State Consumer Disputes Redressal Commission
Universal Sompo General Insurance Co. ... vs Surendra Kumar Sharma on 16 September, 2022
Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022
2014 Vs.
Surendra Kumar Sharma and Anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 26.09.2014
Date of final hearing: 29.08.2022
Date of Pronouncement: 16.09.2022
First Appeal No. 204 / 2014
Universal Sompo General Insurance Co. Ltd.
Through its Authorised Signatory
KLS Tower, Plot No. 94, MIDC Mahape
Navi Mumbai, Maharastra
(Through: Sh. Suresh Gautam, Advocate)
.....Appellant
VERSUS
1. Sh. Surendra Kumar Sharma S/o Sh. Bhullan Singh Sharma
R/o B.S.M. (P.G.), Roorkee, District Haridwar
None for Respondent No. 1
2. Indian Overseas Bank
Branch Railway Road, Roorkee, District Haridwar
Service through its Branch Manager
(Through: Sh. S.P. Kamboj, Advocate)
Respondent No. 2
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been preferred against the judgment and order dated 25.08.2014 passed by the District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in 1 Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022 2014 Vs. Surendra Kumar Sharma and Anr.
consumer complaint No. 389 of 2013 styled as Sh. Surendra Kumar Sharma vs. Universal Sompo General Insurance Ltd. and Anr., wherein and whereby the complaint was allowed.
2. The facts giving rise to the appeal in hand are as such that the complaint was filed by the respondent No. 1 - complainant (in short complainant) for a claim of Rs. 1,36,791/- with interest and damages for Rs. 11,000/- for his treatment charges and Mediclaim Insurance Policy alleging that he took a mediclaim policy for the period of 09.04.2012 to 08.04.2013, which was subsequently renewed. The complainant fell ill on respective date 08.01.2013 to 23.01.2013 and 02.02.2013 to 08.02.2013 and remained under treatment of Himalyan Institute, Ram Nagar, where he incurred Rs. 1,36,791/- during his treatment; he submitted relevant documents and medical bills to the appellant, but the same was not paid, hence, he filed the complaint case.
3. The appellant as opposite party No. 1 in consumer case, filed its written statement, wherein the Mediclaim Policy was admitted, but it was averred that the appellant repudiated the complainant's claim vide its letter dated 13.01.2013 on the ground that the complainant was suffering from pre-existing disease, which was not covered under the exclusion clause of the policy -
under Heading Key Exclusions:-
1) Pre existing disease qualified above.
2) Exclusions (1)(a) Any condition, ailment or injury or related condition(s) for which you have signed symptoms, and / or were diagnosed, and / or received medical advice / treatment, within 48 months to your first policy with us. This exclusion shall be waived if you have been continuously 2 Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022 2014 Vs. Surendra Kumar Sharma and Anr.
insured this insurance cover (IOB Health Care Plus) or a similar medical insurance cover (offered by any insurer under their earlier tie up arrangement with Indian Overseas Bank) for a continuous period minimum 36 months and there had been no claim in during the 36 months period." Hence, the claim be disallowed.
4. The learned District Commission after perusing the record and hearing the arguments allowed the complaint vide order dated 25.08.2014 directing the appellant to pay Rs. 50,000/- (Rupees Fifty Thousand only) to the complainant within one month.
5. On having been aggrieved by the impugned judgment dated 25.08.2014, the present appeal has been preferred before us.
6. We have heard the appellant and respondent No. 2, but the complainant did not appear since a long time, hence, the Commission has passed an order on dated 15.02.2022 directing the respondents to appear on the next date fixed, otherwise the hearing of appeal shall be conducted ex- parte against them in their absence. Since then the complainant never put his appearance in Commission, hence an ex-parte order to proceed the appeal against the complainant - respondent No. 1 was passed on 29.08.2022.
7. As per the grounds of memo, it has been contended by the appellant that the present appeal is against the facts, law and merits of the case, and the learned District Commission has failed to appreciate the evidence on record. The learned District Commission has failed to appreciate that the complainant was suffering from pre-existing disease, which was not 3 Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022 2014 Vs. Surendra Kumar Sharma and Anr.
disclosed before the appellant and as per exclusion clause of the policy, the exclusion shall be waives if the insured had been continuously insured under insurance cover or a similar medical insurance cover for a continuous period minimum 36 months and there had been no claim in during the 36 months period, thereby the complainant has violated the terms and conditions of the policy, therefore, the was no deficiency on the part of the appellant. It is further stated that the complainant did not submit any medical bills in respect of his treatment, hence the claim could not be accepted, but the learned Commission below has committed infirmity and illegality while pursuing the order, hence the appeal is liable to be dismissed.
