State Consumer Disputes Redressal Commission
Reliance Gen Ins Co Ltd vs Mithalal Hiralal Jain on 18 January, 2023
Details DD MM YY
Date of disposal 18 01 2023
Date of filing 10 04 2015
Duration 08 09 07
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
APPEAL NO. 798 of 2015
Reliance General Insurance
Company Limited,
Surat,
Through its
Ahmedabad office at
Zodiac Avenue, 3rd Floor,
Opp. Mayor's Bungalow,
Navrangpura, Ahmedabad. ...Appellant.
V.s
Mithalal Hiralal Jain,
B-1, Jamna Nagar,
Opp. Subhashnagar Hall,
Race Course Road,
Surat. ...Respondent.
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BEFORE: Mr. I. D. Patel, Judicial Member.
APPERANCE: Mr. V. P. Nanavaty L.A. for the appellant,
Mr. D. U. Thakkar L.A. for the respondent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The appellant Insurance Company has filed the present appeal as per the provision of Section 15 of Consumer Protection Act 1986, against the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat (Additional), in Additional Case No. 677/12 dated 31.01.2015 whereby, the Ld. Consumer Disputes Redressal Forum, Surat (Additional), is pleased to partly allow the complaint of the complainant and directed the appellant original opponent Insurance Company to pay Rs. 3,52,059/- along with the K.Navlakha A/15/798 Page 1 of 12 interest at the rate of 9% from the date of complaint to the original complaint present respondent.
2. The brief facts of the complainant are that the complainant had taken Medi Claim Insurance Policy from the opponent No. 1 Reliance General Insurance Company Limited for the period of 23.03.2009 to 22.03.2010 of the sum insured of Rs. 5,00,000/- and during the duration of the said Insurance Policy as on 07.04.2009 on account of Weakness, Chest Pain, Uneasiness and difficulty in Respiratory system complainant admitted in the Asian Heart Institute, Mumbai as on 12.04.2009 as an indoor patient and in the said Hospital the angiography of the complainant was done and he was discharge on 15.04.2009 from the said hospital and for the treatment the complainant spent Rs.3,52,059/- therefore, the complainant lodged the claim with the Insurance Company along with the necessary documents However, vide letter dated 19.09.2012, Insurance Company repudiated the claim of the complainant on the ground that at the time of taking Insurance Policy there was pre-existing disease suffered by the complainant but complainant had not disclose the same in the proposal form, therefore, the complainant filed the complaint as per the provision of Consumer Protection Act before the Ld. Consumer Disputes Redressal Forum, Surat (Additional).
3. That the Ld. Consumer Disputes Redressal Forum, Surat (Additional), issued notice to the appellant original opponent Insurance Company and Insurance Company has appeared before the Ld. Consumer Disputes Redressal Forum, Surat (Additional), and filed reply, thereby, the Insurance Company has categorically denied all the facts alleged by the complainant in respect of deficiency in service and unfair trade practice on the part of Insurance Company. Furthermore, Insurance Company has also categorically stated that on account of Pre-existing disease/condition of the complainant. Insurance Company has repudiated the claim of the complainant as per the terms and conditions of the Insurance Policy and therefore, as per the say of the Insurance Company the complaint filed by the complainant is not tenable against the Insurance Company. Hence, Insurance Company prays for the dismissal of the same against the Insurance Company with the costs.
K.Navlakha A/15/798 Page 2 of 124. That the Ld. Consumer Disputes Redressal Forum, Surat (Additional), after hearing the Ld. Advocate of the party and considering the evidence on record allow the complaint filed by the complainant vide order dated 31.01.2015. Hence, being aggrieved and dissatisfied by the said impugned judgment and order of the Ld. Consumer Disputes Redressal Forum, Surat (Additional), the appellant Insurance Company has filed the present appeal on the ground stated in the appeal memo.
5. I have heard the argument of the Ld. Advocate Mr. Darshil Parikh for the appellant Insurance Company and Ld. Advocate for the respondent Mr. D. U. Thakkar, I have also gone through the impugned judgment and order passed by the Ld. District Consumer Disputes Redressal Forum, Surat (Additional), in Additional Case No. 677/12. That this commission has also considered the documentary evidence produced by the appellant in this appeal as well as the complainant and the written statement filed by the Insurance Company before the Ld. Consumer Disputes Redressal Forum, Surat (Additional).
