National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Subhash Chandra on 19 May, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 469 OF 2006 (Against the order dated 23.11.2005 in Appeal No. 1438/2004 of the M.P. State Consumer Disputes Redressal Commission, Bhopal) United India Insurance Co. Ltd. Branch 35 Dhar M.P. Through Manager United India Insurance Co. Ltd. Kanchanjunga Bldg., 8th Floor Barakhamba Road New Delhi-110 001 Petitioner/Opp. Party Versus Subhash Chandra S/o Shri Shantilal Lalwani R/o Radhakrishnam Marg Jhabua M.P. Respondent/Complainant BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MR. S.K. NAIK, MEMBER For Petitioner : Mr. S.M. Tripathi, Advocate For Respondent : Mr. S.K. Sharma, Advocate Pronounced on 19th May, 2010 ORDER
Per S.K. Naik, Member This revision petition has been filed by United India Insurance Company Ltd., herein-after referred to as the Insurance Company, who was sole opposite party before the District Consumer Disputes Redressal Forum, Jhabua (District Forum for short) against the order dated 23rd of November, 2005 passed by M.P. State Consumer Disputes Redressal forum, Bhopal (State Commission for short). Vide the order impugned the State Commission while dismissing the appeal of the petitioner-Insurance Company has upheld the order of the District Forum, whereby the petitioner-Insurance Company was directed to pay the mediclaim after determining the amount with interest @ 6% per annum w.e.f. 29.03.2003.
Payment of cost of Rs.500/- was also awarded.
Facts, in brief, giving rise to the present dispute are as under :-
The respondent-complainant had taken mediclaim insurance policy no. 190303/48/02/00100 from the petitioner-Insurance Company, which was valid for the period from 24.05.2002 to 23.05.2003.
On 31.05.2002 the respondent-complainant suffered a heart attack on account of which firstly he was admitted in Sri Narhari Arogya Kendra (Hospital) at Baroda where he remained under their treatment from 01.06.2002 to 06.06.2002 and thereafter he was admitted in Sterling Hospital, Ahmedabad where he was hospitalized from 07.06.2002 to 10.06.2002. Thereafter, on 17/07/2002, he intimated the petitioner-Insurance Company about his hospitalization and also preferred a claim for reimbursement of the amount spent on the treatment.
The petitioner-Insurance Company on 01.08.2002 repudiated the claim of the respondent-complainant mainly relying on the exclusion clause 4.02. Pursuant to this repudiation, the respondent-complainant again preferred a claim on 12.08.2002 before the petitioner-Insurance Company, which too was repudiated by the petitioner-Insurance Company on 16.08.2002, this time relying on exclusion clause 4.1. The complainant made yet another attempt to convince the Insurance Company of his claim but of no avail.
In this background, the respondent filed a complaint before the District Forum, narrating the above facts as well as the details regarding his treatment. Vide his complaint, the respondent-complainant prayed for directions to the petitioner-Insurance Company to pay the insured amount of Rs.1 Lakh as claimed by him and to pay Rs.25,000/- on account of mental agony and harassment besides the litigation cost. After hearing the parties and on consideration of the evidence adduced by them, the District Forum accepted the complaint of the respondent-complainant and passed the order as stated above.
Feeling aggrieved with this order of the District Forum, the petitioner-Insurance Company filed an appeal before the State Commission, which too did not find any favour and was dismissed by the State Commission.
Dissatisfied with the concurrent orders of the fora below that the Insurance Company-opposite party have filed this revision petition.
We have heard learned counsel for the parties.
We have also perused the orders of the District Forum and the State Commission as well as available records of the case.
Facts not in dispute may be noted for a just and proper adjudication of the dispute. Admittedly, the respondent-complainant submitted a proposal form for obtaining a mediclaim insurance policy for Rs.1 Lakh each for himself and his wife for the first time on 23rd of May, 2002. The policy was issued the next day i.e. on the 24th of May, 2002 covering the period upto 23rd of May, 2003. The respondent-complainant, however, suffered a heart attack within a week of obtaining the policy on the 31st of May, 2002 and was admitted in Sri Narhari Arogya Kendra at Baroda where he remained under their treatment for about a week until 6th of June, 2002, where-after he was shifted to Sterling Hospital, Ahmedabad and was hospitalized there from 7th of June, 2002 to 10th of June, 2002. A week after the discharge from the Sterling Hospital, he intimated the petitioner-Insurance Company about his ailment and treatment and filed a claim for the reimbursement of the medical expenses.
Learned counsel for the petitioner-Insurance Company has contended that the facts of the case squarely fall within the exclusion clause 4 of the policy. The relevant part of the said clause relied upon by the learned counsel reads as under :-
4. EXCLUSIONS :
4.0 The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of :-
4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time.
