State Consumer Disputes Redressal Commission
National Insurance Co. Ltd., vs Surjit Kaur on 19 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1420 of 2010
Date of institution : 11.8.2010
Date of Decision : 19.10.2012
1. National Insurance Co. Ltd., The Mall Bathinda through its Sr. Division
Manager.
2. Medsave Healthcare (TPA) Limited, SCO 121-122-123, 2nd Floor,
Sector 34-A, Chandigarh through its Branch Manager.
....Appellants.
Versus
1. Surjit Kaur aged about 60 years w/o Chota Singh r/o Village Behman
Kaur Singh Wala, Tehsil and District Bathinda.
2. The Behman Jassa Singh, CASS Ltd., Behman Jassa Singh, District
Bathinda through its President.
3. Bhai Ghanhiya Sehat Sewa Scheme, Trust Registrar Coop Society,
Punjab 17 Bays Building, Sector 17, Chandigarh through its Chief
Executive Officer.
...Respondents.
2nd Appeal
First Appeal No. 1690 of 2010
Date of institution : 27.9.2010
Surjit Kaur age 60 years w/o Chotu Singh, resident of Village Behman Kaur
Singh Wala, Tehsil and District Bathinda.
....Appellant.
Versus
1. The Behman Jassa Singh, CASS Ltd., Behman Jassa Singh, District
Bathinda through its President.
2. Medsave Health Care (TPA) Ltd. S.C.O. 121-122-123, Second Floor,
Sector 34-A, Chandigarh through its Branch Manager.
3. National Insurance Company Ltd., The Mall, Bathinda through its Sr.
Divisional Manager.
4. Bhai Ghanhiya Sehat Sewa Scheme Trust, Registrar Cooperative Society,
Punjab, 17 Bays Building, Sector 17, Chandigarh through its Chief
Executive Officer.
...Respondents.
3rd Appeal
First Appeal No. 2107 of 2010
Date of institution : 14.12.2010
Bhai Ghanhiya Sehat Sewa Scheme, Trust, SCO No. 16, Sector 7-C,
Chandigarh through its Chief Executive Officer.
....Appellant.
Versus
1. Surjit Kaur w/o Shri Chota Singh, resident of Village Behman Kaur
Singh Wala, Tehsil and District Bathinda.
2. The Behman Jassa Singh Co-operative Agricultura Society Ltd.,
District Bathinda through its Secretary.
3. National Insurance Company Ltd., The Mall, Bathinda through its Sr.
Divisional Manager.
First Appeal No. 1420 of 2010 2
4. Med Save Health Care, SCO 121-123, First Floor, Sector 34-A,
Chandigarh.
...Respondents.
First Appeals against the order dated 22.6.2010 of the
District Consumer Disputes Redressal Forum, Bathinda.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present in F.A. No. 1420 of 2010:-
For the appellants : Sh. Rajneesh Malhotra, Advocate For respondent No.1: Sh. Mukand Gupta, Advocate For respondent No.2: Sh. Prem Kumar, Advocate For respondent No.3: Sh. B.S. Bhatia, Representative PIARE LAL GARG, PRESIDING MEMBER:
This order will dispose of following three appeals:-
S. First Appeal Appellant's Name Respondent's Name Order
No. No.
1. 1420 of 2010 National Insurance Surjit Kaur and others 22.6.2010
Company and
another
2. 1690 of 2010 Surjit Kaur The Behman Jassa Singh 22.6.2010
CASS Ltd. etc.
