State Consumer Disputes Redressal Commission
United India Insurance Company ... vs Usha Sikand on 12 January, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.615 of 2009.
Date of Institution: 30.04.2009.
Date of Decision: 12.01.2011.
United India Insurance Company Limited, 136, Feroze Gandhi Market,
Ludhiana, through its duly Authorized Officer Sh. O.P. Kaunawa, Deputy
Manager.
.....Appellant.
Versus
Usha Sikand wife of Sh. Pritpal Singh, Resident of Ivanue, The Mall,
Kapurthana.
.....Respondent.
First Appeal against the order dated
25.03.2009 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Vinod Gupta, Advocate.
For the respondent : Sh. Sugreev Kapoor, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
United India Insurance Company Limited, appellant (In short "the appellant") has filed this appeal against the order dated 25.03.2009 passed by the learned District Consumer Disputes Redressal Forum, Kapurthala (in short "the District Forum").
2. Facts in brief are that Smt. Usha Sikand, respondent/ complainant (in short, "the respondent") filed a complaint under the Consumer Protection Act, 1986 (in short, "the Act"), pleading that the respondent got a family mediclaim policy for herself and for her husband for a sum of Rs.2,50,000/- and Rs.1,50,000/- respectively and the said policy was valid from 28.03.2008 to 27.03.2009. Cover note bearing no.106529 dated 24.03.2008 was issued. The respondent was earlier also insured with the appellant for the last more than 10 years.
First Appeal No.615 of 2009 2
3. At the time of obtaining the policy, the appellant had satisfied itself about the medical condition of the respondent and after due verification of the medical condition as well as history and after receipt of premium of Rs.17,461/- , issued the cover note to the respondent.
4. On 02.05.2008, the respondent suffered heart attack and she was shifted on 03.05.2008 to Max Hospital, New Delhi, where she remained admitted till 19.05.2008 and open heart surgery was performed in the said hospital. Due intimation was given about the admission as well as ailment of the respondent to the appellant, who forwarded the claim but the appellant vide letter dated 11.09.2008, rejected the claim of the respondent on the ground that it is a case of pre-existing disease and the respondent was suffering from heart disease since 1998 and was also diabetic for the last 20 years and, as such, the claim is not payable.
5. The respondent at the time of obtaining the first policy in the year 1998, has disclosed all the material facts about her health condition and nothing was concealed from the insurance company. At the time of renewal of the policy every year, all the due intimation was supplied to the insurance company. The respondent was hospitalized in the year 2005 and 2006. In the year 2005, the respondent suffered an attack of pancreatitis due to which, she was hospitalized at Max Healthcare Centre, New Delhi on 18.12.2005 and was discharged on 22.12.2005. In the discharge summary which was given to the appellant for reimbursement, it was duly mentioned that the respondent is an old patient of CAD and also diabetic. The respondent remained under the treatment of Max Healthcare Centre till 08.02.2006. She lodged the mediclaim with the appellant and vide cheque dated 29.03.2006, a sum of Rs.54,529/- and vide cheque dated 06.05.2006, a sum of Rs.15,031/- was reimbursed by the insurance company. The appellant had made payment of the claim amount after due verification of the entire medical history of the respondent. In medical record submitted by the respondent, it was duly mentioned that the First Appeal No.615 of 2009 3 respondent is suffering from diabetes and is a known case of type-2 , DM, poorly controlled on DHA, with CAD, HTN and Dyslipidemia. Thus, the appellant had the full knowledge about the physical condition of the respondent. The contention of the appellant that the respondent was suffering from pre-existing disease, is illegal, wrong, void, arbitrary and unfair trade practice adopted just to reject the claim. The rejection of the claim is whimsical and is based on assumptions and presumptions.
6. The respondent has actually spent more than Rs.5.00 lacs on her treatment till date and submitted the bills to the extent of Rs.3,36,146/-, as the sum insured is Rs.2,50,000/- and prayed that the appellant be directed to pay Rs.2,50,000/- along with interest @ 12% p.a. from the date of hospitalization till payment along with Rs.50,000/- as compensation for physical and mental torture and Rs.10,000/- as costs of litigation.
7. In the reply filed on behalf of the appellant, the preliminary objections were taken that no amount of renewals of the earlier insurance could validate the insurance when the insurance was malafide obtained by the respondent and the claim was rightly repudiated. The renewal of the insurance was obtained for a higher sum in view of imminence of arrival of pre-existing disease, coming to the surface and the insurance company rightly repudiated the claim and there is no deficiency in service on their part. Only the civil court can go into the allegations of fraud and bad faith.
8. On merits, it was submitted that the insurance is subject to general principles of insurance, including one of utmost good faith and the terms and conditions laid down in the insurance policy. The insurance was given to the respondent on utmost good faith. The receipt given, the insurance policy issued could not give a cover-up for a propriety to the respondent to conceal the facts with malafides. With the given conditions of health, the respondent was bound to suffer from the off-shoots of ailment to which she had become susceptible. As per the discharge summary of Max First Appeal No.615 of 2009 4 Heart and supported by the record in her possession, it was revealed as follows:-
- IHD since 1998
- Hypertensive 2-3 years
- Diabetic - 20 years
- Chronic Pancreatitis for 2 years.