8. The learned counsel for respondent No. 2 has replied that the main dispute exists between the appellant and the respondent No. 1; the impugned judgment and order needs no inference as it is justified.
9. The main question of consideration before us is whether there had been any breach of any term and condition of the policy or whether the respondent No. 1 has not disclosed about his pre-existing disease before the appellant?
10. It is not disputed that the respondent No. 1 was insured under the policy of appellant at the relevant time. It is not disputed that the respondent No. 1 got admitted in Himalayan Hospital from 08.01.2013 to 23.01.2013 and 02.02.2013 to 08.02.2013 respectively. There is no medical bills available on record regarding the treatment of the respondent No. 1. The District Commission was also of the opinion that the respondent No. 1 has not submitted any medical bill on record regarding his treatment. Thus, it is proved that respondent No. 1 has failed to file his medical bill regarding his treatment in Himalyan Institute.
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Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022
2014 Vs.
Surendra Kumar Sharma and Anr.
11. On record, there is proposal form filled during obtaining policy which bears paper No. 31, which has depicted that in such document, the complainant has not disclosed to have suffered from any pre-existing disease. On the other side, the appellant has submitted documentary evidence during appeal, which is paper No. 30 of the appeal file. The medical paper / prescription note (paper No. 30) dated 16.12.2010 and 27.01.2011 of Kalawati Hospital (front and backside) revealed that the respondent No. 1 was suffering from Chronic Bronchial Asthma since 16.10.2010 and he remained admitted from 01.11.2010 to 07.11.2010 and 16.11.2010 to 02.11.2010 respectively in the Hospital. Accordingly, this paper has supported the version of the appellant that the respondent No. 1 has been suffering from pre-existing disease Chronic Bronchial Asthma, prior to inception of the policy and his treatment paper of Kalatwati Hospital has clearly showed the version of the appellant trustworthy and true; thereby the respondent No. 1 has concealed the true facts about his disease from the appellant and has committed a clear violation of the terms and conditions of the policy. The case of the respondent No. 1 does not come within the exclusion clause, wherein it is provided that the exclusion shall be waived, if the insured have been continuously insured under the insurance cover (IOB Health Care Plus) or a similar Medical Insurance Cover (offered by any other insurance under the earlier tie up arrangement with Indian Overseas Bank) for a continuous period of maximum 36 months and there had been no claim in during the 36 months period.
12. There is no such evidence filed on behalf of the respondent No. 1 that he had been continuously insured under the appellant's insurance policy for a continuous period of maximum 36 months and there had been no claim in such 36 months period.
13. Thus, the respondent No. 1 has failed to prove his case.
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Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022
2014 Vs.
Surendra Kumar Sharma and Anr.
14. In the case of Shri Ram Life Insurance Company vs. K. Viraja, Revision Petition No. 434 of 2017, decided on 15.01.2020, the Hon'ble National Commission has held that insurance contracts are governed by the principle of "UBERRIMA FIDE' and the proposer applying for insurance is expected to correctly furnish all the material information regarding his health, habits, family history, personal medical history, income etc. Policy holder failed to disclose his pre-proposal health ailment of Hypertension. Accordingly, the order of the State Commission was set aside and the complaint was dismissed.
15. The principles as laid down above, are fully applicable.
16. In the above scenario, we are of the definite opinion that the respondent No. 1 has concealed the facts about his pre-proposal health ailment from the appellant - insurance company, thereby the policy holder, respondent No. 1 has breached the terms and conditions of the policy.
17. We also hold that the learned District Commission has wrongly awarded the insured amount to the respondent No. 1 without appreciating the evidence on record and without appreciating the fact that the respondent No. 1 was suffering from disease prior to the insurance and has not disclosed his disease at the time of obtaining policy, thereby the learned District Commission has exceeded its jurisdiction vested in it and has acted upon with the illegality and infirmity, hence, the impugned judgment and order is perverse. Thus, we are inclined to interfere with the impugned judgment.
18. We are, therefore, of the considered view that the appeal is liable to be allowed and the impugned judgment is liable to be set aside.
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Appeal No. 204 of Universal Sompo Gen. Ins. Co. Ltd. 16.09.2022
2014 Vs.
Surendra Kumar Sharma and Anr.
19. Accordingly, the appeal is allowed. Impugned judgment and order dated 25.08.2014 is hereby set aside and the complaint is dismissed. No order as to costs.
20. Statutory amount deposited by the appellant, be released in favour of the appellant.
21. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
22. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 16.09.2022 7