State Consumer Disputes Redressal Commission
Neema Saini vs Icici Lombard Gic Ltd. & Ors on 26 June, 2020
IN THE STATE COMMISSION: DELHI
(Constituted under section 9 of the Consumer Protection Act, 1986)
Date of Hearing:17.06.2020
Date of Decision: 26.06.2020
Complaint No.512/2016
IN THE MATTER OF
NEEMA SAINI
W/o Late Sh. Darambir Saini
(Legal Heir & Nominee of Late Sh. Dharambir Saini)
77, Saini Enclave, I.P. Extension
Part II, Vikas Marg, New Delhi ....Complainant
VERSUS
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
Through its Director
3rd Floor, Narain Manzil,
23, Barakhamba Road,
Connaught Place, Delhi-1 ....Opposite Party No.
1
ICICI BANK LIMITED
Through its Director
Videocon Tower
Jhandewalan, New Delhi-110055
Also At
ICICI Bank Limited
Through its Director
At Land Mark
Race Course Circle
Vadodhara 390007 ....Opposite Party No. 2
HON'BLE SMT. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 1 of 15
Present: Sh. Nikhlesh Jain, AR of the complainant
Sh. Anuj Chauhan, Counsel for the OPs
PER: ANIL SRIVASTAVA, MEMBER
JUDGEMENT
VIA VIDEO CONFERENCING
1. This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been fled by Smt. Neema Saini, W/o Late Sh. Dharambir Saini R/o New Delhi, for short complainant, against ICICI Lombard General Insurance Co. Ltd. and ICICI Bank Ltd., hereinafter referred to as OP-1 and 2 respectively, alleging defciency of service on the part of the OPs, they having repudiated her just and legitimate claim causing untold and avoidable misery to her and praying for the relief as under:-
a. To pay Rs. 75,00,000/- to the complainant along with interest 18% per annum from the date of death of Sh. Dharambir Saini i.e. 25.10.15 to till realisation;
b. To pay Rs. 20 Lakhs as compensation against mental agony pain sufered by the complainant;
c. To award litigation cost of 1,00,000/- to the complainant d. To pass any other order which this Commission may deem fit.
2. Facts of the case necessary for the adjudication of the complaint are these.
CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 2 of 15
3. The complainant's husband had taken home loan of Rs. 75,00,000/- from the OP-2 bearing number LBDEL00002032769 and the said loan has secured by way of insuring the person of the amount equal to the loan amount for which an amount of Rs. 3,43,980/- was charged. The loan was procured on the understanding that in the event of any mishappening they may not be required to repay the loan amount. The said policy was to remain active till the loan remained outstanding. However the policy according to the complainant was not delivered to the insured on the ground that he may cancel it in which event the loan would remain unrecovered. The validity of the policy was for a period of fve years from 15.10.2013 to 14.10.2018.
4. However on 20.10.15 two years after obtaining the policy Sh. Dharambir Saini had fallen sick. Consequently he was admitted in Max Healthcare Super Speciality Hospital on 20.10.15 but could not survive and expired on 25.10.15 due to septic shock with MODS. Thereafter the Max Healthcare Super Speciality Hospital issued the death summary. Claim was preferred soon thereafter which claim was repudiated vide letter dated 07.03.2016 on the ground that it is outside the terms and purview of the policy. OP-1 also did not provide the risk policy despite having charged hefty premium. The gravamen of the complainant is that non-furnishing of the policy by the OPs and subsequently not approving the claim, amounts to defciency. This led to fling of this complaint for the redressal of the grievances.
5. OPs were noticed and in response thereto both the OPs have fled their written statements separately resisting the complaint. CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 3 of 15
Written Statement fled by the Opposite Party number 1 The OP-1 in their written statement while denying that the contents of the complaint sufer from factual inconsistency and alleging that the complaint fled is frivolous fled with a view to cause harassment to them has taken the stand that the insured suppressed the material information regarding pre-existing disease in which event they are not liable to approve the claim consequent upon the demise of the insured.
