Delhi District Court
Dharam Pal Tanwar vs Claims Department on 26 July, 2022
IN THE COURT OF SH. AVIRAL SHUKLA, CIVIL JUDGE-01, SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI
Presiding Officer: Sh. Aviral Shukla, DJS
Suit No.1084/17
In the matter of:-
Dharam Pal Tanwar,
131, DDA Auto Complex,
Zam Rudpur,
Delhi-110048 .....Plaintiff
Vs
1. Claims Department
Star Health and Allied Insurance Co., Ltd
# 1, New Tank Street,
Valluvar Kottam High Road
Nungamakkam, Chennai-600034, TN
2. Ms. Shilpa Kohli
Authorized Signatory
Star Health and Allied Insurance Co. Ltd.
Unit No.23, GRA Ground Floor,
Shipra Krishna Azure,
Near Kaushambi Metro Station (Gate No.2)
Near Wave Cinemas, Kaushambi
Ghaziabad, UP-201010 ....Defendants
Date of institution of Suit :25.09.2017
Date on which Judgment was reserved :26.07.2022
Date of pronouncement of the Judgment :26.07.2022
JUDGEMENT
1. The Case 1.1. The plaintiff has instituted the present suit against the defendants for recovery of a sum of Rs. 1,13,844/- along with pendente-lite interest @ 18% per annum from 19.02.2017 till the date of realization and costs of the suit.
Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:50:55 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 1 of 12 2. Plaintiff's Case
2.1. Pleaded case of the plaintiff is that the plaintiff has taken a 'Senior Citizen Red Carpet Insurance Policy' for a sum insured of Rs. 2,00,000/- from the defendant company on 13.04.2012. The said policy was especially for old aged senior persons covering the aging problems of senior citizens. It is stated that the premium amount of Rs. 9,500/- was paid by the plaintiff by way of cheque no. 001054 dated 06.04.2012 drawn on Allahabad Bank. It is stated that the plaintiff was not suffering from any ailment at the time of inception of health insurance policy on 13.04.2012. It is stated that the medical check up of the plaintiff was also done by the concerned doctor on the panel / doctors attached with the defendant company. It has further been stated that there is no concealment of any disease of the plaintiff and the plaintiff was not suffering from any disease. The said policy has been renewed by the plaintiff from time to time. It is stated that from 13.04.2012 to 31.12.2016, no medical claim had been sought by the plaintiff from the defendant and the plaintiff had been paying the premiums regularly.
2.2. It is stated that on 02.01.2017, plaintiff was admitted in the National Heart Hospital, New Delhi on account of certain sudden medical issues due to old age. After the admission of the plaintiff, family members of the plaintiff informed the defendant about such admission and treatment. Thereafter, an agent of the defendant company visited the hospital for verification. It is stated that on 07.01.2017, the plaintiff was discharged from the hospital and was advised for complete bed rest by the doctor. It is alleged that the defendant company, in order to avoid the liability, denied the cash authorization on the false grounds of non disclosure of Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:51:02 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 2 of 12 material facts. It has been stated that the plaintiff himself paid the hospitalization charges as no help was given by the defendant company. Thereafter, plaintiff filed a claim for his hospitalization bills from the defendant company for an amount of Rs. 1,13,844/-. It is stated that on 16.02.2017, the defendants instead of settling the claim of the plaintiff rejected the same by false allegation of non disclosure of 'PED- Coronary Artery Disease and COPD' (about the existence of pre-existing diseases) and also cancelled the policy and returned the last premium amount through DD No. 689539 dated 15.02.2017 for an amount of Rs. 9,682/-. It is averred that plaintiff had paid a total amount of Rs. 47,682/- as premium in the last years. Despite of several telephonic conversations and meeting with the agents of defendant, no positive response was received from the defendant. Thereafter, the plaintiff got served a legal notice dated 26.03.2017, in response to which a letter dated 17.04.2017 was received from the defendant. It is stated that in their reply, the defendants were keen to settle the claim of the plaintiff and asked the plaintiff for some other relevant documents. It is stated that the plaintiff submitted that relevant documents is consonance with the reply of the defendants in order to settle the claim. However, no reply was received from the defendant and claim of the plaintiff remained unsettled. Hence, the plaintiff has filed the present suit for recovery of Rs. 1,13,844/- from the defendant alongwith interest.
3. Upon service of summons of the suit, the defendant contested the case and filed the written statement.
4. Defendants' Case 4.1. The defendant no.1 filed their written statement and contended that the Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:51:08 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 3 of 12 plaintiff has suppressed true facts from the court. It is stated that plaintiff availed the policy bearing no. P/161112/01/2013/000217 for the period from 13.04.2012 to 12.04.2013 for the insured sum of Rs. 2,00,000/-. The said policy was renewed from time to time. It is stated that the plaintiff was admitted at the National Heart Institute on 02.01.2017 for treatment of 'CAD' and raised a request for pre-authorization for cashless authorization vide claim no. CLI/2017/161112/0366375. Upon secruitny of documents submitted by the said hospital, it was observed from the Cardiac Clinic Card dated 01.07.2010 that the plaintiff is a known case of 'CAD' and 'COPD' prior to the policy inception. Hence, the cashless authorization was denied on grounds of non-disclosure of material facts and the same was communicated to the plaintiff on 07.01.2017.
4.2. It is further stated that the treating hospital had submitted the bills and discharge summary for further review of the claim. Upon perusal of the claim record, the defendant requested for forwarding of treatment record of 2010 (pertaining to COPD etc), however no document was received and the cashless claim was denied. It is stated that Clause 13 of the policy provides that the defendant may cancel the policy on grounds of non- cooperation, misrepresentation / non disclosure of material fact as declared in the proposal form / at the time of the claim. Hence, the policy stands cancelled from 19.02.2017 due to non disclosure. In consequence, a refund of preminum amount of Rs. 9,682/- was allowed to the plaintiff.
4.3. It is stated that the plaintiff submitted certain claim documents for reimbursement of medical expenses in the interim. Upon scruitny, it was further observed that as per the discharge summary, the plaintiff was admitted with past history of 'Diabetes Mellitus with Neuropathy, Acute I Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:51:26 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 4 of 12 VF, CAD- old AWMI, COPD, Chronic smoker'. The defendant thus called for the following documents- (i) all hospitalization records for COPD and CAD done in 2010 and onwards; (ii) Letter from treating doctor stating whether any procedure was done for CAD; (iii) all investigation including X-ray, Echo PFT and; (iv) hospital final bill in original with detailed break-up. It is lastly submitted that after repeated reminders dated 09.02.2017, 24.02.2017 and 11.03.2017, the plaintiff did not submit the required documents which were mandatory to process the claim. It is accordingly prayed that the present suit be dismissed.
5. Upon completion of pleadings, the following issues were identified and framed vide order dated 21.09.2019 by this Court:-
(i) Whether the plaintiff is entitled to recovery of an amount of Rs.1,13,844/-in favour of the plaintiff and against the defendant? OPP.
(ii) Whether the plaintiff is entitled to interest if so, at what rate and for what period?OPP.
(iii) Relief. 6. Plaintiff's evidence
6.1. To prove its case, plaintiff examined himself as PW-1 as the sole witness and filed evidence by way of affidavit which is Ex.PW1/A, and relied upon the following documents:-
i) Copy of insurance policy no.P/161112/01/2013/000217 Ex.PW1/1
ii) Copy of Policy no.P/161112/01/2014/000518 Ex.PW1/2
iii) Copy of Policy no.P/161112/01/2015/001620 Ex.PW1/3
iv) Copy of Policy no.P/161112/01/2016/002043 Ex.PW1/4
v) Copy of Policy no.P/161112/01/2017/002998 Ex.PW1/5
vi) Legal notice dated 26.03.2017 alongwith tracking report receipt Ex.PW1/7
vii) Reply to legal notice dated 17.04.2017 Ex.PW1/8
viii) Letter dated 06.05.2017 alongwith tracking report Ex.PW1/9 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:52:23 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 5 of 12
6.2. PW-1 was duly cross examined on behalf of defendant.
7. Defendants' evidence 7.1. Despite opportunities being granted to the defendant, defendant did not lead any defence evidence. Vide separately recorded statement of counsel for defendant, defendant's evidence was closed.
8. Final arguments 8.1. Final arguments were heard from counsels appearing on behalf of both the parties. Ld counsel for plaintiff has reiterated in the final arguments that the plaintiff was not suffering from any disease at the time of inception of the policy. Ld counsel has invited the attention of this court to paragraph 30 of the written statement wherein the defendant has stated that maximum quantum of liability as Rs. 50,084/- without conceding that the company is liable to pay the claim in terms of the contract. Lastly it has been argued that declaration as to medical history was filled up by the agent of defendant no.1 and not by the plaintiff. It has been argued that the plaintiff was not aware of what was filled in the form. Counsel for plaintiff relied upon the exhibited documents and prayed for a decree of Rs. 1,13,844/- alongwith interest.
