State Consumer Disputes Redressal Commission
The New India Ass Co Ltd vs Maganbhai Makanjibhai Patel on 21 December, 2020
Exh.___
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 1317 of 2014
[Virtual Hearing]
Court No. 1
1. The New India Assurance Co. Ltd.
Modi Tower, First Floor, Limda Chawk,
Bardoli,
Surat.
2. Divisional Manager,
The New India Assurance Co. Ltd.
Address as above. ...Appellants
Vs
1. Maganbhai Makanjibhai Patel,
Hanuman Faliyu, Sarbhon, Bardoli,
Surat.
2. M/s. Bhaichand Amolak Ins. Services Pvt.Ltd.
Golden Point Building, Beside Telephone Bhavan,
Kamela Darwaja, Ring Road,
Surat.
3. Bharuch Manager,
M/s. Bhaichand Amolak Ins. Services Pvt.Ltd.
Golden Point Building, Beside Telephone Bhavan,
Kamela Darwaja, Ring Road,
Surat. ...Respondents
Coram: Justice V. P. Patel, President
Dr. J. G. Mecwan, Member
APPEARANCE: Mr. P. H. Thakkar, ld. advocate for the Appellants.
Mr. V. M. Pancholi, ld. advocate for the respondents.
ORDER:By Justice V. P. Patel, President
1. Appellants have filed this appeal under section 15 of the Consumer Protection Act, 1986 (herein referred to as 'the Act'), being aggrieved and dissatisfied with the judgment and order dated 30.10.2013 passed by the Consumer Disputes Redressal 1 Commission(herein after referred as District Commission), Surat (Addl.) in Consumer case no. 492 of 2011, old case no. 244 of 2008.
2. Heard ld. Advocate Mr. P. H. Thakkar, for the appellants and Ld. Advocate Mr. V. M. Pancholi, for the respondents. Perused the record of the case and judgment and order passed by the District Commission.
2.1. The original complainant is the respondent no. 1, original opponent no. 1 and 2 are the appellant no. 1 and 2 and original opponent no. 3 and 4 are the respondent no. 2 and 3 in this appeal. (Herein after the appellants and respondents will be referred as per their original status)
3. Case of the complainant: The complainant has filed the consumer complaint before the District Commission Surat (Addl.) against the present appellants. It is stated in the application that complainant is having mediclaim insurance policy since 2000 for himself, his wife and his son. Then after it was renewed from time to time. As per the general insurance regulation the insurance company has provided 5% community bonus to the complainant. He has taken the insurance policy as narrated in the Table A of the judgment para 1 of the District Consumer Commission. It is further stated that on 24.6.07 the complainant become ill. Therefore, he has visited Dr. Jagdish Chaudhary. Dr. Jagdish Chaudhary has diagnosis the disease as liver cirrhosis. Thereafter he was admitted as indoor patient on 25.6.07 and treated as indoor patient in the Khushbu Hospital. He taken treatment for 4 days thereafter he was discharged on 29.6.07. He has to spent Rs. 4,112/- for the hospitalization, medical and other treatment. he has filled the claim form and submitted to the opponent on 17.7.07. thereafter, he has again consulted Dr. Bimal Gandhi on 29.6.07. He has further consulted Dr. Manish for that purpose complainant has spent Rs. 13,289/-. The complainant has submitted claim for that amount on 17.7.07. Then after Dr. Bimal Gandhi referred him to the Shiv Jyoti Hospital of Dr. Manish Patel where, the complainant was treated as indoor patient. He has to spent Rs. 45,675.61/- for the hospitalization, medical drugs and other treatment. he has submitted the claim form 17.7.07.... Again he has to go for treatment as recovery was not up to the 2 satisfaction. He has consulted Dr. Kapil P. Thakkar and he was admitted in the K. P. Sanghvi Hospital as a indoor patient. He was discharged on 11.7.07. He has spent Rs. 5,236/- for the said treatment. claim form for four claim was submitted on 17.7.07.
3.1 The insurance company opponent no. 1 has repudiated the claim vide letter dated 8.9.07 showing the clause 4.1 and 4.8 of the policy conditions. Hence the claim was filed for Rs. 68,312/-.
4. Defense of the opponents: The District Commission had issued the notice to the opponents and opponents are appeared through ld. advocate and filed a detail written statement. The policy is admitted. It is further stated that considering the medical paper the complainant was habituated with alcohol since 10-12 years. Therefore, the claim was rejected as per the clause 4.1 and 4.8 that the claimant has not shown the said illness in the insurance claim form and misrepresented and misguide the insurance company. As per the treatment given by Dr. Bimal Gandhi, annexure A shows that he was suffering from Diabetes therefore, claim was rejected.
