Punjab-Haryana High Court
The New India Assurance Company Limited vs Sunita Bhandari on 28 March, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.315 of 2013 (O&M)
Date of decision: 28.03.2014
The New India Assurance Company Limited
-----Appellant(s)
Vs.
Sunita Bhandari
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vinod Chaudhri, Advocate
for the appellant.
Mr. Ashok Jindal, Advocate
for the respondent.
---
RAKESH KUMAR GARG, J.
This is defendant's second appeal challenging the judgments and decrees of the Courts below, whereby suit of the plaintiff-respondent for recovery of an amount of Rs.3,30,000/- along with interest @ 6% per annum on the principal amount of Rs.3,00,000/- from the date of filing of the suit till its actual payment has been decreed by the trial Court vide judgment and decree dated 10.9.2010 and further appeal against the aforesaid judgment and decree of trial Court has been dismissed by the Additional District Judge, Bathinda vide judgment and decree dated 4.9.2012. Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 2
According to the plaintiff-respondent, she was purchasing the mediclaim policy from the defendant regularly w.e.f. 28.2.1995. The plaintiff never claimed any reimbursement in respect of the aforesaid policy since then and on this account, she was also given a bonus of 25%. She purchased policy No.4836060001399 w.e.f. 28.2.2002 valid upto 27.2.2003. Defendant never sent any terms and conditions of the policy to her. She felt pain in her leg and she consulted Dr. S.L. Grover of Bathinda on 1.3.2002, who advised some tests which were got done. On the basis of the report of clinical/medical tests, the doctor advised her about the problem. Thereafter, she got herself checked from DMC, Ludhiana as well as PGI, Chandigarh and it was found that she was suffering from Atrial Septal Defect. Earlier to this, she was not having any symptoms of Atrial Septal Defect and she was leading a happy married life. She also gave birth to two children in the years 1982 and 1986. On the advice of the doctors, the plaintiff got her treatment in Escorts Heart Institute & Research Centre Ltd., New Delhi and she was operated on 23.7.2002. She spent Rs.3,00,000/- on her treatment. The medical report and medical bills were presented to the defendant for encashment. However, vide letter dated 25.2.2003, the defendant refused to pay the claim of the plaintiff. Hence, the suit.
Upon notice, the defendant appeared and filed written statement raising various preliminary objections. It was stated that the plaintiff had suppressed material facts regarding her health Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 3 while submitting her proposal form for obtaining mediclaim insurance policy. The plaintiff was fully aware that she was suffering from Atrial Septal Defect, which is a heart disease and the same was present since her birth and her claim was repudiated after thorough investigation by a panel of doctors and thus, the suit was not maintainable. However, on merits, the defendant admitted that the plaintiff had purchased the mediclaim policy and also admitted that she submitted medical records as well as bills regarding her treatment and thus, prayed for dismissal of the suit, claiming that the plaintiff was not entitled to mediclaim due to the terms and conditions of the policy.
No replication was filed.
From the pleadings of the parties, following issues were framed:-
"1. Whether the plaintiff is entitled for recovery of Rs.3,30,000/- from the defendant for the reasons mentioned in the plaint? OPP
2. Whether the plaintiff is entitled for interest, if so, at what rate? OPP
3. Whether this Court has no jurisdiction to try and entertain the present suit? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the plaintiff is stopped by her act and conduct from filing the present suit? OPD
7. Relief."Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 4
After hearing counsel for the parties and considering the evidence on record, the trial Court decreed the suit, deciding issue no.1 in favour of the plaintiff and issues no.3 to 6 against the defendant.
Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant preferred an appeal before the first Appellate Court which was also dismissed. While dismissing the appeal, the lower Appellate Court observed as under:-
"20. The plaintiff has claimed in para No.1 of the plaint that she was regularly purchasing mediclaim policy from defendant from 28.2.1995 without any break. Previously her husband Rajinder Bhandari was purchasing the same policies. This fact is admitted as correct by the defendant while replying to para NO.1 of the plaint. The plaintiff has stated in her affidavit which is Ex.PW-4/A that this Atrial Septal Defect disease was not in her knowledge as there was no symptom nor occurred before 1.3.2003. Although, Dr. Jaswinder Singh Romana who is examined as PW-1 has admitted during cross examination that Atrila Septal Defect is disease by birth but no suggestion was given this doctor that this disease came to the knowledge of the concerned person at such age. It has come in the cross examination of Dr. Sohal Lal Grover who is examined as PW-2 that in most of the cases the disease known as A.S.T is not discovered by the patient even at the age of 20. Similar is answer given by Dr. Harpreet Singh Bhodey who is examined as PW3 that A.S.T disease is by birth, but no suggestion was given when this fact came to knowledge of the concerned patient. Even otherwise in normal course of Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 5 nature a person cannot detect her/his disease unless there is some problem to his or her health and disease can be detected on the diagnosis by the concerned doctor or laboratories. The defendant did not lead any evidence to show that plaintiff was taking any treatment prior to 28.2.2002. The conduct of the plaintiff is also a natural one as prior to 1995 her husband was purchasing the same mediclaim policy but defendant did not brought on record any evidence that earlier the plaintiff or her husband even claimed such a claim. No evidence is led by the defendant to prove that conditions of the policies Ex.D1 and Ex.D2 were ever brought to the notice of the plaintiff by the concerned agent of the defendant company. The learned trial Court has considered all these factors and came to the conclusion that plaintiff has no knowledge about her disease at the time of purchasing mediclaim policy and hence, she is entitled to reimburse her mediclaim bills by the defendant company."
