State Consumer Disputes Redressal Commission
The General Manager, Religare Health ... vs Shyam Sunder on 7 September, 2022
FA NO./250/2017 D.O.D.:07.09.2022
RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 11.05.2017
Date of hearing: 14.07.2022
Date of Decision: 07.09.2022
FIRST APPEAL NO.- 250/2017
IN THE MATTER OF
RELIGARE HEALTH INSURANCE CO. LTD.,
Through its General Manager,
GYS Global, Plot No. A-3, A-4, A-5,
Sector-125, Noida, U.P. 201301.
(Through: Ms. Suman Bagga & Associates)
...Appellant
VERSUS
MR. SHYAM SUNDER (DECEASED)
Through its Legal Heirs,
1. MRS. SARITA AGGARWAL,
W/O LATE MR. SHYAM SUNDER AGGARWAL
2. MR. ANUP AGGARWAL,
S/O LATE MR. SHYAM SUNDER AGGARWAL
BOTH R/O 576, GALI LODHAN,
KUCHA PATI RAM, SITA RAM BAZAR,
DELHI.
(Through: Mr. Vijay Kumar Gupta, Advocate)
...Respondents
DISMISSED PAGE 1 OF 8
FA NO./250/2017 D.O.D.:07.09.2022
RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
PRESIDENT
JUDGMENT
1. The facts of the case, necessary as per the District Commission record are:
"On 24.03.2013 official of the O.Ps visited the house of the complainant and convinced to taken a health insurance policy and complainant had taken Health Insurance Policy bearing No. 10020005 with the O.Ps which was valid w.e.f. 28.03.2014 at the time of taken policy the medical officials of O.Ps examined complainant. It is alleged that the complainant has been using the medical policy of the O.Ps without any break for the last about two years and the policy of the complainant aforesaid was valid upto 28.03.2014 and the same was renewed again issued dated 31.03.2014 and new policy No 10020005 was issued in favour of the complainant valid upto 28.03.2015. On 31.08.2014 complainant had fallen at home and sustained injury to right hip with pain swelling/ deformity over same, shortening present, external rotation present and was admitted in Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital, Delhi It is alleged that even the officials of concerned of the hospital informed the office of O.Ps and also asked as to why no response was given but in response the officials of O.Ps informed the hospital officials that they will look into the matter after due investigation to O.P for pre- authorization request pertaining to health insurance of complainant by hospital in reply vide mail dated 03.09.2014, O.Ps wanted some information with consent letter to verify and collect certified copy of indoor case paper, history sheet and any other relevant documents. On 04.09.2014 O.Ps sent DISMISSED PAGE 2 OF 8 FA NO./250/2017 D.O.D.:07.09.2022 RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER a another letter to hospital against the said policy informed with remark "Cash Less Hospitalization cannot be approved as per terms and conditions of policy" as Non-Disclosure of Barreit Esophagus at the time of taking policy first with the company." It is alleged that complainant remained in the hospital and was discharged on 05.09.2014 and hospital charges a sum of Rs.82,230/- from complainant which was paid by the complainant in cash and after discharged medical bills of Rs.23,334/-. It is further alleged that even thereafter son of the complainant namely Sh. Anup Aggarwal visited the office of the O.Ps numbers of time and requested to pay the claim amount but all in vain. The complainant has also sent a legal notice dated 24.03.2015 but to no avail. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.82,230/- and Rs.23,334/- for medical expenses alongwith interest @ 18% p.a. and also to pay cost and compensation as claimed."
2. The District Commission after taking into consideration the material available on record passed the order dated 31.03.2017, whereby it held as under:
"The controversy existing in the present case is as to whether the repudiation by the insurance company was justified or not. The bare perusal of reply filed on behalf of O.Ps would clearly indicate that the claim was rejected because the insured made false and untrue statement in the proposal form, as to whether any one of the family has been hospitalized or diagnosed with any illness during last 48 months. The answer was given in the negative. Whereas according to the medical record insured was diagnosed with Barrett's Oesophagus in April, 2012 and November, 2012. On the basis of this disclosure the O.Ps rejected the claim on the basis of clause 6.1. The claim has been filed by the complainant as he sustained injury due to fall on the right hip, so this injury suffered by him, insured cannot be treated as pre-existing one. Even otherwise the pre-existing disease is one which was suffered by the insured soon before taking the policy. Above all the terms and conditions relied upon by the O.Ps were never supplied to the insured at the time of inception of the DISMISSED PAGE 3 OF 8 FA NO./250/2017 D.O.D.:07.09.2022 RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER policy. Further, the illness of diabetes cannot be termed as pre-existing disease because it is the connected with the life style of a particular person which can be controlled with traditional treatment. In case titled (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party from non disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. In another case titled III (2009) CPJ 246 (NC) United India Insurance Co. Ltd. & Anr Vs S.M.S. Tele Communications & Anr., it was held that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the terms and conditions of the insurance policy were not supplied to the complainant it was neither aware of the exclusions, nor was bound by the same. Even otherwise the disease of hypertension, CAD, HTN, DM cannot be termed as pre-existing one because hypertension with the life- style of an individual which can be controlled by ordinary treatment. In Aviva Life Insurance Claim Department Vs Sharanjeet Kaur IV (2014) CP) 124 (PUN)), death-claim was repudiated on ground of suppression of pre-existing disease. The court held that hypertension is a life style disease, easily controllable with conservative medicine. Insured not deliberately concealed material fact, repudiation was held unjustified. Insurer cannot repudiate the contract unless the fact is actually material. Insurer can avoid policy only by proving that the statement is false, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone.