5. Order under challenge: The District Commission has after considering the evidence on record partly allowed the said complaint and awarded Rs. 68,312/- (Rupees Six Thousand Three Hundred and Twelve Only) with 9% interest with effect from date of filing of the complaint. The District Consumer Commission has also awarded Rs. 2,000/- for mental agony and Rs. 1,000/- as cost to the complainant.
6. Argument of the appellants:
6.1 Learned advocate for the appellant has argued that the District Commission has failed to appreciate the OPD papers submitted by the complainant to the TPA shows that he was having history of alcoholic consumption since 10-12 years and present ailment is directly relation to consumption of alcohol.
The learned District Commission has failed to appreciate that the claim was repudiated after proper application of mind and thorough investigation. That the District Commission has not considered that the claim of the complainant falls under the exclusion clause no. 4.1 and 4.8 of the mediclaim policy.
3It is further argued that the District Commission ought to have appreciate that the complainant has never raised any objection with regard to the non receipt of the terms and conditions with the insurance policy since he has taking the policy since long.
6.2 Learned advocate for the appellant has further submitted that the order passed by the District Commission is patently illegal, in violation of the principles of natural justice, contrary to the documentary evidence on record, against the settled principles, de hors the provision of the Act. That the impugned judgment and order are illegal and unlawful hence liable to be quashed and set aside. He has requested to allow the appeal and quash and set aside the judgment and order passed by the District Commission with cost.
6.3 ld. advocate for the appellant has relied upon the following judgments.
(A) 1979 (0) ALJEL-SC 26054: Shankar Chakravarti vs. Britannia Biscuit Co. Ltd.
(B) II(2012) CPJ 672 (NC) LIC of India and Ors. vs. Anupama and Ors.
7. Arguments of the respondent:
7.1 Learned advocate for the respondent has argued that the judgment and order passed by the ld. District Commission are legal, proper and correct in eye of law. That the Id. District Commission has appreciated the evidence on record in proper perspective and came to the right and just conclusion.
7.2 It is further argued that the terms and conditions of the policy was not disclosed to the complainant and therefore, clause no. 4.1 and 4.8 are not applicable in the present case. That the insurance company has wrongly repudiated the claim of the complainant that the alcohol consumption has no nexus with the treatment taken by the complainant. That the documentary evidence is produced by the complainant before the District Commission.
7.3 It is further submitted that there is no requirement of interference in the judgment and order passed by the ld. District Commission. Hence, requested to dismiss the appeal with cost.4
Merits of the case:
8. The opponent insurance company has repudiated the claim vide letter dated 8.9.07 (page 26 and page 57) relied upon the following conditions.
"(5) Your present ailment is directly related to your consumption of alcohol.
(6) Hence, as per clause 4.1 and 4.8 of mediclaim policy your claim is not payable.
(7) Clause 4.1 states that "All disease/injuries which are pre-
existing when the cover incepts for the first time."
(8) Clause 4.8 states that "Couvolseenee, general, run-down condition or rest cure, congenital, external disease or defects or anomalies, sterility, General disease, intentional self-injury and use of intoxication drugs/alcohol."
8.1 It is the case of the insurance company that the claimant was aware about the terms and conditions of the policy. Ld. advocate for the insurance company has produced policy schedule with terms and conditions at exh. 31 which contain 4 pages (page 45-48) and prospects mediclaim policy (page 49-54). On perusing page no. 2 of the policy (at page 46 of the record) it is stated that "this policy is subject to mediclaim policy (2007) clauses as attached." At page 57 exclusion clause are mentioned.
8.2 The appellant has also produced five documents at exhibit 4 on 12.12.14. from page 1-26. On perusing the page 16-23 these are the policies of the different year described as under.
Sr. Policy No. Policy Period Page
No. no.
1. 230802/48/00/20/00000144 03/07/2000 16
to
02/07/2001
2. 230802/48/01/20/00000168 04/07/2001 17
to
03/07/2002
3. 230802/48/02/20/00000139 04/07/2002 18
to
03/07/2003
4. 230802/48/03/20/00000148 04/07/2003 19
to
5
03/07/2004
5. 230802/48/04/20/00000073 04/07/2004 20
to
03/07/2005
6. 230802/48/05/20/70050150 04/07/2005 21
to
03/07/2006
7. 230802/48/06/20/70000188 04/07/2006 22
to
03/07/2007
8. 230802/34/07/20/00000124 04/07/2007 23
to
03/07/2008
8.3 On scrutiny in all the documents the page number are mentioned as page 1 of the 1. It means the policy was issued to the claimant is having only one page. Policy at serial no. 7 and 8 of the above at page no. 22 and 23 are the policies which covers the disputed claim. Such policies does not reflect that the terms and conditions were supplied to the insured. It was submitted during the argument that the copy of the policy produced at page 45-54 was not produced before the District Consumer Commission. These policies are produced for the first time before this Commission.
