State Consumer Disputes Redressal Commission
M/S Royal Sundaram Alliance Insurance ... vs Hansraj Juneja Son Of Late Shri Hari ... on 16 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.545 of 2008 Date of Institution: 19.02.2008 Date of Decision: 16.07.2012 M/s Royal Sundaram Alliance Insurance Co. Ltd., Gurgaon through Sh. S. Srinivasan, Deputy General manager-Legal of M/s Royal Sundaram Alliance Insurance Co. Ltd., Sundaram Towers, 45 & 46, Whites Road, Chennai-600014 duly constituted attorney. Appellant (OP) Versus Hansraj Juneja son of late Shri Hari Chand (since deceased) through his LRs. 1. Lajwanti wife of late Shri Hansraj Juneja r/o A-1/209, G.F. Paschim Vihar, Delhi. 2. Jagdish Chander son of late Shri Hansraj Juneja r/o A-1 B/95-A, LIG Flats, Paschim Vihar, Delhi. 3. Harish Juneja son of late Shri Hansraj Juneja C/o Shiv General Store, Model Town, D-Park, Rohtak. 4. Pawan Juneja son of late Shri Hansraj Juneja 5. Rakesh Kumar Juneja son of late Shri Hansraj Juneja 6. Deepak Juneja son of late Shri Hansraj Juneja 7. Ms. Neelam Madan d/o late Shri Hansraj Juneja 8. Ms. Shashi Ahuja d/o late Shri Hansraj Juneja 9. Ms. Ranjana Malhotra d/o late Shri Hansraj Juneja Both respondents No.4 to 9 are the C/o A-1/209, GF, Pashim Vihar, Delhi. Respondents (Complainants) BEFORE: Honble Mr. Justice R.S. Madan, President. Dr. Rekha Sharma, Member. For the Parties: Shri R.K. Bashamboo, Advocate for appellant. Shri J.S. Hooda, Advocate for respondents. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 27.11.2007 passed by District Consumer Forum, Gurgaon whereby complaint filed by the complainants (respondents herein) was accepted by granting following relief:-
We, therefore, allow this complaint and direct the opposite party reimburse the expenses incurred by complainant in medical treatment to the extent of insurance limit together with interest at the rate of 9% per annum from the date of lodging the claim with the opposite party till the actual payment is made. The opposite party is also burdened to pay Rs.5,000/- to the complainant on account of cost of litigation and the compensation for the harassment caused by the opposite party to the complainant. Order be complied with within one month from the date of receipt of the copy of this order. The delay in deciding the complaint is due to heavy pending files.
The brief facts of the present case as emerged from the record are that the complainant Hansraj Juneja was to go to United States of America in April, 2002 to visit his son at USA who is doctor by profession. The complainant wanted to get himself insured for the period of his stay in U.S.A. so as to cover all his risks. Complainant Hansraj Juneja got himself insured with the appellant-opposite party under Travel Shield Gold Policy No.TR 30264 after completing all the requisite formalities and conditions. The above said policy was initially obtained from 15.04.2002 to 13.07.2002 and it was further extended upto 13.09.2002 by paying additional premium of Rs.10,452/-. The complainant alongwith his wife left for U.S.A. on 15.04.2002. On 08.07.2002 the complainant developed acute on set of slurred speech and decreased left extremity movement. He also complained of some difficulty in swallowing and had noted some drooling from the left side of his mouth. The complainant was taken to Gundersen Lutheran Medical Centre LA CROSSEE, WISCONSIN 54601 wherefrom he was discharged on 10.07.2002 after treatment. According to the complainant, he spent Rs.15,000/- US Dollars on his treatment and hospitalization etc which was to be reimbursed by the opposite party under the policy. However, on being submitted claim with the opposite party, during the course of investigation it revealed that the insured had the history of hypertension which is known risk factor for stroke. It was further observed by the opposite party that Right middle Cerebral Artery Cerebro Vascular Accident was a complication of pre-existing disease hypertension and as per the terms and conditions of the policy, if it is a case of a pre-existing disease, then the claim is not payable. Accordingly, complainants claim was repudiated vide letter dated 29.10.2002. Challenging the repudiation of their claim, complainants (the legal heirs of deceased Hansraj Juneja) invoked the jurisdiction of the District Consumer Forum seeking direction to the opposite party to pay the insurable benefits to them.
