National Consumer Disputes Redressal
Sushil Kumar Jain vs United India Insurance Co.Ltd. on 4 November, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2950 OF 2007 (From the order dated 9.3.07 in Appeal No.255/05 of the State Commission, Haryana) Sushil Kumar Jain Petitioner Versus United India Insurance Co. Ltd. Respondent BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For the Petitioner : Mr.Devi Dayal Verma, Advocate with Mr.Sushil Kumar Jain, Petitioner in-person. For the Respondent : Mr.K.L. Nandwani, Advocate Pronounced on 4th November, 2011 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by Sushil Kumar Jain (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the State Commission) in Appeal No.255/2005 wherein the United India Insurance Co. Ltd. & Ors. were Respondents.
In his complaint before the District forum, Petitioner had submitted that and he along with his family members have got themselves insured with the Respondent/Insurance Company under the Group Mediclaim Insurance Cover from 28.09.2001 to 27.09.2002 for which a premium of Rs.8,870/- was paid. Under this policy, Respondent/Insurance Company undertook to reimburse any medical expenses incurred in respect of any medical treatment which insurees may have to undergo during the validity of the policy.
Respondent was detected with a heart problem and was treated at Mukat Hospital, Chandigarh and Fortis Heart Institute at Mohali and he spent Rs.1,32,335/- for his treatment in the above two hospitals. He, therefore, lodged a claim with the Respondent/Insurance Company. However, the Respondent/Insurance Company cancelled the policy by citing that Petitioner had breached utmost good faith by suppressing material facts about his previous diseases. Petitioner denied this contention of the Respondent and therefore, filed a complaint before the District Forum on grounds of deficiency in service and requested that the Respondent/Insurance Company be directed to pay the Petitioner, Rs.1,32,335/- towards medical expenses incurred by him with interest @ 15% per annum and Rs.3 lakhs as compensation for mental agony and harassment beside litigation cost.
Respondent/Insurance Company on the other hand stated that the policy was rightly cancelled because the Petitioner in the insurance proposal form had suppressed material facts regarding his health by not stating in the Proposal Form that he had been suffering from Diabetes Mellitus, hypertension and was a heavy smoker.
These facts came to light in the discharge summary from the two hospitals where he undertook treatment for which he had filed the present claim.
The District Forum after hearing the parties and considering the evidence on record and relying on several judgments including of the Apex Court in New India Insurance Co.Ltd.
Vs. H.J.S.Bhatia CLT 2004(I) 489, allowed the complaint by observing that the Respondent had not been able to prove beyond reasonable doubt that the Petitioner had suppressed any material fact pertaining to his previous medical condition and even the medical expert who examined the Petitioner prior to his taking the mediclaim policy, had not indicated that the Petitioner from any diseases. Thus, the claim was repudiated by the Respondent/Insurance Company on false and fictitious grounds. District Forum, therefore, directed the Respondent to pay the Petitioner, Rs.1,32,335/- on account of medical expenses incurred by him on his treatment with interest @ 10% from the date of repudiation of claim till realization, Rs.1,000/- as compensation for mental agony and harassment and Rs.500/- as litigation costs.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the same by stating that as per the documents produced by the Respondent/Insurance Company from Mukat Hospital and Fortis Hospital, it was established that the history of his past ailments was furnished by the Petitioner himself and the fact of his pre-existing diseases was also established from the investigation report of Capt.A.N.Chopra, the investigator appointed by the Respondent. Therefore, even though Respondent was not able to file any other evidence including documents with regard to the treatment which the Petitioner may have undergone for his pre-existing diseases, since Petitioner himself had given facts pertaining to these diseases, it was sufficient to conclude that the Petitioner was guilty of suppressing material information in the proposal form of his mediclaim policy. The State Commission also observed that the judgment cited by the District Forum are not relevant in the present case and instead relied on other judgments including of this Commission in LIC Vs. Kishan Chander Sharma (R.P.No.1936 of 1999 decided on 23.01.2006) wherein the plea for non-filing of affidavit and non-examination of treating doctor was refuted because complainant himself had admitted the facts of his previous medical treatment.
Hence, the present revision petition.
Counsel for both parties made oral submissions. Counsel for Petitioner stated that in the first instance, the Fora below had failed to take note of the fact that the Respondent had only sent the cover-note without annexing the Proposal Form to the Petitioner at the time of his taking the mediclaim policy and the Petitioners signature were taken on a blank proposal form only at the time of investigation of the medical claim. These facts were confirmed by the Respondents own Investigator, Capt.A.N.Chopra, who recorded as follows:
The Development Officer in his overdrive have issued the above mediclaim insurance cover to Shri Sushil Kumar Jain without obtaining the proposal form in the first instance. This fact was made abundantly clear vide Branch Managers telephonic confirmation made to Divisional Office on 06.02.2002. This fact was also confirmed by me when the relevant docket file was rummaged in my presence. Its sudden emergence on my seeking reply to my questionnaire from the concerned Development Officer is a serious pointer to the tampering and fabrication of record to fill up such lacunas intentionally and connivedly left out.