Keeping in view the discussion stated above, we are of the considered view that the repudiation of claim filed on behalf of the complainant was wholly unwarranted and unjustified on the part of O.Ps which amounted to deficiency in service DISMISSED PAGE 4 OF 8 FA NO./250/2017 D.O.D.:07.09.2022 RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER We, therefore, award a sum of Rs.82,230/- with interest @ 6% p.a. from the date institution of the complaint till payment, the further award of Rs.5,000/ towards harassment mental agony loss of time and litigation cost."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Opposite Party has preferred the present appeal contending that the terms and conditions of the policy were duly supplied to the Respondent. The Counsel further submitted that the District Commission has failed to appreciate that the Respondent had concealed the fact that he was suffering from pre-existing disease namely 'Berrett Oesophagus'. The Appellant further contended that the District Commission erred in holding that the Appellant is deficient in providing its services as the claim of the Respondent was denied by the Appellant on the basis of said pre- existing disease. Pressing the aforesaid contention, the Appellant prayed for setting aside the impugned judgment.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said judgment.
5. We have perused the materials available on record.
6. The first issue before us is whether the Appellant supplied the copy of said policy to the insured in order to make him aware of the terms and conditions of the policy. It was submitted by the Appellant that the said policy along with the terms and conditions was supplied to the Respondent alongwith the policy.
7. On perusal of the record before us, we find that the Appellant has only filed copy of the terms & conditions of the policy and has failed DISMISSED PAGE 5 OF 8 FA NO./250/2017 D.O.D.:07.09.2022 RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER to find any document which shows the proof of delivery of the copy of policy alongwith terms and conditions to the Respondent. Hence, in the absence of proof of delivery, we cannot rely solely on the basis of the statement of the Appellant that he had duly provided the terms and conditions of policy to the Respondent.
8. Further, we deem it appropriate to refer to the case of Bharat Watch Company through its partners vs. National Insurance Company Ltd. reported at 2019 (6) SCC 212, wherein the Hon'ble Apex Court has held as under:
"We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant.
Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion.
DISMISSED PAGE 6 OF 8 FA NO./250/2017 D.O.D.:07.09.2022
RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER In the circumstances, the NCDRC was in error in reversing the decisions of the District Forum and the SCDRC which were grounded on a pure finding of fact that the terms of exclusion were not made known to the insured."
9. On perusal of the above settled law, it is clear that unless the insured is duly informed about the terms and conditions of the policy, the exclusionary clauses of the policy cannot be made applicable upon him. Returning to the facts of the present case, it is clear that the copy of the said policy was not supplied to the Respondent as no document has been filed by the Appellant in the present case to prove the delivery of the terms and conditions attached with the present policy. Therefore, exclusionary clauses in the said policy is not applicable in the present complaint and the Appellant was wrong in denying the claim of the Respondent on the ground that no document has been provided by the Respondent to reveal his pre- existing disease.
10. The next question for consideration before us is whether the Appellant was right in denying the claim of the Respondent on the ground that no document has been provided by the Respondent to reveal his pre-existing disease.
11. We have perused the material available on record and find that before issuing the policy, medical examination has been done by the panel of doctors upon relying on which, the Appellant had issued the policy to the Respondent. Therefore, no question of concealment of the pre-existing disease can be raised in the present case. Further, the claim against which the original complaint was filed has no connection with the pre-existing disease. Therefore, denying the claim of the Respondent on the said ground holds no merit.
DISMISSED PAGE 7 OF 8 FA NO./250/2017 D.O.D.:07.09.2022
RELIGARE HEALTH INSURANCE CO. LTD. & ANR. VS. MR. SHYAM SUNDER
12. Also, perusal of the letter dated 04.03.2015, reflects that the claim has not been repudiated till date from the side of the Appellant. Therefore, from the aforesaid discussion, we hold that the Appellant is liable to settle the claim of the Respondent as per the judgment dated 31.03.2017 passed by the District Commission.
13. Infact, we are in agreement with the reasons given by the District Commission and fail to find any cause or reasons to interfere in the findings of the District Commission. Consequently, we uphold the judgment dated 31.03.2017 passed by the District Consumer Dispute Redressal Forum (North), Tis Hazari, Delhi and further direct the Appellant to comply with the orders of District Commission within 30 days from the date of present judgment.
14. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
15. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
16. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 07.09.2022 DISMISSED PAGE 8 OF 8