State Consumer Disputes Redressal Commission
Rahul Jain Son Of Sh. Madan Lal vs M/S United India Insurance Company ... on 8 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 850 of 2008
Date of institution : 12.8.2008
Date of Decision : 8.1.2013
Rahul Jain son of Sh. Madan Lal, resident of 105-D, Sunder Nagar, Ludhiana.
....Appellant.
Versus
1. M/s United India Insurance Company Ltd., Divisional Officer IV, Unit
201000, Savitri Complex No. 1, First Floor, Dholewal, G.T. Road,
Ludhiana through its Manager Incharge.
.....Respondent
2. Smt. Minakshi Jain wife of Sh. Aman Jain daughter of Sh. Madan Lal
Jain, resident of Adjoining Punjab National Bank, Jain Bazar, Jammu.
...Proforma Respondent.
First Appeal against the order dated 22.4.2008 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. A.K. Kalsy, Advocate
For the respondent : Ex.-parte.
PIARE LAL GARG, PRESIDING MEMBER:
This is an appeal filed by the appellant-Rahul Jain(hereinafter called 'the appellant') against the order dated 22.4.2008 of the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter called the 'District Forum') vide which the complaint of the appellant was dismissed by the District Forum.
2. The complaint was filed by Madan Lal husband of Late Smt. Chanchal Jain before the District Forum but during the pendency of the complaint Sh. Madan Lal Jain also expired and Sh. Rahul Jain appellant and respondent No. 2 Smt. Minakshi Jain, son and daughter of the First Appeal No. 850 of 2008 2 complainant were substituted as LRs of the complainant. The present appeal is filed by Rahul Jain only and his sister Smt. Minakshi Jain is impleaded in the appeal as proforma respondent No. 2 by the appellant.
3. Brief facts of the complaint were that their mother and father, namely, Smt. Chanchal Jain and Madan Lal Jain (since deceased) had been regularly obtaining medi-claim policies of Rs. 1.50 lacs from respondent No. 1 since 15.7.1999. Deceased Chanchal Jain was also insured under medi-claim policy No. 201000/48/05/00799 for the period of 27.1.2006 to 26.1.2007, as such, respondent No. 1 was bound to pay hospitalization and domiciliary hospitalization as per policy, which was issued after the verification and after getting the insured medically examined on every year from the doctor, who was on the panel of respondent No. 1.
4. Smt. Chanchal Jain insured fell ill during the pendency of the policy due to chronic constipation diabetic mellitus, hyper tension and due to kidney disease and remained indoor patient in Christen Medical College and Hospital, Ludhiana w.e.f. 15.2.2006 to 23.2.2006 and was discharged in satisfactory condition. But also she had remained indoor patient for treatment for the same disease in Deepak Hospital at Sarabha Nagar, Ludhiana and she spent Rs. 44,622/- on her treatment.
5. The father of the appellants submitted the claim of Rs. 44,622/- for the reimbursement of the amount which was incurred by the father of the appellants for the treatment of their mother but the claim was illegally repudiated by respondent No. 1 vide letter Ex. C-2 dated 23.5.2006. It was also pleaded in the complaint that previous claim of treatment of deceased Chanchal Jain of Rs. 22550/- was also paid by respondent No. 1 on 10.7.2004. The complaint was filed with the prayer that respondent No. 1 may be directed to pay Rs. 44,622/- with interest @ First Appeal No. 850 of 2008 3 18% p.a. as treatment charges alongwith Rs. 50,000/- as compensation on account of deficiency in service as well as Rs. 20,000/- as litigation expenses.
6. Upon notice, respondent No. 1 appeared and filed reply by taking preliminary objections that the complaint was not maintainable, not come to the District Forum with clean hands and suppressed the material facts from the insurance company as well as from the District Forum, the claim of the claimant was thoroughly scrutinized by Paramount Health Services Pvt. Ltd. and after thorough scrutiny of the medical record of the insured Chanchal Jain, it was observed that "the patient Chanchal Jain a case of Diabetic type-II, hyper tension and chronic kidney disease was admitted in Deepak Hospital and CMC Hospital. She is a known case of diabetic for risk factor for Chronic Kidney Disease, present ailment becomes pre-existing in the present policy" and as such the claim of the claimant was rightly repudiated under exclusion Clause 4.1 of the insurance policy after applying the mind by the officials of respondent No. 1, as such, there was no deficiency in service on the part of respondent No. 1 and the complaint was liable to be dismissed. The reply on merits was also repetition of the facts taken in the preliminary objections by the answering respondent.
7. The complaint was dismissed by learned District Forum.
8. The present appeal is filed by the appellant on the grounds that the Doctor was not examined by respondent No. 1 to prove the allegation of pre-existence of the disease by the insured, the Clause 4.1 of the condition of the Policy was not applicable as per the judgment of the Hon'ble National Commission in case 'Parveen Damini Vs. Oriental Ins. Co." reported as 2007(1) CLT 213. Respondent No. 1 had also paid a claim of Rs. 22,550/- on 10.7.2004, as such, respondent No. 1 was bound First Appeal No. 850 of 2008 4 to pay the claim in dispute. The order of the District Forum is against the law and evidence on the file, as such, the order of the District Forum is liable to be set-aside.