Upon notice, the opposite party appeared and contested the complaint by filing written statement stating therein that the opposite party had made elaborate study of entire medical records which was received by them from the complainant and from the Hospital in U.S.A. wherein the complainant underwent the treatment. After the study of all the records by the panel of doctors of third party assessors of the opposite party namely Resolve Consultants, it was crystal clear that the insured Hansraj Juneja had a history of hyper tension,. The opinion of the doctor Ms. Mary L Goodsett of Gundersen Lutheran Medical Centre, U.S.A. was also obtained. Thereafter, on the basis of the report of the third party Assessors, the opposite party came to a conclusion that the complainant was suffering from hyper tension even at the time of taking of the policy and the pre-existing disease was not disclosed by the insured Hansraj Juneja in the proposal form. The ailment for which treatment was taken at U.S.A., had ocdurred due to the pre-existing disease (hyper tension). Thus, denying any kind of deficiency in service, the opposite party prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on record, District Consumer Forum accepted complaint and issued direction to the opposite party as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party has come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellant it is contended by Shri R.K. Bashamboo, Advocate that at the time of taking the policy, the life assured had given wrong answers to the questions despite the fact that he was suffering from pre-existing disease i.e. hyper tension. In support of his argument learned counsel for the appellant has drawn our attention towards Annexure C-2 wherein the life assured had given wrong answers to the questions put to him and declared that he was having good health and was not suffering from any disease.
Learned counsel for the appellant has further drawn our attention towards the treatment record of life assured Hansraj Juneja (Annexure C-10) which reflects that he was having history of Hypertension, constipation, hemorrhoids with some bleeding one month ago. As per the terms and conditions of the insurance policy, Pre-existing disease was not covered under the policy, which is reproduced as under:-
Pre-existing Condition Any such diseases/injury which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-existing condition also means any disease or its symptoms which existed prior to the effective date of this insurance, whether or not the Insured Person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of that pre-existing condition.
From the record it is established that the life assured was having knowledge of the disease suffered by him at the time of submitting the proposal form. The report of the RESOLVE consultants in this regard has been produced on the record the relevant part of which is reproduced as under:-
Conclusion:
1.
The statement of Dr. Mary Goodsett is an evident of the fact that Mr. Juneja had a history of hypertension, which is a known risk factor for stroke.
2. The Medical Reports of Mr. Juneja for the tests conducted in Sanjay Gandhi Memorial Hospital at the time of filing the proposal do not reveal any previous medical history of the insured Mr. Juneja. However, there is no specific test asked for or a specific answer hypertension.
3. Dr. Miglani has said in his statement that all necessary medical tests were carried out before signing the insurance proposal at Sanjay Gandhi Hospital and alla the reports were normal, which had already been submitted in original with the proposal. However, Blood Pressure is a standard testing prior and during the course of an ECG. However, Dr. Miglani has not mentioned anything on Hypertension in his report. This can be considered as abstinence.
4. The fact that Mr. Juneja had a history of hypertension was not disclosed to the insurer i.e. Royal Sundaram Insurance Company at the time of making the proposal.
5. Given this, it can safely be assumed that Mr. Juneja was aware of his condition of Hypertension. This ma material information of Risk and a known risk factor for a stroke.
Therefore the Dr. Miglani, who stated as a family doctors was well aware of the condition of Hypertension but abstained to report this.
The information of Risk withheld is material information and indeed is a known risk factor for a stroke, as was suffered & claimed by the insured.
Mr. Hans Raj, the insured, was fully aware of his condition, also abstained from disclosing his condition of Hypertension. Therefore such a non-disclosure material information is deliberate, misleading and breaches good faith.
By now it is well settled law that the contract of insurance is based on good faith and at the time of submitting proposal, the life assured is under an obligation to disclose each and every aspect with respect to his/her state of health. Any deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. Reference is made to case law cited as CROWN CONSULTANTS PVT. LTD. Versus ORIENTAL INSURANCE COMPANY LTD., III(2011) CPJ 439 (NC), wherein Honble National Commission has observed as under:-
19. A contract of insurance is based on the doctrine of uberrima fides, i.e., utmost good faith, in the conduct of the insured. This doctrine was enunciated as far back as in 1766 by Lord Mansfield in the celebrated case of Carter V. Boehm, (1766) 97ER 1162, 1164, in the following words:
Insurance is a contract of speculation.The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only; underwriter trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the underwriter into a belief that the circumstance does not exist.Good faith forbids either party for concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.
Honble Supreme Court in judgment cited as SATWANT KAUR SANDHU versus NEW INDIA ASSURANCE COMPANY, (2009) 8 SCC 316, has observed as under:-
29. 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. 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.
This case is fully covered by SATWANT KAUR SANDHUs case (Supra). In the instant case, the opposite party has sufficiently established that the insured Hansraj Juneja was suffering from hypertension at the time of obtaining the Insurance Policy and therefore complainants are not entitled for any insurable benefits. District Consumer Forum has failed to appreciate the above stated facts of the case, hence, the impugned order cannot be allowed to sustain.
As a sequel to our aforesaid discussions, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: (Justice R.S. Madan) 16.07.2012. President (Dr. Rekha Sharma) Member