions in para 9 of the order and the relevant clause is 9(iii), which is reproduced as under:-
First Appeal No.469 of 2017 10
"9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre- existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease."
17. In case New India Assurance Company Limited Versus Smt. Usha Yadav & others 2008(3) R.C.R. (Civil) 111, the Hon'ble Punjab & Haryana High Court expressed its anguish and observed as follows:-
"It seems that the Insurance Companies are only interested in earning the premiums, which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine claims. The insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus, pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy."
20. It is also relevant to mention here that Section 19 of the General Insurance Business Nationalization Act, 1972 states that it First Appeal No.469 of 2017 11 shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre- existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non- arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.
21. The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear First Appeal No.469 of 2017 12 terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non- disclosure may not be there. The innocent and negligent misrepresentations are to be ignored.
18. In view of my above discussion as well as the law laid down in the above noted authorities, it is held that the claim of the complainant was wrongly and illegally repudiated by the opposite party on the above referred ground. The order passed by the District Forum is legal and valid and there is no ground to interfere with the same.
19. Accordingly, the appeal is dismissed in limine and the impugned order is upheld.
20. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The respondent/complainant First Appeal No.469 of 2017 13 may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 19, 2017.
(Gurmeet S)