8.2. On the other hand, counsel for defendant has invited the attention of this court to the inconsistencies between the statement made by the plaintiff with respect to his health condition in the plaint and the declaration vis-a- vis the medical records of the plaintiff. It has been argued that this is a clear case of misrepresentation and non disclosure of material facts which entitles the defendant to cancel the policy. It is accordingly prayed that the case of the plaintiff be dismissed.
Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:52:33 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 6 of 12
9. Heard the arguments advanced by the Ld. counsels for both the parties.This Court has carefully perused the evidence on record in light of the pleadings of the parties and considered the oral submissions advanced by Ld. counsels for parties.
10. The issues are decided as under:-
10.1. Issue no. (i) Whether the plaintiff is entitled to recovery of an amount of Rs.1,13,844/-in favour of the plaintiff and against the defendant?
OPP.
10.1.1. The onus to prove this issue was upon the plaintiff.
10.1.2. At the outset, it is noted that the present suit was originally filed by the plaintiff against two defendants, viz., The Claims Department, Star Health & Allied Insurance Company Limited (defendant no.1) and Ms. Shilpa Kohli, i.e. authorized signatory (defendant no.2). It is noted that the defence of defendant no.2 was struck off vide order dated 21.09.2019. However, it is also noted that no specific averments have been made in the plaint which may impute separate / individual liability on defendant no.2. No separate evidence has been led by the plaintiff with respect to defendant no.2. Accordingly, the appreciation of evidence and findings below are given with reference to defendant no.1 only and references to 'defendant' shall mean reference to defendant no.1 only.
10.1.3. The plaintiff has relied upon documents that have been exhibited from Ex.PW1/1 to Ex.PW1/9 for the purpose of proving his claim. The first exhibit Ex.PW1/1 is the first policy bearing no.
P/161112/01/2013/000217 that was issued on 13.04.2012. A bare perusal of the aforesaid first policy reveals that pre-existing diseases as on the Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:52:39 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 7 of 12 date of commencement of first year policy has been provided as 'NIL' for both 'preceding 12 months' and 'beyond preceding 12 months periods'. It is further noted that the insurance under the policy is subject to the conditions, clauses, warranties and exclusions attached with the policy. An 'acknowledgment' has been annexed with the policy in which the following details were filled in:-
Medical History (please give details A mere dash is not No sufficient). Has the proposed person /s suffered from any disease /illness irrespective to whether hospitalised or not or sustained any accidents. If yes give details.
The aforesaid acknowledgment has been duly signed by the plaintiff 'Dharampal Tanwar'.
10.1.4. The said first policy has been appended with a set of 'terms', 'conditions', 'exclusions' and 'definitions'. In the definitions section, the term 'pre-
existing disease' has been defined to mean:-
"Pre Existing Disease means any condition, ailment or injury or related condition (s) for which the insured person had signs or symptoms. and /or were diagnosed and / or, received medical advice / treatment within 48 months prior to the inception of the insured persons first policy within the company"
In accordance with the above, an insured person must have the signs of, or symptoms of, or diagnosed with, or received medical advice for, or treatment with respect to such a disease. It is also noted that under the 'Exclusions Section', it has been expressly provided that the insurance company shall not be liable to make any payments under the policy in respect of any expense incurred by the insured person in respect of all pre-existing diseases as may have been existing or suffered by the insured person for which treatment or advice was recommended or received Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:52:46 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 8 of 12 during the immediately preceding 12 months from the date of proposal. A further reading of the same section also reveals that the company is not liable to make any payments in respect of 50% of each and every claim arising out of all pre-existing diseases as defined and 30% in case of all other claims which are to be borne by the insured.
10.1.5. It is also noted that clause no.10 of the 'Conditions Section' provides for 'cancellation' of the policy by the company on grounds of misrepresentation, fraud and non disclosure of material fact. The defendant has primarily relied upon the clause to deny the claim of the plaintiff and for cancellation of his policy. It has been contented that the plaintiff deliberately concealed the factum of his pre- existing diseases and thus did not disclose a material fact.