9. The claim of the claimant was repudiated by respondent No. 1 vide letter dated 23.5.2006 Ex. C-2 on the ground, which is reproduced:-
"Patient Chanchal Jain a case of diabetes type-II, Hypertension and chronic Kidney disease was admitted in Deepak Hospital and CMC Hospital. She is a known case of diabetes for 30 years which is a risk factor for Chronic Kidney disease, present ailment becomes pre-existing in the present policy, and the claims stands repudiated under clause 4.1."
10. As per the above ground, the claim was repudiated by respondent No. 1 on the ground that the insured had concealed the fact regarding her pre-existence of disease from the insurance company at the time of taking of the policy, as such, the claim of the claimant was not payable under Exclusion Clause 4.1 of the insurance policy.
11. Respondent No. 1 had neither produced any proposal form, which was filed by respondent No. 1 at the time of issuance of the policies as alleged by the claimant that they were taking the medi-claim policy from respondent No. 1 since 15.7.1999 nor the proposal form, if any, was filled at the time of issuance of the policy for the period of 27.1.2006 to 26.1.2007. Only from the production of the proposal form, respondent No. 1 could prove that the insured had not disclosed her ailment and not disclosed the fact intentionally to take the benefit of the medi-claim.
12. Respondent No. 1 had not denied that both Madan Lal Jain and his wife Chanchal Jain had not taken the medi-claim policies from respondent No. 1 since 15.7.1999. The proposal form was the material document to prove that she had concealed the fact of her previous ailment at the time of filling of the proposal form and she had given wrong answers First Appeal No. 850 of 2008 5 regarding her health at the time of filling the proposal form to the agent or to the official of respondent No. 1, who had filled the proposal form.
13. Even respondent No. 1 had not rebutted the version of husband of the insured that they were examined by the Doctor, who was on the panel of respondent No. 1 before issuance of the insurance policies.
14. The claim of the insured was repudiated on the scrutiny of case vide report Ex. R-6 dated 29.6.2006 of Paramount Health Services Pvt. Ltd. which was tendered into evidence by respondent No. 1. But the name of the Doctor, who had given his opinion that the insured was suffering from previous ailments is lying blank in Ex. R-6 and even in the reply and affidavit of Sh. Rajiv Khanna, Divisional Manager of respondent No. 1, the name of Doctor of Paramount Health Services Pvt. Ltd., who scrutinized the claim of the insured was not disclosed. No affidavit of the said Doctor also tendered into evidence by respondent No. 1 to prove its version that the insured was suffering from the diseases which were mentioned in the repudiation letter.
15. The claim of the insured was repudiated on 6.5.2006 vide letter Ex. R-3 whereas the report of Paramount Health Services Pvt. Ltd. Ex. R-6 bears the date as 29.6.2006.
16. We have also perused a letter dated 6.5.2006 of Paramount Health Services Pvt. Ltd., Mumbai which was also not signed by anybody. The respondent No. 1 had pleaded in the reply to the complaint that the claim of the insured was repudiated by the insurance company vide letter dated 10.7.2006 but no such letter dated 10.7.2006 was tendered into evidence by respondent No. 1 to disclose the reasons which were mentioned in the said letter for the repudiation of the claim of the insured.
17. It is settled proposition of law by the Hon'ble National Commission that it is obligation upon the insurance company to prove First Appeal No. 850 of 2008 6 previous ailment positively for repudiation of the claim of the insured on the ground of previous ailment with conclusive/positive evidence. It was recently held by Hon'ble National Commission in case "United India Insurance Co. Ltd. versus Krishna Prakash Dubey", 2011 (4) CPR 114 (NC) as under:-
"The burden to prove that the respondent-complainant had any prior knowledge about his medical problem was squarely on the petitioner- Insurance Company, who, in our view, have not been able to discharge the same satisfactorily."
18. It was also not denied by respondent No. 1 that a claim of Rs. 22,550/- of the insured was also paid by respondent No. 1 for her ailment on 10.7.2004 vide cheque bearing No. 562409 of Rs. 22,550/- drawn on ICICI Bank. So it is also proved that it was very well in the knowledge of respondent No. 1 that insured Chanchal Jain was suffering from any ailment at the time of issuance of the insurance policy for the period 27.1.2006 to 26.1.2007, as such, the repudiation of claim that the insured had concealed any fact regarding her previous ailment is not correct.
19. In view of the above discussion, the order of the District Forum is against the evidence, documents and law laid down by the superior Courts, as such, the same is liable to be set-aside.
20. Accordingly, the appeal is accepted and the order under appeal is set-aside. Consequently, the complaint filed by the complainant is accepted with costs of Rs. 5,000/-.
21. Respondent No. 1 had not disputed the amount of Rs. 44,622/- which was claimed by the appellants as spent on the treatment of Smt. Chanchal Jain and the detail of the same is also given in Ex. C-1 and C-1A, as such, respondent No. 1 is directed to pay the claim amount of Rs. 44,622/- with interest @ 9% per annum from the date of repudiation of the First Appeal No. 850 of 2008 7 claim till its payment with Rs. 5000/- as costs to the appellant as well as proforma respondent No. 2 daughter of the insured Smt. Chanchal Jain and Madan Lal Jain complainant in equal share, within one month from the receipt of copy of the order.
22. The arguments in this appeal were heard on 4.1.2013 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
January 8, 2013. (Jasbir Singh Gill)
as Member