3. 2107 of 2010 Bhai Ghanhiya Sehat Surjit Kaur and others 22.6.2010
Sewa Singh Trust
All the three appeals are against the impugned order dated 22.6.2010 passed by the District Consumer Disputes Redressal Forum, Bathinda(in short the "District Forum") and are disposed off in a single order. The facts are taken from 'First Appeal No. 1420 of 2010' and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that respondent No.1/ complainant(hereinafter called 'respondent No.1') was member of respondent No.2 Co-operative Society and insured herself under Bhai Ghanhiya Sehat Sewa Scheme, which was floated by respondent No. 3 through appellant No. 2. Respondent No. 1 paid the requisite premium and insured herself under the scheme. Identity Card No. First Appeal No. 1420 of 2010 3 90109071200022G Soc Code 712 and policy No.400104/46/08/85/00000096 was issued to her by appellant No. 2 for one year i.e. from 1.10.2008 to 30.09.2009. The copy of the policy was not supplied and terms and conditions were also not supplied to her. Respondent No. 1 received head injury by slipping in the bathroom on 08-03-2009 and she was taken to Pragma Hospital at Bathinda where no doctor was available, as such, she was taken to hospital of Dr. Dinesh Gupta for first aid. Dr. Dinesh Gupta, after seeing the serious condition of the patient, referred her to D.M.C., Ludhiana. Respondent No. 1 remained admitted in D.M.C., Ludhiana and spent Rs. 2,50,000/- on her treatment alongwith cost of medicines and traveling expenses. After that the son of respondent No. 1 informed the appellants and respondents No. 2 & 3 about the injury and treatment of respondent No. 1 and submitted the insurance claim with all requisite documents to the appellants, which was repudiated but no reason of rejection was intimated to respondent No.1. Respondent No. 1 was taken to D.M.C. Ludhiana on the advice of Dr. Dinesh. Non-payment of claim by the appellants and respondent No. 3 amounts to deficiency in service. The complaint was filed by respondent No. 1 with the prayer that the appellants and respondent No.3 may be directed to pay the medical expenses of Rs, 2,00,000/- which was incurred on treatment of her and compensation of Rs. 80,000/- on account of mental tension and harassment and Rs. 10,000/- as litigation expenses.
3. Upon notice, respondent No. 2 replied that complaint was not maintainable against the answering respondent as no relief was sought against respondent No. 2. On merits, it was admitted that respondent No. 1 was her Member and was insured under the policy. All other allegations were denied and dismissal of the complaint was prayed qua the answering respondent.
First Appeal No. 1420 of 2010 4
4. The appellants replied by taking preliminary objections respondent No. 1 has not come to the District Forum with clean hands and suppressed the material facts, the District Forum has got no jurisdiction to try and decide the complaint. On merits, it was admitted that identity card was issued to respondent No. 1 but it was pleaded that the same was obtained by respondent No. 1 by concealing the true facts regarding her age. It was pleaded that respondent No. 1 has not disclosed her age correctly in the proposal form, as such, she was not entitled to any relief. By mentioning wrong age, respondent No. 1 had breached the fundamental principle of utmost good faith, which was binding upon the parties. Respondent no. 1 has mentioned her age as 50 years whereas she was more than 55 years of age at the time of taking the Insurance policy. Bhai Ghanhya Sehat Sewa Scheme Trust floated the scheme only for the persons having the age upto 50 years, as such, she was not eligible for insurance cover. The contract of insurance was void and insurance company was not liable to pay any claim. It was pleaded that there was/is difference in premium slab. Respondent No. 1 falls under the second slab but she paid the premium as per the first slab only. Due to concealment of true facts about her age, her medical Identity Card issued by National Insurance Company was blocked and intimation of the same was sent to the original insured i.e. Bhai Ghanhya Sehat Sewa Scheme Trust.
5. The appellants further pleaded that respondent No. 1 neither have taken the treatment from the empanelled hospital nor any intimation was received from D.M.C., Ludhiana for cashless treatment to respondent No.1. The Insurance policy of cashless treatment was applied only on the empanelled hospitals. The D.M.C. Hospital was not on the panel of the appellants.
First Appeal No. 1420 of 2010 5
6. Respondent No. 3 replied by taking preliminary objections that the District Forum has no jurisdiction to try and decide the complaint. On merits, it was pleaded that member/beneficiary has been clearly informed regarding financial and legal liabilities, if any, arising consequent to the operationalization of the scheme or the policy, shall rest exclusively and unconditionally with the TPA & the Insurance Company i.e. the appellants, Respondent No. 3 was not responsible in any manner. The role of the Trust was/is only confined to the passing of the premium paid by the members to the insurer on their behalf. The member has given his/her undertaking on the enrollment form which was supplied to him/her that he/she had read and understood all the terms and conditions of the Scheme. She undertook to abide by all such terms and conditions, which were contained in the service level agreement executed between the Trust and the insurer on behalf of the beneficiaries by respondent No.3. First Appeal No. 1690 of 2010
7. This appeal was filed by Surjit Kaur-complainant for modification of the impugned order and for enhancement of the amount awarded by the District Forum.