9. The complete record was handed over to the doctor on penal of the insurance company, who after noticing the past history of the respondent i.e. her being a known case of Ischemic Heart disease since 1998/hypertensive for 2-3 years, diabetic for 20 years and chronic pancreatitis for 2 years, dyspnea for 15 days etc. ultimately landed in one of the hospitals at New Delhi, incurred on her treatment Rs.4,76,617/- out of which, the burden being allegedly thrown malafidely on the insurance company to the extent of Rs.2.50 lacs. The respondent thereby self exposed malafides in getting the insurance and the doctor on penal, recommended repudiation of the claim of the respondent which was accordingly repudiated.
10. It is always the insured, who is to prove and show his utmost good faith for insurance irrespective of the insurance company renewing the policy. The moment it is found that the insurance is obtained in bad faith, the insurance becomes voidable, as is in the present case. The increase in the insurance amount from Rs.1.50 lacs to Rs.2.50 lacs is one of the strong circumstance which goes to establish clearly her malafides. It was admitted that some sums were paid but the same lends no validation to the present claim. Other allegations were denied and it was prayed that the complaint may be dismissed.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that previously on 29.03.2006 and 06.05.2005, the appellant First Appeal No.615 of 2009 5 entertained two mediclaims of the respondent and in those two claims, entire medical history of the respondent was mentioned. Earlier in the year 2000 to 2004, mediclaim insurance policy was issued and the appellant, now, cannot claim that that they were not having the complete knowledge about the physical health of the respondent, and allowed the complaint, directing the appellant to pay a sum of Rs.2,50,000/- i.e. the sum insured under the policy in question along with interest @ 9% p.a. from 11.09.2008 when the claim of the respondent was rejected till realization and to pay Rs.4000/- as costs of litigation.
13. Aggrieved by the impugned order dated 25.03.2009, the appellant insurance company has come up in appeal.
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
15. Learned counsel for the appellant insurance company contended that the respondent never disclosed about her heart ailment and she is guilty of suppressing and concealing the true facts and it is a case of pre-existing disease. Earlier, the disease was not pertaining to the heart and it was regarding pancreatitis etc., but the respondent never disclosed that she was suffering from any heart ailment and the District Forum has not considered this aspect. The opinion of the doctor on the penal of the insurance company, has been ignored without assigning any reason. The appeal may be accepted and impugned order may be set aside.
16. On the other hand on behalf of the respondent, it was argued that for the last 10 years continuously, the insurance policy is taken and premium is regularly paid. Earlier also, she was admitted in the hospital in the year 2005 and 2006 and the entire medical history was submitted and the insurance company paid the claim amount. The insurance company was having the complete knowledge about the medical condition and health of the First Appeal No.615 of 2009 6 respondent and the insurance cover/policy was issued after verification of the medical record. The respondent spent Rs.5.00 lacs on her treatment, but has claimed only the lesser amount, as the insurance was only for Rs.2.50 lacs and the District Forum has rightly awarded the same and the appeal being without any merit, may be dismissed.
17. We have considered the submissions made by the learned counsel for the parties.
18. Dr. Manoj Sachdeva of Adarsh Hospital vide Ex.C2, wrote to the Senior Divisional Manager of the appellant insurance company about the medical history of the respondent, including the detail of the period of insurance from 28.03.2008 to 27.03.2009 and concluded that the sum assured for self (respondent) was increased from Rs.1.50 lacs to Rs.2.50 lacs w.e.f. 28.03.2007 i.e. for last two years, whereas the sum assured for spouse (Sh. Pritpal Singh) remains the same and patient is a known case of Ischaemic Heart disease since 1998 and was on treatment for that since then and the claim is not admissible. This document has been relied upon by the respondent and the respondent has also relied opon other documents from Ex.C1 to Ex.C141. The insurance company has not examined the said Dr. Manoj Sachdeva, nor has brought on record any document, proving the existence of any pre-existing disease. Ex.R1 is the affidavit of Sh. Satnam Singh Basra, A.M. of the appellant insurance company. Ex.R2 is the discharge summary. Ex.R3 is complete summary and Ex.R4 is individual mediclaim policy. Ex.R2 or Ex.R3 nowhere disclose that the respondent was suffering from any heart ailment. Whereas, the documents filed by the respondent clearly indicate that the respondent was a patient of chronic pancreatitis and she was taking treatment for the same. Documents Ex.C99 to Ex.C102 prove this fact. The respondent has disclosed in the proposal form that she is a patient of diabetic for the last many years and the entire medical record was in the knowledge of the appellant, but the appellant never First Appeal No.615 of 2009 7 conducted any test regarding any heart problem nor any such problem came to their notice during the medical examination of the respondent conducted at the time of issuance of the insurance cover notes/policies. The District Forum has rightly passed the order under appeal and there is no ground to interfere in the same. Mere increase in the sum assured from Rs.1.50 lacs to Rs.2.50 lacs, is not sufficient to prove that it was done with malafide intention. The appellant insurance company has failed to prove any pre-existing disease or that any such pre-existing disease was concealed by the respondent.
19. Therefore, there is no merit in the present appeal and the same is dismissed. The impugned order dated 25.03.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
20. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent (complainant) by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
21. Remaining amount shall be paid by the appellant to the respondent within two months from the receipt of copy of the order.
22. The arguments in this appeal were heard on 07.01.2011 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member January 12, 2011.
(Gurmeet Singh)