Counsel for Petitioner further stated that Petitioners signatures were taken on a blank insurance proposal form by the officers of the Respondent/Insurance Company by taking the plea to him that it would help in quick settlement of the claim and the columns Not Applicable were filled up by the Development Officer of the Respondent/Insurance Company. Counsel for Petitioner further stated that there was no evidence that the Petitioner has suffered from any pre-existing diseases and this is confirmed by the fact that during the medical examination prior to his taking the mediclaim policy, Petitioner was not detected with any diseases.
Further, Respondent/Insurance Company have not been able to produce any documentary or medical evidence of his having taken treatment for any of these ailments prior to his admission in two hospitals on 17.04.2002 and 21.04.2002 respectively. Counsel for Petitioner contended that even these documents could not be relied on because they were not proved by any affidavit of the concerned doctors nor did any of the doctors appear in evidence before the Fora below. Therefore, his revision petition merits acceptance.
Counsel for Respondent/Insurance on the other hand denied that the proposal form was not issued along with cover-note and stated that the investigation report clearly indicated that the Petitioner had suffered from serious pre-existing diseases and that these were also confirmed in the discharge summaries of the two reputed hospitals where the Petitioner was admitted for his treatment. Further, there is certificate of Dr.Alok Sharma, a Cardiologist and Chest Specialist confirming the existence of these diseases. Since, insurance is a contract between two parties entered into in utmost good faith by suppressing material facts regarding his medical condition, Petitioner breached this contract and therefore, his medical claim was justifiably repudiated.
We have heard learned counsel for both parties and have gone through the evidence on record.
We find force in the contention of the Petitioner that at the time of taking the medical claim, he had only signed the cover-note because Respondent had not attached the detailed proposal form with this note. This is confirmed by the investigation report of the Investigator appointed by the Respondent/Insurance Company itself. To a pointed question by us to the Counsel for the Respondent, how he could explain this observation of the Investigator, he was unable to give a satisfactory reply.
Therefore, Respondents contention that the Petitioner had suppressed material information pertaining to his health in the proposal form at the time of taking the mediclaim policy cannot be accepted and consequently the Petitioner cannot be held guilty of suppressing any material information in his proposal form which was not even made available to him at the of his taking the mediclaim policy. In fact, we are inclined to believe that the proposal form was never filled up by Petitioner and that his signatures were taken on a blank proposal form specially since Respondents own Investigator has also observed that there appear to have been both tampering and connivance by the officers of the Respondent/Insurance Company.
Respondents contention that the Petitioner had suppressed material facts regarding his pre-existing diseases has been proved by the discharge summaries of the two hospitals wherein Petitioner himself has given his previous medical history, also does not inspire much confidence. In the first place, no affidavit or evidence of the doctors who had prepared these summaries was filed by the Respondent on whom the onus was to prove these facts.
It is also not clear at whose instance these discharge summaries were prepared by the two hospitals and no affidavit has been filed in this connection by any officer of the Respondent/Insurance Company. Production of a document is not the same as proving the document which the Respondent/Insurance Company have been unable to prove in the present case.
Further, Respondent/Insurance Company has not been able to produce any credible evidence including documentary evidence or medical record to show that Petitioner had been treated for pre-existing diseases. If the Petitioner did indeed suffer from serious diseases like diabetes and hypertension, he would have, no doubt, taken treatment for the same. The certificate of Dr.Alok Sharma on whom the Respondent/Insurance Company has relied, cannot be given much credence since his conclusions are based on the case history provided by the Respondent on whose behalf he has given this certificate. Further, he had never examined the Petitioner nor has he filed any affidavit in this connection. For the above reasons, we are of the view that the Respondent/Insurance Company has not been able to prove that the Petitioner had suppressed material facts pertaining to pre-existing diseases and had breached the contract of utmost good faith which resulted in cancellation of his mediclaim.
We, therefore, set aside the order of the State Commission and restore the order of the District Forum. The Respondent/Insurance Company is directed to pay the Petitioner Rs.1,32,335/- on account of medical expenses incurred by him on his treatment with interest @ 10% from the date of repudiation of claim till realization, Rs.1,000/- as compensation for mental agony and harassment and Rs.500/- as litigation costs within six weeks from the date of receipt of this order.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/