First Appeal No. 2107 of 2010
8. This appeal was filed by Bhai Ghanhiya Sehat Sewa Scheme for setting aside the impugned order dated 22.6.2010 qua the appellant.
9. Learned District Forum after hearing the learned counsel for the parties and going through the record, allowed the complaint against the appellants and respondent No. 3 and directed them to pay Rs. 51,075/- to respondent No. 1. Complaint against respondent No. 2 was dismissed.
10. Hence, the appeal.
First Appeal No. 1420 of 2010 6
11. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
12. It is admitted case of the appellants that respondent No. 1 was insured under Bhai Kanhiya Sehat Sewa Scheme for the period of 1.10.2008 to 30.9.2009. It is also admitted case of the appellants that identity card No. 90109071200022G Soc Code 712 was issued by the appellants to respondent No. 1.
13. It is also not disputed that respondent No. 1 suffered head injury due to slipping in the bathroom and she was taken firstly to Prgama Hospital, Bathinda but due to non-availability of the Doctor, she approached Dr. Dinesh Gupta, who after giving first aid referred her to D.M.C. Ludhiana as the condition of respondent No. 1 was critical.
14. The counsel for the appellants submitted that the claim of respondent No. 1 is yet not decided, as such, the complaint of respondent No. 1 was pre-mature and the same is liable to be dismissed and the order under appeal passed by the District Forum is liable to be set-aside.
15. Respondent No. 1 had taken the treatment in the month of March, 2009 and respondent No. 1 must have submitted the documents to the appellants within 30 days from the date of her discharge from the hospital and three years had elapsed but till date the claim of respondent No. 1 is not decided by the appellants, which is clear cut deficiency in service on the part of the appellants. The appellants had also not tendered into evidence any letter vide which any further document was required to settle the claim; sent to respondent No. 1. Even in the reply to the complaint or in the grounds of appeal, nowhere it is mentioned that the requisite documents were not supplied by respondent No. 1 for the settlement of the claim.
First Appeal No. 1420 of 2010 7
16. The version of the appellants for non-payment of the claim is that respondent No. 1 had taken the treatment from D.M.C. Hospital, Ludhiana which was not on the panel of authorized hospitals under Bhai Ghanhiya Sehat Sewa Scheme, as such, she was not entitled for the payment of claim. But the appellants have not produced any evidence that respondent No. 1 was not admitted in the D.M.C. Hospital in a very serious condition and in such circumstances, the wards and family members of the patient think only to save the life of the patient and not to go through the list of the hospitals, which is or was on the panel of Bhai Ghanhiya Sehat Sewa Scheme. As respondent No. 1 was referred by Dr. Dinesh Gupta, Neuro Surgeon to D.M.C. Hospital in emergency circumstances, her family members had taken her to D.M.C. Hospital to save her life. In the similar circumstances case, the Hon'ble Punjab & Haryana High Court in case "Som Nath Kapoor Vs. State of Haryana", 1996 (4) RSJ page 646 observed that admission of the patient in an emergency circumstances in a non-panelled hospital is valid and repudiation of the claim on this ground is held to be unreasonable, unjust and arbitrary.
17. The second reason for non-payment of the claim is that respondent No. 1 had not disclosed her age correctly at the time of furnishing the member enrollment form under Bhai Ghanhiya Sehat Sewa Scheme and she had disclosed her age as 50 years whereas she was more than 50 years of age at the time of taking the insurance policy. It is not disputed by the appellants that the form submitted by the Secretary of respondent No. 2 Society to respondent No.3, which was forwarded to appellant No. 1 was accepted by appellant No. 1 as per under-writing decision. Before the acceptance of date of birth mentioned in the member enrollment form under Bhai Ghanhiya Sehat Sewa Scheme, no objection was raised regarding the age of respondent No. 1 by the appellants and First Appeal No. 1420 of 2010 8 even till the submission of the claim by respondent No. 1 no query was raised by the appellants regarding the age disclosed by respondent No. 1 in Member Enrollment Form.