8.4 Ld. Advocate for the complainant has cited following judgments.
I(2000) CPJ 1( SC)/2000(2) SCC 734/AIR 2000 SC 1014:
M/s. Modern Insulators Ltd. Vs Oriental Ins. Co. Ltd. Hon'ble Supreme Court held in para 6 the aforesaid judgment that "Para-6. The National Commission asked the parties to file affidavits to prove That the exclusion clause was duly communicated to the appellant. We have been taken through the affidavits filed and we find in the affidavit of the appellant the letter received by the appellant from the Branch Manager of the respondent was referred to wherein it was confirmed that appellant was supplied only with a cover note and the schedule of the policy. So the other terms and conditions containing the above exclusion clause were not communicated. In the reply affidavit filed by the respondent it was not specifically mentioned that the exclusion clause was also communicated to the appellant."6
"Para 8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the Insurance Company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally."
"Para 9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot. claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law."
This judgment is applicable to the present case as the discussed herein and above that the terms and conditions was not intimated to the claimant.
8.5 Civil Appeal No. 3912 of 2019(SLP NO. 25468/2016):
Bharat Watch Company Through its Partner vs. National Ins. Co. Ltd. Hon'ble Supreme court held in the above cited judgment that "We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding."
8.6 The policy of different year produced at page 16 to 23, it can be safely concluded that the policy which contain only one page nowhere stated in this document that the terms and conditions are attached therewith. It appears that the argument advance by the ld. advocate for the appellant that the terms and conditions was never supplied with the policy schedule is believable.7
9. The insurance company has produced discharge card at page 24 & 25 and the same is also produced at exhibit 32 (Page no. 55 & 56). For this discharge card the insurance company wants to establish that the claimant was having habitual with consumption of alcohol but these are the Xerox copy of the discharge card it is required to be prove according to law. That the insurance company has also not filed an affidavit of any person with regard to the said discharge card. The insurance company has not examined any person to prove this document therefore, the contents of the discharge card cannot be taken into consideration.
Reply of the judgment cited by the Ld. Advocate for the appellant.
10. 1979 (0) ALJEL-SC 26054: Shankar Chakravarti vs. Britannia Biscuit Co. Ltd.:
"Para 31. Obligation to lead evidence or establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read strictly, but it is equally true that the pleadings must be (1) (1970) Labour & Industrial Cases 350. such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. v. Industrial Tribunal, (l) commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary."
10.1 This judgment is not helpful to the present appellant insurance company but it help to the complainant as the allegation regarding alcoholic consumption is raised by the insurance company and it has to establish by itself. Moreover 8 the policy at page 22 and 23 are produced by the insurance company which bar only one page these document cannot be discarded.
11. II(2012) CPJ 672 (NC) LIC of India and Ors. vs. Anupama and Ors. Hon'ble National Commission held in the said judgment that "Para 6. The authenticity of the Hospital documents was proved by the Record Keeper of the Apollo Hospitals before the Fora below. The insuree had not disclosed these facts in Column No.4 of Declaration of Good Health and had also replied in the negative on the question whether he consumed alcoholic drinks. At the time of revival of his policies that had lapsed on account of non- payment of premium he again did not disclose his pre-existing disease. Respondent has also not been able to submit any credible evidence to rebut the facts in the documents/records produced from Apollo Hospital. The various documents produced from Apollo Hospitals indicated his treatment for his pre-existing disease of Cirrhosis of Liver caused by heavy consumption of 1 and 1 litres alcohol per day. Since there is close nexus between his disease and his death, it is clear that insured had suppressed material facts regarding his health and therefore the revision petition deserves to be allowed."