6. That the Ld. Advocate of the appellant Mr. Darshil Parikh, has submitted that the present complainant has lodged the claim of his angiography treatment taken in the Asian Heart Institute, Bombay, and lodged the claimed Rs. 3,52,059/- for the expenses incurred by him for his treatment from the Insurance Company but after investigation the claim of the complainant the Insurance Company found from the discharge summary of the complainant of the Asian Heart Institute that complainant was having Pre-existing disease namely PTCA to LAD (1998), prior to the inception of the Policy with Reliance Insurance Company, and the same is suppress by the complainant in the proposal form hence, the Insurance Company repudiated the claim of the complainant as per the terms and condition and exclusion clause of the Policy in question. That the Ld. Advocate Mr. Darshil Parikh for V. P. Nanavaty, has also submitted that the Insurance Company has issued First Policy in favour of the complainant for the period of 23.03.2007 to 22.03.2008 copy thereof is produced at page 32 of this appeal and thereafter, the said policy is renewed for the paid of 23.03.2008 to 22.03.2009 copy thereof is produced at page 34 and he has also submitted that thereafter, Insurance Company has issued Third renewal Policy for the period of 23.03.2009 to 22.03.2010 in favour of the complainant copy thereof is produced at page 37 to 38. That the Ld. K.Navlakha A/15/798 Page 3 of 12 Advocate of the appellant has also submitted that the Insurance Company has also produced the terms and conditions of the Policy in question on page 71 to 98 wherein on page 72 wherein at serial No. 17 there is a definition of Pre-existing Condition means any condition, ailment or injury or related conditions for which the insured/insured person had sings or symptoms and/or were diagnosed and/or received medical advice/treatment, within 48 months prior to the first policy with us. Furthermore, he has also drawn the attention of this commission on the Policy Exclusion which is on page 74 of the terms and conditions of the Insurance Policy and as per the said exclusion Policy the company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to All Pre-existing diseases/illness/injury/conditions as defined in the policy, until 24/48 months of continuous covers have elapsed as per the plan opted, since inception of the first policy with us. That Ld. Advocate of the appellant has also submitted that even on the first page of the policy page 34 on the bottom there is a mention of special condition if any definition of Pre-existing disease should read as: any condition, ailment or injury or related conditions for which you had sings or symptoms and/or were diagnosed and/or received medical advice/treatment, within 48 months prior to your first policy with us. Exclusions for Pre-existing should be read as: benefits will not be available for any conditions defined in the policy until 24 months of conditions coverage have elapsed, since inception of the first policy with us. So, as per the submission of Ld. Advocate of the appellant if there is a Pre-existing disease means any conditions ailment or injury before the inception of the First policy with the appellant Insurance Company then Insurance Company not liable to pay any amount towards the treatment to the insured that is the complainant.
7. That Ld. Advocate of the appellant has also drawn the attention towards the discharge summary of the Asian Heart Institute produced on page 52 and 53 and in the said discharge summary also it is specifically mention that before taking of Insurance Policy from the Insurance Company by the complainant, in the 1998 complainant had undergone treatment of PTCA To LAD (1998). That the Ld. Advocate of the appellant also drawn the attention of this commission towards the proposal form filed by the complainant of the Medi Claim Insurance Policy copy thereof is produced at page 67 to 69 wherein in column No. 9 details of the Insurer's Medical History are sought from the K.Navlakha A/15/798 Page 4 of 12 complainant, but the complainant has not disclosed any fact of Pre- existing disease. Thereby, the complainant suppress the material fact regarding Pre-existing disease which also authorize the Insurance Company as per terms and conditions to repudiate the claim of the complainant. That the Ld. Advocate of the appellant has also submitted that the Ld. Consumer Disputes Redressal Forum, Surat(Additional), has allow the complaint of the complainant mainly on the ground that Insurance Company has not provided/supplied the relevant terms and conditions of the Insurance Policy to the complainant but their findings is not correct and proper because in the complaint complainant has not made any averment to that effect but after written statement filed by the Insurance Company complainant raise such contention. Therefore, it cannot be believe that complainant had not receive terms and condition of Insurance Policy. That the Ld. Advocate of the appellant has also submitted that on bottom of the First page of the policy for the period 23.03.2008 to 22.03.2009 produced at page 34 there is a mention of specific condition of Pre-existing disease therefore, also it cannot be said that the complainant was not aware about the terms and conditions of the Insurance Policy. That the Ld. Advocate Mr. Darshil Parikh has also submitted that the Ld. Consumer Disputes Redressal Forum, has observe in the impugned judgment and order that Insurance Company has not produced any positive evidence regarding the suppression of the Pre-existing disease by the complainant but that finding is also not correct though there is enough evidence on record and the Ld. Consumer Disputes Redressal Forum, Surat (Additional), has not given any valid reasons for not believing repudiation letter of the Insurance Company and accordingly impugned judgment and order of the Ld. Consumer Disputes Redressal Forum, Surat (Additional), is not just and proper which requires to be quashed and set aside in this appeal.
