State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs A.K. Mittal And Another on 4 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 94 / 2007
The Oriental Insurance Company Limited
through Branch Manager, Branch Office
Near Siddhu Palace, District Udham Singh Nagar
through Senior Divisional Manager
The Oriental Insurance Company Limited
47, Rajpur Road, Dehradun
......Appellant / Opposite Party No. 1
Versus
1. Sh. A.K. Mittal S/o Sh. Prakash Chand Mittal
R/o 25A, Kalyani View, Rudrapur
District Udham Singh Nagar
......Respondent No. 1 / Complainant
2. M/s Med Save Health Care Ltd.
F 701A, Lado Sarai
Behind Golf Course
New Delhi - 110030
......Respondent No. 2 / Opposite Party No. 2
Sh. J.K. Jain, Learned Counsel for the Appellant
None for Respondents
Coram: Hon'ble Justice B.C. Kandpal, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 04/05/2011
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 19.02.2007 passed by the District Forum, Udham Singh Nagar, partly allowing consumer complaint No. 54 of 2005 and directing the opposite party No. 1 - appellant to pay to the complainant compensation of Rs. 1,91,661/- together with interest @6% p.a. from 28.03.2005 till the date of actual payment and also to pay litigation expenses of Rs. 1,000/-. The 2 consumer complaint was, however, dismissed against the opposite party No. 2.
2. In brief the facts of the case are that the complainant purchased a mediclaim policy for himself and his wife from the opposite party No. 1 - The Oriental Insurance Company Limited covering the period from 03.05.2003 to 02.05.2004. The complainant took an insurance cover for sum of Rs. 2,00,000/- for himself and for sum of Rs. 1,00,000/- for his wife. In the month of February, 2004, the complainant suddenly fell ill and on the advice of local medical practitioners, got himself admitted in Pushpawati Singhania Research Institute, New Delhi on 12.02.2004 for specialized treatment, intimation whereof was given to the insurance company on 13.02.2004. Thereafter, the complainant got himself treated at Dhanwantari Tomer Hospital, Bareilly from 12.02.2004 to 27.02.2004 and the complainant submitted bills / cash memos for sum of Rs. 66,649/- to the insurance company towards part claim. Thereafter, from time to time, the complainant submitted his claim with the insurance company for reimbursement of the medical expenses incurred by him in his treatment. The total amount spent by the complainant in his treatment was to the tune of Rs. 1,91,660.73/-, but the insurance company did not settle the claim. Alleging deficiency in service on the part of the opposite parties, the complainant filed the consume complaint before the District Forum.
3. The insurance company filed written statement and pleaded that the complainant was suffering from kidney disease from before three years from the date of purchasing the mediclaim policy, but this fact was suppressed by him and the complainant got the policy issued by making false representation. Therefore, the insurance company repudiated the claim of the complainant vide their letter dated 20.01.2005 and no deficiency in service was made.
34. The District Forum, on an appreciation of the material on record, allowed the consumer complaint against the insurance company vide order dated 19.02.2007 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
5. We have heard the learned counsel for the appellant and have also gone through the record. None appeared on behalf of respondents despite service.
6. The record reveals that the complainant had taken the mediclaim policy for himself and his wife for sum of Rs. 2,00,000/- and Rs. 1,00,000/- respectively from The Oriental Insurance Company Limited. The policy was taken on 03.05.2003. Thereafter the complainant fell ill in the year 2004 and he remained hospitalized in Pushpawati Singhania Research Institute, New Delhi for his treatment. The complainant got himself treated for about one month and the complainant has claimed the amount spent on his treatment w.e.f. 12.02.2004 to 28.02.2005 from the insurance company.
7. The insurance company has repudiated the claim of the complainant only on the ground that the complainant had concealed his ailment and, in fact, he was suffering from the ailment of kidney prior to three years from the date of taking the mediclaim policy. The insurance company has filed the affidavit of Sh. G.S. Jangpangi, Divisional Manager, Divisional Office, Haldwani along with the papers relating to the treatment of the complainant as an outdoor patient in Pushpawati Singhania Research Institute, New Delhi. The outdoor patient card filed by the insurance company nowhere indicates that the complainant had, in fact, been suffering with the ailment of kidney prior to 03.05.2003, i.e., the date when he took the mediclaim policy. The complainant in his affidavit has stated that he fell ill all of a sudden in the month of February, 2004 and on the 4 advice of the doctors, he went to Pushpawati Singhania Research Institute, New Delhi for his treatment. He has also stated in his affidavit that the policy was renewed for further period of one year after the expiry of its term on 02.05.2004. The impugned judgment passed by the District Forum indicates that the District Forum vide order dated 10.11.2006 directed the insurance company to file the declaration form submitted by the complainant before taking the mediclaim policy as well as the proposal form, but the insurance company failed to produce these documents before the District Forum. Therefore, we do not find that there is any evidence available on record which may indicate that the complainant suppressed the material fact with regard to the pre-existing disease. There is no iota of evidence on record which may suggest that the complainant, at the time of filling the proposal form or obtaining the policy, had any knowledge of his ailment or had any sort of symptom with regard to the alleged disease related to kidney. The repudiation of the claim by the insurance company can not be held to be justified in any manner.
8. Learned counsel for the insurance company has submitted before us two decisions of the Hon'ble National Commission in the matter of Asha Devi Vs. Life Insurance Corporation of India; IV (2008) CPJ 109 (NC) and Patel Kirtikumar Prehladbhai Vs. National Insurance Company Ltd.; III (2009) CPJ 199 (NC) and has tried to emphasize on this aspect that if the complainant did not disclose the disease with which he was suffering at the time of taking the policy and showed his good health, which was proved to be wrong, then the complaint filed by the complainant to make unlawful gain, should not be allowed and under the said circumstances, the repudiation of the claim by the insurance company would be justified. Learned counsel for the insurance company has also cited a decision dated 02.02.2010 of this Commission rendered in First Appeal 5 No. 249 of 2006; Rajesh Kumar Gupta Vs. The Oriental Insurance Company Limited and others, wherein the principle has been laid down that in case the complainant has withheld the information regarding the pre-existing disease while giving answer to the question asked in the proposal form and also while giving details of the ailment which were required to be given in the proposal form, then the same would amount to suppression of material fact as regards the pre- existing disease and the insurance company would be justified in repudiating the claim. On a careful examination, we are of the view that all these judgment cited by the learned counsel for the appellant, would not be applicable to the facts and circumstances of the present case, as in the instant case, it can not be said that at the time when the proposal form was filled by the complainant and he took the mediclaim policy, he had any symptom with regard to the ailment related to kidney. There is no iota of evidence on record to prove that the complainant had any kind of knowledge with regard to the ailment with which he suffered in the year 2004, i.e., after about 9 months of taking the mediclaim policy.
9. For the reasons stated above, we are of the view that the District Forum has rightly allowed the consumer complaint and the impugned judgment and order passed by the District Forum does not require any interference. The appeal lacks merit and is liable to be dismissed.
10. Appeal is dismissed. Impugned judgment and order dated 19.02.2007 passed by the District Forum is confirmed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K