Written Statement/reply fled by the Opposite Party Number 2 The OP-2 in their written statement while denying the averments of the complainant on merit on the ground of suppression of material fact regarding pre-existing disease have raised preminary objection to the efect that the complainant since not a consumer is not entitled to raise a consumer dispute under Section 2(1)(e) of the Act. Secondly the complaint so fled is barred by limitation. Thirdly, there exists complicated the complaint under summary procedure.
6. The complainant has also fled rejoinder rebutting the contention raised in the written statements and reiterating the averments contained in the complaint. Evidence have also been fled by the parties to the case in support of their pleadings.
7. This matter was listed before this Commission for fnal hearing on 17.06.2020 via video conferencing. Sh. Nikhlesh Jain authorised CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 4 of 15 representative of the complainant intimated by way of a mail, that the written arguments on their behalf having been fled he has nothing to add. Prayer in the written argument is for acceptance of the claim. Sh. Anuj Chauhan appearing on behalf of the OP argued that the claim is not payable as there has been concealment material fact regarding pre- existing disease. We have perused the records of the case.
8. We may in the frst instance advert to the repudiation done. The relevant extracts are as under:-
S. Policy Condition Clause(s)
No.
1. Policy Terms & "The policy shall be null and
Conditions Part III of void and no benefit shall be
the Schedule, payable in the event of untrue
Standard Terms and or incorrect statements, mis-
Conditions, Clause 1, presentation, mis-description or
Incontestability and on non-disclosure in any
Duty of Disclosure material particular in the
proposal form, personal
statement, declaration and
connected documents, or any
material information having
been withheld, or acclaim being
fraudulent or any fraudulent
means or devices being used
by the insured or any one
acting on his behalf to obtain
any benefit under this Policyo
2. Policy wordings Part II "Clause a) Any Pre-Existing
of Schedule 2.1.4. Illness- Any insured Event Exclusions applicable arising on account of or in to Section (Major connection with any pre-
Medical Illness and existing illness.o
Procedure)
CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 5 of 15
3. Part II of the Schedule The ailment falls outside the
2.1. Section: Major purview of the nine major
Medical Illness and medical illnesses and procedure
Procedures of policy. defined.
The terms of the policy indicating the ailments are as follows:-
No. Coverage
Section Insured Event Applicable
Major Medical a. Diagnosis of the following Illnesses,
Illness & namely;
Procedures b. Undergoing of the following surgical
procedure:
Major Organ Transplant, Heart Valve
Replacement or Coronary Artery Bypass
Graft.
c. Occurrence of the following medical
Events:
Stroke, Paralysis and Myocardial Infarction.
Finally the cause of the death of the insured as indicated in the death summary is as under:-
FINAL DIAGNOSIS: DENGUE FEVER WITH ARDS WITH AKI WITH ACS KNOWN CASE OF DIABETES MELLITUS/HYPERTENSION, HYPOTHYROID.
9. The entire edifce built by the OPs negating the claim is suppression of a fact, material fact according to them, regarding pre- existing disease. But before we deal with their averment we may examine the technical objections raised. First no cogent or tangible evidence has been led to the efect that the complainant is not a consumer. Secondly the cause of action in the matter having arisen on 25.10.2015 the date on which the insured passed away and the complaint having been fled in the year 2016, the complaint has been fled within prescribed time and thus CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 6 of 15 their objection regarding limitation is not sustainable. Thirdly the objection of the OPs that since in this complaint complicated question of facts and law are involved, the same cannot be adjudicated by the consumer Commission, cannot be accepted keeping in view the judgement of the Hon'ble Supreme Court of India in the matter of J. J. Merchant versus Shrinath Chaturvedi as reported in (2002) 6 SCC 635, holding that complicated issues can be adjudicated by the consumer forum. Hence all the technical objections raised are thus sequentially rejected.
10. Now we may examine the core issue involved in this case whether the repudiation of the claim done on the ground of suppression of the fact regarding pre-existing disease can sustain. The OPs in their reply have placed reliance on several authorities that the suppression of material fact is a valid ground for repudiation of the claim. This leads to another question whether in the given case suppression of the factum about the pre-existing disease exists.
11. Issue in the given case hinges on the point whether the claim can be repudiated on the ground of undeclared pre-existing disease. We have read and re-read the records of the case. We have given a careful consideration to the subject matter.
12. Insurance documents are invariably on standard form contracts and usually the insured person signs on the dotted line. It would be extremely tenuous to expect a layman to read each and every clause of an insurance document before signing it. On most occasions, a person who intends to obtain insurance has no choice to say NO to a clause in an CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 7 of 15 insurance policy. Medical insurance is primarily obtained for the purpose of unforeseen medical conditions which may afect a person and so long as there has been no fraud, concealment or suppression, at the time of obtaining insurance, policies ought to be honoured. It is usual to see claimants running from pillar to post in order to get medical reimbursement from insurance companies. This case is no diferent.
13. On the concept, meaning and import of word disease, pre-existing disease in reference to medical insurance policy, this commission has drawn following ten conclusions in a highly extensive, dissecting manner in their decision in the matter of Pradeep Kumar Garg versus National Insurance Co. Ltd., FA-482/2005 decided on 01.08.2008. These are as under:
a. Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
b. Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre- existing disease.
c. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in or out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 8 of 15 of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
d. If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
e. Disease that can be easily detected by subjecting the insured to basic tests like blood tests, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
f. Insurance company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance companies don't discharge this obligation as half of the population is sufering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
g. Claim of any insured should not be cannot be repudiated by taking a clue or remote reference to any so called disease from the discharge summary of the insured had concealed his hospitalisation or operation for the said disease undertaken in the reasonable near proximity as referred above.
h. Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalisation or operation for the disease cannot be used for repudiating the claim. For instance an insured had sufered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not sufer from any CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 9 of 15 disease much less the pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not sufer from any disease much less the pre-existing disease.
i. For instance to pay that insured has concealed the fact that he was having pain in the chest of and on for years but has never diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on fimsy ground. Instances are not rare where people sufer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
Non-instance of hospitalisation/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
14. This Commission has taken a view in that case that unless and until a person is hospitalised or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalised or undergone operation is not a pre-existing disease. If a person conceals the factum of his hospitalisation of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy, only then it can be termed a concealment of factum of disease and doctrine of good faith under Section 45 of the Insurance Act can then alone be pressed in by Insurance company and not otherwise. Doctrine of good faith is two way trafc and not a one way trafc. If the Insurance Company takes beneft of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certifcate from the CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 10 of 15 doctor on the panel that the insured possesses sound and good health and is entitled to medi-claim insurance policy. Such a certifcate will be meaningless and of no relevance as to the state of health of a person.
15. The issue of pre-existing disease has been dealt with by the Hon'ble NCDRC in the matter of Tarlok Chand Khanna vs. United India Insurance Co. Ltd. RP-686/2007 decided on 16.08.2001 holding as under:
Infact, the onus to prove that she had a pre-existing disease was on the respondent who failed to file any expert medical or credible evidence in support of its case. Further, the deceased had been taking the mediclaim insurance policy from the respondent right from 1996 and she had also as per the practice, been examined by the doctor of the respondent/insurance company who has nowhere recorded that she had any medical problem relating to the knees.