4.2 Any disease other than those stated in clause 4.3, contracted by the Insured person during the first 30 days from the commencement date of the policy. This exclusion shall not, however, apply if in the opinion of Panel of Medical Practitioners constituted by the Company for the purpose, the insured person could not have known of the existence of the Disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the Company. This condition 4.2 shall not however apply in case of the insured person having been covered under this scheme or group insurance scheme with any of the Indian Insurance Companies for a continuous period of preceding 12 months without any break.
Since the conditions in the policy are in the nature of contract and, therefore, binding between the parties, both the fora below have, contrary to the settled position of law, failed to appreciate that there has been a clear breach of the terms of the policy, inasmuch as clause 4.2 clearly states that any disease other than those referred to in clause 4.3, such as Cataract, Benign Prostatic, Hupertrophy, Husterectomy etc. contracted by the insured person during the first 30 days from the commencement of the date of the policy would not be covered.
The respondent-complainant having suffered a heart attack within 7 days of the inception of the policy, therefore, clearly falls under the mischief of this clause.
Learned counsel further referred to the medical report of the Sterling Hospital, Ahmedabad and has submitted that the said hospital has given two different reports, which, to say the least, are not in conformity with each other and the report issued on 25th of December, 2002 appears to have been given to help the respondent-complainant when it says that He was detected to have Diabetes Mellitus after admission. On presentation there was no history of Diabetes Mellitus or Hypertension.
Subsequently, he underwent CAG & PTCA + stenting. The said report dated 25th of December, 2002 does not refer to the respondent-complainant being hypertensive and having complaint of chest pain 40 days back and also having positive family history of IHD etc., which was recorded in the certificate of 16th of June, 2002. Thus, the respondent-complainant suppressed the fact that he was hypertensive and had chest pain 15 days prior to the obtaining of the policy. This amounts to suppression of material fact. It is corroborated also from the fact that the chest pain, which the respondent-complainant had developed 40 days prior to admission in Sterling Hospital and a fortnight before the issue of the policy, was because of Diabetes Mellitus, hypertension and family history of IHD and the heart attack, which was caused as a result of blockage of arteries, would have developed over a period of time and not all of a sudden. The claim, therefore, would squarely fall under the exclusion clause 4.1 as it pre-existed and the respondent-complainant had deliberately suppressed this material fact.
Per contra, Shri S.K. Sharma, learned counsel for the respondent-complainant, has tried to persuade us that the sufferance of heart attack after obtaining the mediclaim policy does not fall under the exclusion clause. His argument is that the respondent-complainant was not explained the terms of the policy and further that the policy containing the terms were conveyed to him after a period of two months from the date of the proposal and, therefore, the petitioner-Insurance Company cannot rely on the terms of the policy which was not in the knowledge of the respondent-complainant at the time he suffered the heart attack. He further submits that since the respondent-complainant in the proposal form had clearly stated that he had a previous history of diabetes, he cannot be accused of suppression of material fact as the petitioner-Insurance Company had issued the policy with the full knowledge that he was a diabetic.
We are afraid, the argument advanced by the learned counsel for the respondent-complainant would not cut across the admitted facts that the respondent-complainant suffered a heart attack and had a history of Diabetes Mellitus and hypertension. It would be too much of a coincidence to argue that within a week of the respondent-complainant taking the policy he had a sudden heart attack and from the available records we cannot but hold that he had a past history, which was not disclosed for reasons best known to him.
It is by now well settled that principle of insurance is fundamental to utmost good faith which must be observed by the contracting parties and good faith forbids either party from non-disclosure of the fact which the parties know and either of the parties have a duty to disclose all material facts in their knowledge.
Insofar as the contention of the learned counsel for the respondent-complainant with regard to delayed receipt of the policy document is concerned, the respondent-complainant being a literate person it was expected of him to have ascertained the terms of the policy before signing the proposal form, specially when it was a case of obtaining a mediclaim policy and viewed in the context of an attempt to suppress the material fact, the delay on the part of the petitioner-Insurance Company in sending the policy document, though deserves to be deprecated, will, however, not come to the rescue of the respondent-complainant and on the facts of the case the reliance of the learned counsel for the respondent-complainant on the judgment of Honble Supreme Court in the case of Modern Insulators Limited Vs. Oriental Insurance Co. Ltd. [2000 CTJ 169 (Supreme Court)(CP) is misplaced.
In view of the above discussion, the revision petition deserves to succeed and is allowed. The order of the State Commission is set aside. However, under the facts and circumstances of the case, there will be no order as to cost.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(S.K. NAIK) MEMBER Mukesh