18. We have also gone through Service Level Agreement entered on 2nd day of May 2008 between National Insurance Company Ltd. (insurer) and The Bhai Ghanhya Trust and Condition No. 7.1.10 relates to the issuance of the identity card after the acceptance of enrollment form submitted by the insured, which is reproduced:-
"7.1.10 The Insurer shall underwrite the Beneficiaries in accordance with the terms of the Policy. The Enrollment Forms underwritten and verified by the Insurer shall also be attested and stamped by the Insurer before being forwarded to the TPA for issuance of the I.D. Cards. The Insurer shall be fully and exclusively responsible for any fault/ mistake in underwriting of the Beneficiaries, with respect to any deviation from the definition of the word "Family", permissible age limit, premium computed for that Family, timely collection of premium from the Beneficiaries and shall solely bear the consequent financial or other losses, if any."
19. It is also settled law that if once the insurance co. accepts the age of the life assured, they have no right to repudiate the insurance claim by alleging her age to be different than that. Hon'ble Calcutta High Court in case "Allianz and Stuttgarter Life Insurance Bank Ltd. V. Hemanta Kumar Dass", AIR 1938 Cal. 641 dealt with the above question and held as under:-
"It is to be borne in mind that this was an insurance by a man who admittedly was, at any rate, at the age of over forty-five years. He himself stated that he was fifty four. Therefore, the transaction came within the category of those proposals which require at the outset the furnishing by the proponents of proof of their age. Noot Behari Das was required to furnish proof of his age. He produced a horoscope. The horoscope was accepted by the company as being sufficient. Therefore, we may take that the company issued the policy upon the footing that they were insuring the life of a man whose age was fifty four. This is not a case where the proposer says that his age was fifty four and the Company merely accepted that statement at its face value and proceeded to issue a policy on that tooting and subsequently, either shortly afterwards or a long time afterwards, First Appeal No. 1420 of 2010 9 admitted the age as stated in the policy in accordance with the provisions of Clause 9(2) thereof. This was a case where the whole transaction from the very beginning proceeded upon the basis that the company has satisfied themselves that the proposer was of the age of fifty four and then issued the policy accordingly. In my view therefore the admission contained in the endorsement at page 3 of the policy is of such a character that the defendants when the policy matured could not be heard to say that the age of the insured was anything different from what he himself had stated it to be in Februrary 1934. It is not necessary that one should apply in terms of the principle of estoppel, because that is merely a rule of evidence. In my view, this matter goes far deeper than that. The question of the age of the deceased was a definite and determining factor in the transaction from the very outset."
20. The Hon'ble Apex Court in case "P.C. Chacko and another Vs. Chairman, Life Insurance Corporation of India and others", (2008) 1 SCC 321, held that three conditions essential for application of Section 45 of the Insurance Act, 1938 are as under:-
(a) the statement must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy holder; and
(c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
21. This question was also dealt with by this Commission in number of judgments and upheld the above law. In case "Balwinder Singh v. The Life Insurance Corporation of India & Anr.", 2010(3) CPR 235, this Commission held in para No. 28 as follows:-
"28. In view of the discussion held above, we hold that once the respondents had accepted the age of Gian Kaur to be 45 years, they have no right to repudiate the insurance claim by alleging her age to be different than that."
22. As the appellants told that claim of respondent No. 1 is not decided till date, as such, respondent No. 1 is directed to re-submit the claim with the appellants and the appellants will pay the claim amount to First Appeal No. 1420 of 2010 10 respondent No. 1 within one month from its submission. If they failed to pay the same, they will liable to pay interest @ 9% per annum from 7.1.2010 i.e. from the date of filing the complaint till payment.
23. Accordingly, the order under appeal is modified to the above extent.
First Appeal No. 2107 of 2010
24. However, respondent No. 3 is only the Service Provider and is not liable to pay the claim to respondent No. 1, as such, there was no deficiency on its part and order passed by the District Forum against respondent No. 3 is set-aside. Accordingly, the First Appeal No. 2107 of 2010 is accepted and the order under appeal is modified. First Appeal No. 1690 of 2010
25. We find no ground in the appeal of respondent No.1-Surjit Kaur for enhancement of the amount, as such, the same being without any merit is dismissed. No order as to costs.
26. The arguments in these appeals were heard on 11.10.2012 and the orders were reserved. Now the orders be communicated to the parties.
27. The appellants in First Appeal No. 1420 of 2010 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No.2 way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
28. The appellant in First Appeal No. 2107 of 2010 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. As the appeal of the appellant is accepted, as such, this amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the First Appeal No. 1420 of 2010 11 registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
29. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
October 19, 2012. (Jasbir Singh Gill)
as Member