8. That the Ld. Advocate of the appellant Insurance Company has also place reliance on the following decision in support of his appeal.
1. II (2015) CPJ 654 (NC) in case of Khimani S. Mehta Vs. New India Assurance Co. Ltd.
2. IV (2009) CPJ 8 (SC) in case of Satwant Kau Sandhu Vs. New India Assurance Co. Ltd.
3. III (2010) CPJ 5 (NC) in case of United India Insurance Co. Ltd. Vs. Subhash Chandra.
4. 2009 (0) GLHEL-SC 47567 in case of Grasim Industries Ltd. Vs. Agarwal Steel K.Navlakha A/15/798 Page 5 of 12
5. III (2017) CPJ 319 (NC) in case of Aman Kapoor Vs. National Ins. Co. LTD.
6. Appeal No. 628 of 2014 (Gujarat State Commission) in case of Bajaj Allianz Gen. Ins. Co. Ltd. Vs. Rameshbhai S. Patel.
9. That the Ld. Advocate for the respondent Mr. D. U. Thakkar has supported the finding recorded by the Ld. Consumer Disputes Redressal Forum, Surat (Additional), in allowing the complaint of the complainant against the appellant Insurance Company that he has also submitted that there is no any infirmity or perverseness in the finding recorded by the Ld. Consumer Disputes Redressal Forum, Surat (Additional), while allowing the complaint Ld. Advocate Mr. D. U. Thakkar, has also submitted that the Insurance Company has falsely repudiated the claim of the complainant on the ground of suppression of Pre-existing disease as per the discharge summary of Asian Heart Institute, Ld. Advocate Mr. D. U. Thakkar, has also submitted that the Insurance Company has not produced any cogent and reliable evidence to prove the suppression of material fact regarding Pre-existing disease by the complainant in the proposal form. That the Ld. Advocate Mr. D. U. Thakkar, has also submitted that on the basis of very terms and conditions/exclusion clause of the Insurance Policy Insurance Company has repudiated claim of the complainant but the Insurance Company has not provided alleged terms and conditions including exclusions clause of the Policy to the complainant. Therefore, when Insurance Company fail to provide terms and conditions/exclusion clause of the Policy then Insurance Company cannot relied upon the said terms and conditions/exclusion clause for repudiation of the claim of the complainant. That Ld. Advocate Mr. D. U. Thakkar, has placed reliance upon the judgments of the state commission and national commission in support of his case viz. (1). Appeal No. 1317/14 New India Assurance Co. Ltd. Vs. Maganjibhai Makanjibhai Patel Gujarat State Commission (2). Gujarat State Commission of Appeal No. 342/16 The United India Insurance Co. Ltd. Vs. Rajesh Rasiklal Reshsmvala & Anr. (3). III (2020) CPJ 321 (NC) Gulabchand Shankarlal Vs. Oriental Insurance Co. Ltd.
10. That this commission has considered the submission made by the Ld. Advocate of the appellant as well as Ld. Advocate of the respondent in great detail. That this commission has also considered and gone through the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat (Additional), in Additional Case No. K.Navlakha A/15/798 Page 6 of 12 677/12 and also considered the documentary evidence produced by the parties before the Ld. Consumer Disputes Redressal Forum, Surat (Additional), as well as before this commission in appeal. That in this matter it is not in disputes that complainant had taken the medi claim Insurance Policy of sum of Rs. 5,00,000/- from 23.03.2007 on wards up to 22.03.2010 from the Reliance General Insurance Co. Ltd. as same reflected from the copies of the Policy produced at page 32 to 38 that it is also not in dispute that the complainant had taken the treatment of IHD: EFFORT ANGINA from Asian Heart Institute, Mumbai, as an indoor patient from 12.04.2009 to 15.04.2009 that as per the discharge summary of Asian Heart Institute the complainant had also taken treatment of illness of PTCA To LAD (1998). That the appellant Insurance Company has repudiated the Medi Claim of the complainant vide letter dated 19.09.2012 copy thereof is produced at page 60 and as per said letter "on perusal of document forwarded it is observed: DOA 12.4.09, POI 23.3.07; IHD, effort angina; kn case of IHD; underwent PTCA in 1998; ailment prior to inception of policy with reliance; hence pre existing hence the claim stands denied under clause 1 (Pre-existing diseases/illness/Injury/conditions- which are pre-existing when the cover incepts for the first time) of RHWP. Hence, we regret our inability to admit this liability under the present policy conditions." That the said repudiation is challenge by the complainant while filing Consumer Complaint before the Ld. Consumer Disputes Redressal Forum, Surat (Additional), being Additional Case No. 677/12 and after hearing of the parties and on perusal of the record of the case the Ld. Consumer Disputes Redressal Forum, Surat (Additional), is pleased to allow the complaint partly in favour of the complainant and directed the appellant Insurance Company to pay Rs. 3,52,059/- along with interest at 9% from the date of the complainant to the complaint of the complainant and the said impugned judgment and order has been assailed by the Insurance Company by way of filing this appeal. Therefore, this commission has to be adjudicate that whether the repudiation of the Insurance Company is justified or not and this commission has also to adjudicate whether the finding recorded by Ld. Consumer Disputes Redressal Forum, Surat (Additional), while allowing the complaint of the complainant are just and proper or of the same are perverse and erroneous on the basis of the documentary evidence produced by the party before the Ld. Forum.
