National Consumer Disputes Redressal
United India Insurance Company Ltd, vs Dharam Dev Verma on 5 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 447 OF 2011 ( I. A. No. 1 of 2011 for Stay) (I.A. No. 2 of 2011 for Condonation of Delay) (From order dated 9.9.2010 in Appeal No.664 of 2007 of the State Consumer Disputes Redressal Commission, Punjab) United India Insurance Company Ltd, Through its duly Constituted attorney, Manager, Registered Office at Delhi Regional Office-I, 8th Floor, Kanchenjunga Bldg., 18, Barakhamba Road, New Delhi- 110001 Petitioner Versus Dharam Dev Verma S/o Sh. Harkaram Verma R/o Jail Road, Near Punjab National Bank, Bassi Pathana-140412 Dist. Fatehgarh Sahib, Punjab. Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Abhishek Kumar, Advocate with Mr. Purit Vinay, Advocate For the Respondent : In person Pronounced on: 5th April , 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 09.09.2010, passed by State Consumer Disputes Redressal Commission, Punjab (for short, State Commission) in First Appeal No. 664 of 2007.
2. Brief facts are that respondent/complainant filed complaint stating that he alongwith his wife got insured themselves for Rs.2 lacs each for mediclaim policy issued by petitioner/o.p. and paid a sum of Rs.14,078/- as premium. They were issued insurance policy valid from 13.6.2005 to 12.6.2006. Respondent had been renewing the policy since 2004 and paid the necessary premium and cash card was also given by the petitioner in case of emergency.
3. It is further stated that respondent had some ailment for which he remained admitted in P.G.I., Chandigarh from 15.4.2006 to 17.4.2006. Since, he was required to undergo bye-pass surgery, for that purpose he was admitted in Escorts Heart Institute, Delhi from 4.5.2006 to 19.5.2006. After discharge from there, he filed claim for medical expenses to the tune of Rs. 2,44,419.33p. His claim was repudiated on the ground that he has taken some treatment in the year 1994. It is further stated that respondent was only checked in 1994, but no such heart problem was disclosed by the Doctors at that time and was discharged by giving medicines. The repudiation of the claim by the petitioner is deficiency in service and he is entitled to medical expenses incurred, compensation for harassment and costs etc.
4. Petitioner in its written statement admitted that medi-claim policy was issued in favour of the respondent for the period 13.6.2005 to 12.6.2006 for a sum of Rs.2 lacs. On receipt of the claim of the respondent, petitioner got investigated the case from T.P.A. M/s Family Health Plan, Chandigarh, which found that respondent was having pre-existing disease and was suffering from C.A.D. since 1994. Since, policy was issued in the year 2004, the claim has been rightly repudiated.
5. District Consumer Disputes Redressal Forum, Fatehgarh Sahib (for short, District Forum) vide order dated 20.3.2007 accepted the complaint and directed the petitioner to make the payment of Rs.2,44,419.33p with 9% interest from the date of repudiation of the claim till realization. Petitioner was also directed to make payment of Rs.20,000/-as compensation for mental agony and harassment and Rs.1,000/- as costs.
6. Being aggrieved by the order of the District Forum, petitioner filed appeal before the State Commission which modified the order of District Forum observing as under ;
In view of the above discussion and the fact that the insurance company has not led any evidence to prove that the complainant was suffering from pre-existing disease at the time of taking the mediclaim policy, the complainant is entitled to claim the amount of the policy alongwith interest and costs. However, the order of the learned District Forum requires little modification and the amount of Rs. 2,44,419.33p is reduced to Rs.2 lacs only and the order for payment of compensation is set-aside because the interest is awarded to the respondent. The remaining order of the learned District Forum is upheld but for the above modification in the order under appeal. Accordingly, the appeal is disposed of. No order as to costs.
7. Not satisfied with the order of the State Commission, petitioner has filed this present revision. Along with it, an application seeking condonation of delay of 18 days has also been filed. However, as per office noting, there is delay of 50 days.
8. We have heard the learned counsel for the petitioner as well as respondent who has argued his case in person and has also filed written arguments.
9. As far as application for condonation of delay is concerned, for the reasons mentioned in the application, the same is allowed and delay stands condoned.
10. Now coming to the merits of the case, it is the case of petitioner that, respondent at the time of taking mediclaim policy had intentionally concealed about the pre-existing disease, which amount to non disclosure of the material facts. Thus, claim of respondent was rightly repudiated. In support, counsel for petitioner has relied upon the following judgments;
(i) Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. (2010) ACJ 265 (SC) and
(ii) Shanti Lal Swaroopchand Soni Vs. New India Assurance Company Ltd. III (2008) CPJ, 198(NC)
11. On the other hand, respondent contended that he is having Mediclaim policy continuously since 1995, that is, for more than four years. As per new amendment, if nothing happens within four years after taking the policy, the petitioner-Insurance Company cannot take benefit of pre-existing disease clause. Thus, it cannot be said that he has suppressed the pre-existing disease. Moreover, there are concurrent findings of facts given by the fora below and there is no error in their order.
12. Respondent in para no. 8 of his complaint has averred;
That the Complainant was only checked in 1994. But no such heart problem was disclosed by the Doctors at that time. And he was discharged by giving some medicines.
13. Thus, respondent in its complaint himself has admitted that he had undergone check up in the year 1994. However, no record to this effect has been placed on record nor respondent has stated as to what was the reason for this check up.
14. Case of petitioner is also that, in the year 1994 respondent was found suffering from C.A.D. Thus, as per respondents own case, he had undergone check up in the year 1994, but had not disclosed these facts to the petitioner, at the time of taking of mediclaim policy.
15. In Satwant Kaur Sandhu case (Supra), Honble Supreme Court has held ;
There is no dispute that Section 45 of the Insurance Act, 1938 (for short the Act), which places restrictions on the right of the insurer to call in question a life insurance policy on the ground of mis-statement after a particular period, has no application on facts at hand, inasmuch as the said provision applies only in a case of life insurance policy. The present case relates to a mediclaim policy, which is entirely different from a life insurance policy. A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment.
16. From the totality of the facts and circumstances brought on record, it would appear that petitioner had suffered certain ailment in the year 1994 but did not disclose about the disease at the time of taking the mediclaim policy in question. Contract of insurance is based on utmost bonafide and faith which in our opinion, respondent has not stood up at the time of taking of policy. The fact remains that respondent has suppressed material facts in regard to his pre-existing ailments at the time of taking of policy and thus has not approached the Consumer Forum with clean hands.
17. Moreover, respondent has not placed on record the so called amendment Clause as averred by him in its written arguments, that if the policy remains in existence for four years continuously, then Clause with regard to pre-existing disease will have no force. In view of the matter, we are of the opinion that the petitioner-Insurance Company was justified in repudiating the claim of the respondent. Hence, we hold that both the fora below have committed an error in allowing the complaint of the respondent. The order passed by the State Commission under these circumstances, cannot be sustained. Accordingly, we accept the present revision petition and set aside the impugned order passed by the State Commission as well as that of the District forum and dismiss the complaint of the respondent.
18. No order as to cost.
..J (V.B. GUPTA) ( PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB