State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Ramesh Chander Makkar on 29 January, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SCO NO.3009-10, SECTOR 22-D, CHANDIGARH
First Appeal No.358 of 2003
Date of Institution : 24.3.2003
Date of Decision : 29.1.2010
New India Assurance Company Limited, through its Regional Manager,
Sector 17-A, Chandigarh.
.........Appellant
Versus
Ramesh Chander Makkar, Resident of Kothi No.8, State Bank Colony,
Hoshiarpur.
.........Respondent
Appeal against the order dated 28.1.2003
of District Consumer Forum, Hoshiarpur.
BEFORE
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
PRESENT For the appellant : Ms.Harsimrat Rai, Advocate for Ms.Veena Ashwani Talwar, Advocate For the respondent : Sh.Suvir Sehgal, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT Ramesh Chander Makkar, respondent had taken the mediclaim policy from the appellants for the period from 23.9.1999 to 22.9.2000. He felt pain in his left leg. He was admitted in Shri Guru Nanak Dev Hospital/Medical College, Amritsar on 18.1.2000 and he remained admitted there upto 28.1.2000. The mediclaim was lodged by the respondent with the appellants and the matter was settled for an amount of Rs.7,295/- on 10.7.2000.
2. It was further pleaded that after sometime again the respondent felt pain in his right foot as well as in the left foot. He was admitted in Apollo Hospital on 21.8.2000 where he was operated and he remained admitted upto 1.9.2000. The respondent spent an amount of Rs.2,26,922/-. 2 Appeal 358/2003
3. It was pleaded that mediclaim policy was renewed for the period from 23.9.2000 to 22.9.2001.
4. It was further pleaded that respondent again felt pain in his left leg. He was again admitted in Apollo Hospital on 13.10.2000 where he was operated upon and he remained admitted upto 22.10.2000. He spent an amount of Rs.52,519/-.
5. It was further pleaded that appellants have not settled the mediclaim insurance. Alleging deficiency in service on the part of appellants, the respondent filed a complaint against them for reimbursement of insurance claim. Interest and cost of litigation were also prayed.
6. The appellants filed the written reply. It was admitted that the respondent had taken the mediclaim insurance policy from the appellants for the period from 23.9.1999 to 22.9.2000 for an amount of Rs.1 lac. It was also admitted that the respondent had remained admitted in Shri Guru Nanak Dev Hospital/Medical College, Amritsar for the period from 18.1.2000 to 28.1.2000 and the insurance claim for an amount of Rs.7,295/- was settled on 10.7.2000.
7. It was further pleaded that it was not in the knowledge of appellants that the disease for which the respondent had taken the medicalim insurance was pre-existing. Therefore, that claim was paid under bona-fide mistake.
8. It was further admitted that the respondent has submitted the medical bills for his hospitalization in the Apollo Hospital for the period from 21.8.2000 to 1.9.2000 for an amount of Rs.2,26,922/-. It was not payable as per the terms and conditions of the insurance policy. Moreover the insurance claim was only for an amount of Rs.1 lac while the respondent was making claim to the tune of Rs.2,26,992/- for his first admission. 3 Appeal 358/2003
9. It was admitted that the insurance policy was got renewed by the respondent for the period from 23.9.2000 to 22.9.2001 for an amount of Rs.1 lac. It was also admitted that the respondent had submitted the medical for his alleged admission in the hospital for the period from 13.10.2000 to 22.10.2000 to the tune of Rs.52,519/- and lodged the second mediclaim.
10. Since the disease of the respondent was pre-existing and since he had concealed the material facts, therefore, the respondent was not entitled to any medical insurance claim. It was denied if there was any deficiency in service on the part of the appellant. Hence dismissal of the complaint was prayed.
11. Ramesh Chander Makker, respondent filed his affidavit as Ex.C-1 in support of his complaint. He also proved documents Ex.C-2 to C-
11. On the other hand, the appellants proved documents Ex.R-1 to R-8. They also filed the affidavit of C.S.Grover, Divisional Manager, New India Assurance Company Limited as Ex.R-9.
12. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint vide impugned order dated 28.1.2003 with costs of Rs.250/- and directed the appellants to make the payment of Rs.92,705/- against the mediclaim insurance policy.
13. Hence the appeal.
14. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned order dated 28.1.2003 be set aside.
15. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the appeal and the same be dismissed.
16. Record has been perused. Submissions have been considered. 4 Appeal 358/2003
17. Admittedly the respondent had taken the mediclaim policy from the appellants originally for the period from 23.9.1999 to 22.9.2000. It was lateron got renewed by him for the period from 23.9.2000 to 22.9.2001. The appellants have also proved mediclaim policy for the period from 23.9.1999 to 22.9.2000 as Ex.C-2 for an amount of Rs.2 lacs while the policy for the period from 23.9.2000 to 22.9.2001 has been proved as Ex.C-3. The policy for the period from 23.9.2001 to 22.9.2002 is proved as Ex.C-4 and the policy for the period from 23.9.2002 to 22.9.2003 is proved as Ex.C-5.
18. In order to prove that the disease of the respondent was pre- existing, the appellants have placed on the file the Discharge Summary issued by Indraprastha Apollo Hospital in respect of the respondent for the period from 21.8.2000 to 1.9.2000 as Ex.R-2. In the Discharge Summary dated 1.9.2000, the history of the disease of the respondent for which he took the medical treatment and for which he was seeking mediclaim has been stated as under:-
"HISTORY Patient presented with pain and feeling of numbness in both the feets since 3 years prior to admission. Pain started at night, first time in (Rt) foot and was operated earlier (symphathectomy) and had some relief (Not complete relief). Later the pain also started in the left foot. His movements were restricted to just a few steps. Claudication distance Lt.<Rt."
18. The perusal of Discharge Summary dated 1.9.2000, Ex.R-2, reveals that the respondent was having pain and feeling of numbness in both the feet for the last 3 years prior to his admission in this hospital on 21.8.2000. It means, therefore, that he was having this disease since 21.8.1997. The medical insurance was taken by the respondent for the first 5 Appeal 358/2003 time on 23.9.1999. Therefore, the disease of the respondent regarding his pain and numbness in the feets was pre-existing.
19. The respondent has not placed on file any document to show if he had disclosed this disease while filling the proposal form.
20. In this context, reference may be made to the judgement of Hon'ble Supreme Court reported as "Satwant Kaur Sandhu v. New India Assurance Company Ltd." 2009 CTJ 956 (Supreme Court) (CP) wherein the Hon'ble Supreme Court was pleased to hold as under:-
".................We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorizes the insurer to seek information from any hospital he had attended or may attend concerning any disease or illness which may affect his health."
21. Since the insured had given a wrong information in the proposal form about his health condition. It means, therefore, that the insured had 6 Appeal 358/2003 suppressed the material facts regarding his illness and disease from which he was suffering in his feet.
22. It was also held by the Hon'ble Supreme Court in the aforesaid judgment as under:-
"12. 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 the insurance policy. The present case relates to a mediclaim policy, which is entirely different from a life insurance policy. A medi-claim 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 ubberimae 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, 7 Appeal 358/2003 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."
23. It was also observed Hon'ble Supreme Court in the aforesaid judgment as under:-
"20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance."
24. The term material fact has been defined by the Hon'ble Supreme Court and the law was made clear by the Hon'ble Supreme Court in Satwant Kaur Sandhu's case (supra) as under:-
"17. The term "material fact" is not defined in the Act and, therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or 8 Appeal 358/2003 determining whether he would like to accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be "material".
25. It was observed by the Hon'ble Supreme Court in Satwant Kaur Sandhu's case (supra) as under:-
" Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent-insurer was fully justified in repudiating the insurance contract."
26. The law laid down by the Hon'ble Supreme Court in Satwant Kaur Sandhu's case (supra) is fully applicable to the facts of this case. Therefore, the respondent having suppressed material facts is not entitled to any mediclaim under the insurance policy.
27. Accordingly, this appeal is accepted and the impugned order dated 28.1.2003 is set aside.
28. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
29. The arguments in this case were heard on 28.1.2010 and the orders were reserved. Now the orders be communicated to the parties. 9 Appeal 358/2003
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
( JUSTICE S.N.AGGARWAL ) PRESIDENT ( MRS.AMARPREET SHARMA ) MEMBER January 29 , 2010 vr/-
10Appeal 358/2003