16. The Hon'ble NCDRC is yet another judgement in National Insurance co. Ltd. vs. Rai Narain-2008 NCT 559 (NC)- the Hon'ble NCDRC held as under:
Most of the people are totally unaware of the symptoms of the disease that they sufer and hence they cannot be made liable to sufer because the Insurance Company relies on their clause 4.1 of the policy in a mala-fide manner to repudiate all the claims. No claim is payable under the medi- claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 11 of 15
17. The Hon'ble NCDRC in the matter of Praveen Damani versus Oriental Insurance Company Ltd. as reported in IV [2006] CPJ 189 (NC) has held as under:
"....If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person sufers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they sufer and hence they cannot be made liable to sufer because the Insurance Company relies on their clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much alter than he would have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain etc. prior to 11.08.2000.o
18. The Hon'ble NCDRC in the matter of Life Insurance Corporation of India versus Gurvinder Kaur as reported in III [2012] CPJ 597 (NC) is pleased to hold as under:
The State Commission held that the report of the handwriting expert was not reliable. In exercise of powers vested in it under Section 73 of the Indian Evidence Act, the State Commission itself compared the signatures on the proposal form, medical examiners confidential reports, the ECG form and came to the conclusion that the signatures on the three documents are of one and the same person. Contention of the learned counsel for the petitioner that the opinion given by the handwriting expert was binding on the State Commission and the State Commission could not evaluate the evidence itself cannot be accepted. The opinion given by an expert is a piece of evidence which could be evaluated by the Court. It is for the Court to accept or not to accept the opinion of the expert. Opinion of the expert is not binding. It has been held CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 12 of 15 in innumerable cases by the Supreme Court of India that the opinion of the expert is not binding. The State Commission is well within its right to accept or not to accept the evidence given by the handwriting expert. In view of Section 73 of the Indian Evidence Act the Commission itself could compare the admitted and the disputed signatures.
19. The fact that the onus to prove that insured was sufering from pre-existing disease is on the Insurance Company is fortifed by the orders of the Hon'ble NCDRC in the matter of LIC of India versus Priya Sharma and ors as reported in IV [2012] CPJ 646 (NC). Secondly, if the policy was issued by the insurance company without proper verifcation, they cannot be liable to repudiate the claim at the later stage, as per the view held by the Hon'ble NCDRC in the matter of Oriental Insurance Co. Ltd. versus Dipender Kaur as reported in I [2016] CPJ 603 (NC). It is trite law that the word existing means disease which exists at the time of taking the policy. Policy in the given case was obtained in 2013 but ailment visited the deceased in 2015.
20. Secondly an averment has been made by the complainant that the policy obtained by the deceased was never served. This fact has not efectively denied. No evidence has been led by the OP-1 disputing this fact, which means the averments of the complainant to this efect are to be accepted.
21. The Hon'ble Apex Court in the matter of Modern Insulator Ltd. Versus Oriental Insurance Co. Ltd. as reported in (2000) 2 SCC 734 is pleased to hold that insurance claim has to be allowed in the event terms and conditions of the policy were not furnished to him. CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 13 of 15
22. The ld. Counsel for the OP-1 has also relied on the judgment of the Hon'ble Supreme Court of India in the matter of National Insurance Co. Ltd. versus Mousumi Bhattacharjee and Ors. - Civil Appeal No. 2614 of 2019 decided on 26.03.2019 and the judgment of Hon'ble NCDRC in the matter of Kamlesh Gupta versus ICICI Lombard General Insurance Co. Ltd.
- First Appeal 1450/2014 decided on 18.02.2016, but both being on the subject other than the pre-existing disease, reliance of these judgments would be misplaced.
23. In view of the discussion done and the legal position as settled we are of the considered view that the repudiation done by the Insurance Company on the ground of pre-existing disease cannot sustain. Having regard to this the inevitable conclusion is that, the complaint deserves to be accepted and the grounds taken by the OPs since not sustainable are sequentially rejected. The question that remains to be answered now as to how the complainant can be compensated for the harassment caused to him at the hands of the OPs.
24. After analyzing the legal position we are of the view that the ends of justice would be met if a direction is issued to the OPs to allow the claim preferred within a period of two months from the date of receipt of certifed copy of the order. Besides cost of Rs. 25,000/- is awarded in favour of the complainant and against the OP-1 for causing harassment to her. Ordered accordingly.
25. A copy of this order be provided to the parties to the case free of cost as is statutorily required. File be consigned to records. CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 14 of 15
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON : 26.06.2020 Tri CC-512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 15 of 15