K.Navlakha A/15/798 Page 7 of 1211. That the impugned judgment and order of the Ld. Consumer Disputes Redressal Forum, Surat (Additional), is mostly based on the non receipt of terms and conditions/exclusion clause of the Insurance Policy by the complainant. That I have perused the complaint of the complainant which is produced at page 26 to 29 in this appeal no were complainant has averred that the Insurance Company has not provided any terms and conditions/exclusion clause along with the Policy to the complainant. So, in the complaint even after receipt of the repudiation letter complainant has not made allegation regarding non receipt of terms and conditions of the Policy but after Insurance Company filed the written statement first time complainant has contented in the rejoinder affidavit in para 6 in one line that the Insurance Company has not explain any terms and conditions to the complainant but if we perused the Policy first page for the paid of 23.03.2008 to 22.03.2009 page 34 on the bottom there is a mention of special condition if any Definition of Pre-exisiting Disease should read as: Any condition, ailment or injury or related condition(s) for which you had signs or symptoms and/or were diagnosed and/or received medical advice/treatment, within 48 months prior to your first policy with us. Exclusions for Pre-exisiting should be read as: Benefits will not be available for any condition(s) defined in the policy until 24 months of continuous coverage have elapsed, since inception of the first policy with us. That means on First page of the policy there is a mention of special conditions regarding definition of Pre-existing disease and the Insurance Company will not be liable for any conditions. So, therefore, it cannot be said the complainant had not received any terms and conditions from the Insurance Company even as per the decision of the Hon'ble National Commission in Gulabchand Shankarlal Vs. Oriental Insurance Co. Ltd. Reported III (2020) CPJ 321. When the complainant is experience person and not a lay person, and if he had not received terms and conditions along with the Policy document then it is the responsibility of the complainant insured to ask those terms and conditions from the Insurance Company. So, here in this case also the complainant is a business man. So, he is not illiterate person when he is taking the Medi Claim Insurance Policy from 23.03.2007 on wards and, if he has not received any terms and condition of the Insurance Policy it is his duty to ask the same from the Insurance Company but if he fail to do so, then he cannot raise such defence that he has not received any terms and conditions of the Insurance Policy therefore, according to view of this commission the finding recorded by the Ld. K.Navlakha A/15/798 Page 8 of 12 Consumer Disputes Redressal Forum, Surat (Additional), to the effact that Insurance Company has not provided relevant terms and conditions of Insurance Policy to the complainant is not correct and legal.