Still not satisfied, the defendant has filed the instant appeal submitting that following substantial question of law arises in this appeal for consideration of this Court:-
"Could the insurer go beyond the contract of indemnity and accept the claim of the insured when the policy terms do not permit the same?"
After considering the contentions raised on behalf of the appellant, this Court passed following order on 12.3.2013:-
"Learned counsel for the appellant inter alia contends that the award passed by the Tribunal is contrary to the terms and conditions of the policy. Even, the claimant was not aware about the existence Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 6 of ailment, which is from birth, still liability has been fastened upon the insurance company.
Notice of motion for 14.05.2013.
Meanwhile, amount of compensation be
disbursed to the claimant subject to furnishing
adequate security."
Counsel for the appellant has vehemently argued that as per the terms and conditions of the policy, the company was not liable to make any payment incurred by the plaintiff-respondent in connection with any such disease which has been in existence at the time of proposing the insurance policy. In the instant case, the respondent has suppressed material facts from the defendant while submitting the proposal form for obtaining mediclaim insurance policy. She was fully aware that she is suffering from Atrial Septal Defect, which is a heart ailment and that disease was present since birth and since the respondent has concealed a pre-existing disease, her claim was rightly repudiated by the appellant and thus, the substantial question of law, as raised, do arise in this appeal.
There is no dispute between the parties with regard to purchasing the mediclaim policy by the plaintiff-respondent. The parties are also not at issue with regard to genuineness of the medical treatment taken or the bills submitted. In fact, parties are also not at dispute with regard to the disease of the plaintiff-
respondent. The dispute is whether the plaintiff had the knowledge of her heart disease i.e. Atrial Septal Defect when she purchased the mediclaim policy from the defendant or not.Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 7
The plaintiff-respondent while appearing as PW-4, has deposed, vide her affidavit Ex.PW-4/A that she had been living a normal happy life and had also given birth to two children in the year 1982 and 1986 and she had come to know about her heart disease for the first time when she was advised by Dr. Grover, on the basis of medical tests and examination. Admittedly, in her cross-examination, nothing could be elicited from her that she was in the knowledge of her disease and she had suppressed this fact from the appellant at the time of purchasing the policy. Even the defendant-appellant has not produced any evidence to prove that the terms and conditions of the mediclaim policy (Ex.D1) were ever sent to the plaintiff. No doubt, as per the terms and conditions of the policy, mediclaim in respect of a pre-existing disease is not payable, however, there is nothing on record to prove that such terms and conditions which exclude payment of mediclaim against a pre-existing disease, were explained to the plaintiff-
respondent at the time of issuance of the insurance policy.
Moreover, the appellant has failed to prove on record any definite opinion of the medical experts to the effect that such a disease cannot occur at a later stage. In fact, there is ample evidence on record to prove that the respondent was living a normal happy life and had also given birth to children and she came to know about the disease only on her examination by Dr. Grover on 1.3.2002.
Admittedly, the plaintiff-respondent was purchasing the mediclaim policy since 1995. In case, she had the knowledge of her disease, Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 8 she would have immediately got herself checked and treated from the hospital, as the disease was such which could not have been ignored. Not only this, the medical experts produced on behalf of the plaintiff-respondent have opined that it is not necessary that a child suffering from Atrial Septal Defect is weak than a normal child and cannot lead a normal life. Not only this, the reports of medical experts placed on record by the appellant as Ex.D3 and Ex.D4 have not been got proved by the appellant from the experts who submitted these reports and thus, the plaintiff-respondent could not avail an opportunity to cross-examine those experts regarding their opinion that she knew her disease before taking the policy. The appearance of these witnesses in the witness box was necessary to prove that such a disease cannot occur at a later stage and has to be from birth and was in the knowledge of the plaintiff-
respondent. Further, there is nothing on record to suggest that the plaintiff-respondent was taking any treatment for the disease in question prior to her examination by Dr. Grover. Admittedly, appellant has not produced the proposal form filled up by the plaintiff-respondent at the time of purchasing the policy. The said proposal form could have thrown light upon some facts, as it could not be disputed before this Court that normally, while issuing a mediclaim policy, the medical examination of such a purchaser of the policy is got done by the insurance company and thus, a material fact has been withheld by the appellant.Kumar Ashwani 2014.04.03 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.315 of 2013 9
In view of the aforesaid discussion, it cannot be held that the impugned judgments and decrees of the Courts below suffer from any perversity.
Thus, in view of facts and circumstances of the case, this Court is of the opinion that the substantial question of law, as raised, does not arise in this appeal.
Dismissed.
March 28, 2014 [RAKESH KUMAR GARG]
ak JUDGE
Kumar Ashwani
2014.04.03 11:21
I attest to the accuracy and
integrity of this document
High Court Chandigarh