"Para 7. Counsel for Respondent had contended before us that the case summary and other medical records produced from Apollo Hospital where the insured had been admitted and subsequently died is not adequate proof that he was a known case of Cirrhosis of Liver with previous UGI bleeds because the case history was based on the version given by an attendant. We are, however, unable to accept this contention because this was not the only evidence available on file to prove that the insuree had been suffering from Cirrhosis of Liver. This diagnosis was reached by a well-qualified medical expert in a reputed hospital who after examining the insuree recorded a diagnosis of chronic alcohol related liver disease. It is medically well established that Cirrhosis of Liver does not develop overnight and one of the most common causes of this disease is alcoholism. In view of these irrefutable facts, it is clear that the insuree had a pre-existing disease the information about which he had suppressed in his insurance proposal form. We are also unable to accept the reasoning of the District Forum that merely because the affidavit of the doctor who had given the said certificate has not been filed, the same is adequate reason to reject the documents from the Hospital even though these were certified by an official of the said Hospital. This Commission in LIC of India Vs. Krishan Chander Sharma II(2007) CPJ 53(NC) has ruled that if there is other credible evidence to 9 prove the fact of a pre-existing disease, mere absence of an affidavit of the concerned treating doctor is not an adequate reason to reject the proof."
11. 1. This judgment is not applicable to the insurance company because as per the facts of the cited judgments the authenticity of the hospital document was proved by record kipper of the Apollo Hospital before the Fora below. In case on hand nobody has examined on behalf of the insurance company to establish the correctness of the discharge card.
12. I (2017) CPJ 123 (NC): Kamlesh Gupta vs. ICICI Lombard General Ins. Co. Ltd. Hon'ble National Commission concluded in the above said judgment in para 9 that "The contention of the learned counsel for the petitioner/complainant is that since the terms and conditions relied upon by the insurer were never supplied to the insured, the insurer cannot be permitted to rely upon such a condition. Reliance in this regard is placed upon the decision of this Commission in National Insurance Company vs. D. P. Jain, 2007 (2) CLT 468. In our opinion, the complainant can have no personal knowledge as to whether the terms and conditions applicable to the policy taken by the deceased were supplied to him or not, such an evidence being only in the knowledge of the insured. Therefore, any averment to this effect by the complainant cannot be accepted. Moreover, admittedly the deceased was an educated person. It is clearly stated in the cover note issued to the deceased that policy was covered by and was subject to the terms, conditions and exclusions therein contained or otherwise expressed in the said policy. Had the terms and conditions applicable to the policy not been supplied to him, the deceased, he being an educated person, would atleast have written a letter to the insurer, claiming that the said terms, conditions and exclusions had not been supplied to him. Since no such letter was written by him, the inference would be that the terms and conditions applicable to the policy were either supplied to him or were brought to his notice and that is why he did not write any such letter to the insurer. We, therefore, are not inclined to accept the plea that the terms and conditions attached to the insurance policy were neither made available nor made known to the deceased."
12.1 This judgment is not applicable to this case because the insured in the present case is alive and he has personal knowledge of the policy. In the cited judgment the application made by claimant has no personal knowledge of contract. Evidence produced at page 16-23 show that in all policies nowhere mentioned about the terms and conditions.
1013. Appeal NO. 1661 of 2013: Bhupendra Vimawala vs. The New India Assurance Co. Ltd.
This judgment is not applicable to the present case on factual ground. The facts in the cited judgment are pertaining to the non-issuance of the policy. Whereas the facts in the present case is non-disclosure of the terms and conditions of the policy.
14. We have considered the facts of the complaint, defense raised by the insurance company, ground of appeal, arguments advanced by ld. advocate of both the parties, evidence on the record and facts and circumstances of the case. We are of the view that the appellant had non-disclosure of the terms and conditions to the insured it shows the deficiency of service on the part of insurance company. We are of the view that there is no illegality, infirmity in the order dated 30.10.13 passed by the ld. District Forum, Surat (Addl.) in complaint no. 492/2011 (Old Case no. 244/08). Therefore, the appeal is required to be dismissed with cost. Hence, we pass following order.
ORDER A) The Appeal No. 1317 of 2014 is hereby dismissed.
B) The order passed by the Consumer Disputes Redressal Forum, Surat (Addl.) in Consumer Complaint no. 492/11 (Old case No. 244/08 dated 30.10.2013 is hereby confirmed.
C) Interim stay granted earlier is hereby vacated.
D) The Insurance company shall also pay Rs. 15,000/- (Rupees Fifteen Thousand Only) to the complainant towards the cost of the present appeal.
E) The insurance company shall pay the amount of compensation with interest and cost within 60 days from today. In absence of any stay granted by higher forum, if the amount is not paid within the stipulated time, the complainant is entitled to extra cost of 5,000/- from the appellant.
11F) Office is directed to verify the amount deposited by the appellant in Appeal No.1317 of 2014/CMA No.274 of 2014 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by issuing A/c. payee cheque in the name of the appellant. The A/c. payee cheque may be handed over to the attending advocate after following due procedure and verification.
Pronounced in the open Court on this 21st December, 2020.
[Mr. V. P. Patel] President [Dr. J. G. Mecwan] Member M. B. Desai 12