10.1.6. A further perusal of the plaintiff documents shows that the policy was renewed from time to time viz., on 24.04.2013 [Ex.PW1/2 (colly)], on 19.05.2014 [Ex.PW1/3 (colly)], on 21.05.2015 [Ex.PW1/4 (colly)] and on 31.05.2016 [Ex.PW1/5 (colly)]. It is noted that in all the aforesaid policies, the details of 'pre-existing diseases' have been been mentioned as 'NIL'. The plaintiff has further relied upon the legal notice dated 26.03.2017 [Ex.PW1/7 (colly)], whereby the suit amount was claimed by the plaintiff. The plaintiff has lastly relied upon letter dated 06.05.2017 [Ex.PW1/9 (colly)]. It is noted that the plaintiff submitted the requisite documents (discharge summaries dated 19.02.2011, 25.10.2016, 07.01.2017 etc) to the defendant and also expressly denied the allegation of concealment of any pre -existing disease.
10.1.7. In view of the documents led in evidence by the plaintiff, it can be safely Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:52:51 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 9 of 12 concluded that there was a valid execution of an insurance contract. The plaintiff opted for insurance for the purpose of covering the risks associated with old age related diseases. The policy was renewed from time to time and premium was duly paid. When the plaintiff was hospitalized in the year 2017, the claim was raised by the plaintiff, but the same was denied by the defendant. Since the plaintiff has been able to lead evidence on his version of the case, it is now upon the defendant to prove their case with respect to the 'exclusions' as provided in the policy and also on the factum of 'concealment of material facts' by the plaintiff.
10.1.8. After the closure of plaintiff's evidence, several opportunities were granted to the defendant to lead the defendant's evidence. However, the defendant chose not to lead any evidence and opportunity was closed upon request of the counsel.
10.1.9. The only documents that have been relied upon by the defendant are the documents that were put before PW-1 in his cross examination. The documents are:- Medical report prepared by the National Heart Institute (Ex.PW1/DX1), Cardiac Clinic Card of National Heart Institute (Ex.PW1/DX2) and Discharge Summary of National Heart Institute dated 25.06.2016 (Ex.PW1/DX3). Perusal of Ex.PW1/DX1 and Ex.PW1/DX2 reveals no clear data or proof with respect to any medical diagnosis of a 'pre-existing disease or condition'. The said documents are illegible and further replete with medical jargon which cannot be deciphered. No testimony has been led on behalf of any medical practitioner/ doctor for the purpose of proving the documents. The only document where some semblance of 'past history' can be seen is Ex.PW1/DW3. However, even a reading of the same does not reveal the relevant time period during which Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:53:02 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 10 of 12 such pre-existing conditions subsisted. Therefore, the court is not inclined to rely upon any of the aforesaid documents, moreso, when the same have not been duly proved by the defendant. The plaintiff has only admitted the fact that the said documents pertain to him. There is no admission in the cross examination with respect to any pre-existing disease or condition. Further, there is nothing in the cross examination which shows any inconsistency in the version of the plaintiff.
10.1.10. In view of the analysis and reasons stated above, it becomes evident that the plaintiff has been able to establish his case on the balance of probabilities. On the same balance, the defendant no.1 has been unable to prove their version of the case as no independent evidence has been led by the defendant and nothing could be proved during cross examination as well. Accordingly, the plaintiff is held entitled to recover the amount of Rs. 1,13,844/- from defendant no.1 being the rightful claim towards hospitalization bills of the plaintiff. This issue is accordingly decided in favour of the plaintiff and against defendant no.1.
10.2. Issue no. (ii) Whether the plaintiff is entitled to interest if so, at what rate and for what period?OPP.
10.2.1. The onus to prove this issue was upon the plaintiff.
10.2.2. Since this court has already adjudicated that the plaintiff is entitled to recover the suit amount from defendant no.1, there is merit in the prayer for interest. The plaintiff has claimed an interest of 18% per annum from the date of cancellation of policy i.e 19.02.2017 till the date of realization. The aforesaid interest is excessive in the facts and circumstances of the present case. The just claim of plaintiff would be Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:53:10 +0530 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 11 of 12 served by grant of interest @10% p.a. from 19.02.2017 till the date of realization of the suit amount.
11. Relief 11.1. In view of the aforesaid appreciation and findings, the present suit is decreed in favour of the plaintiff and against defendant no.1. The plaintiff is held entitled to recover an amount of Rs. 1,13,844/- alongwith interest at the rate of 10% per annum from 19.02.2017 till the date of realization of the suit amount.
11.2. The plaintiff is also awarded the costs of the suit.
12. Decree sheet be prepared accordingly.
13. File be consigned to Record-Room after due compliance.
Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2022.07.26 18:53:15 +0530 Pronounced in the (Aviral Shukla) Open Court on 26.07.2022 Civil Judge-01, South East, Saket Court, New Delhi. 26.07.2022 CS No. 1084/17 Dharampal Tanwar Vs. Claims Department Page 12 of 12