12. Now, if we perused the terms and conditions provided in the first page of the Insurance Policy for the period of 23.03.2008 to 22.03.2009 on the bottom there is a mention of special condition if any Definition of Pre- exisiting Disease should read as: Any condition, ailment or injury or related condition(s) for which you had signs or symptoms and/or were diagnosed and/or received medical advice/treatment, within 48 months prior to your first policy with us. Pre-existing disease should read as any conditions ailment within 48 months prior to first Policy with the Insurance Company that is from 23.03.2007 and as per the said special condition benefit of any Pre-existing conditions will not be available until 24 months of continues coverage have elapse since inceptions of the first Policy with us. That means insured is not entitle to get any benefits that is the reimbursement of the expenses incurred for treatment on any Pre-existing conditions until 24 months of the First Policy that is from the 23.03.2007. Furthermore, If we perused the definition as provided in terms and conditions produced by the Insurance Company from page 71 to 98, on page 72 at serial No. 17 there is a definition of Pre-existing conditions means any conditions, ailment or injury or related condition(s) for which the Insured/Insured person had signs or symptoms and/or were diagnosed and/or received medical advice/ treatment, within 48 months prior to the first policy with us. And along with the said definition if we perused the Policy exclusion on page 74 The Company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following: All pre-existing diseases/illness/injury/conditions as defined in the Policy, until 24/48 months of continuous covers have elapsed as per the plan opted, since inception of the first Policy with us. So, combined reading of the terms and condition and definition of the Pre-existing condition and policy exclusion clause of policy of Insurance Company on page 34 as well as page 71 and 74 leads to believe that the insured is not entitle to get the benefit of the Pre-existing disease treatment expenses until expiry of 24 months since the inception of First Policy with the Insurance Company that is from the 23.03.2007 and here in this case as per the discharge summary of the Asian Heart Institute complainant had admitted for his K.Navlakha A/15/798 Page 9 of 12 angiography treatment on 12.04.2009 as an indoor patient. That means after expiry of 24 months from the first Policy dated 23.03.2007 and said period of treatment from 12.04.2009 to 15.04.2009 as an indoor patient in Asian Heart Institute of the complainant cover in the Third Policy from the period of 23.03.2009 in to 22.03.2010. Therefore, according to consider view of this commission even the terms and conditions of Insurance Policy were provided to the complainant by the Insurance Company along with the Insurance Policy the complainant is entitle to get the reimbursement of the expenses incurred for treatment taken in Asian Heart Institute after expiry of 24 months and therefore, according to view of this commission the Insurance Company has falsely repudiated the claim of the complainant.
13. That the Insurance Company has also place reliance upon the alleged proposal form which is produced at page 67 to 68 for suppression of the material fact regarding the Pre-existing disease by the complainant but if we perused the said Proposal Form more particularly column No. 9 of details of Insurer's Medical History that is Details of Pre-existing disease/illness/injury if any on page 68 it is mention as "NA" that means not applicable. So, when the complainant mention in the column No. 9 of the proposal form as "NA" means Insurance Company has accepted the blank Proposal Form without any specific information in respect of column No. 9 of the proposal form from the insured and issued the Policy in question and when the Insurance Company has issued Policy after accepting blank column proposal form then as per the decision of the Hon'ble Apex Court in the case of Canara Bank Vs. United India Insurance Company 2020 (3) SC Cases 455 and as per the decision of National Commission rendered in Revision Petition No. 1778/11 in the case of Birla Sun Life Insurance Company Vs. Ankit and Others. Reported 1 2016 CPJ page 573. It cannot be said that, leaving column blank in the proposal form omission/mistake on the part of the Insurance Company and it cannot be said to be the concealment of material fact. So, here in this case also when the Insurance Company has accepted the proposal from left blank of column 9 from the complainant then the Insurance Company cannot repudiate the claim on the basis of the said proposal form on the ground of concealment of material fact and as such also the repudiation of the claim of the complainant made by the Insurance Company is not just and proper and same is not justified.
K.Navlakha A/15/798 Page 10 of 1214. That I have gone through the judgment cited by the Ld. Advocate of the appellant that on the ground of suppression of Pre-existing disease Insurance Company is entitle to repudiate the claim but here in this case as stated here in above when the Insurance Company has failed to prove suppression of material fact more particularly the concealment of Pre-existing disease of the complainant on the basis of the proposal form then the repudiation of the Insurance Company is not justified and therefore, all the judgment cited by the Ld. Advocate of the Insurance Company are not applicable in this case looking to the facts and circumstances of the case.
15. So, in view of the above discussion when the Insurance Company has failed to prove that there was a material concealment of Pre-existing disease by the complainant in the alleged proposal form, then Insurance Company has no right to repudiate the claim of the complainant but Insurance Company has repudiated the claim which cannot be said to be justified and therefore, according to my considered opinion the impugned repudiation made by the Insurance Company vide letter dated 19.09.2012 of the complainant claim cannot be said to be justified and accordingly impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Surat (Additional), in Additional Case No. 677/12 with 31.01.2015 cannot be said to be perverse and erroneous and therefore, the present appeal filed by the appellant Insurance Company deserves to be dismissed. Hence, I passed the following final order.
ORDER
1. The present Appeal No. 798 of 2015 filed by Appellant Reliance General Insurance Company Limited is hereby dismissed.
2. The impugned judgment and order passed by the Learned Consumer Disputes Redressal Forum, Surat (Additional), in Additional Case No. 677/2012 dated 31.01.2015 is hereby confirmed in this appeal.
K.Navlakha A/15/798 Page 11 of 123. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No.798 of 2015, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with occurred interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
4. No order as to costs.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Forum, Surat (Additional), for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 18th January 2022.
[I. D. Patel] Judicial Member.
K.Navlakha A/15/798 Page 12 of 12