State Consumer Disputes Redressal Commission
Sachin And Other'S vs Bajaj Allianz Gen. Insu. Co. And Other'S on 3 September, 2016
M.P.STATE CONSUMER DISPUTES REDRESSALCOMMISION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
Appeal No. 196/2009
Sachin Jain and others ... Appellants
Vs.
Bajaj Allianz General Insurance Co. Ltd. ... Respondents
BEFORE;
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
COUNSEL FOR PARTIES:
SHRI DEEPESH SHUKLA, LEARNED COUNSEL FOR APPELANTS.
SHRI RAVINDRA TIWARI, LEARNED COUNSEL FOR RESPONDENTS.
ORDER
( PASSED ON 03.09.2016) The following order of the Bench was delivered by Smt. Neerja Singh, Member.
This appeal is by the complainant, aggrieved by the order dated 06.12.08, passed by District Consumer Disputes Redressal Forum, Katni in CC No. 132/2008, dismissing his complaint against the respondent, Bajaj Allianz General Insurance Co. Ltd., (hereinafter referred to as the Insurance Company).
2. The case of the appellant, in brief, is that he took a policy (Familycare) for his family from the respondent-Insurance Company. His daughter Isha Jain, (hereinafter referred to as the : 2 : insured), who was born on 25.12.04, was also covered under the policy, which commenced from 9.4.05. The policy expired on 8.4.06. He took a second policy prior to the expiry of the first policy and its duration was from 24.8.05 to 23.8.06. The third policy was from 24.8.06 to 23.8.07 and the fourth policy was from 24.8.07 to 23.8.08. The appellant states that at the age of 5 months, his daughter suffered from Meningitis, for which she was admitted in hospital. After recovering from meningitis, his daughter's hearing was impaired and she had to have a surgery in which a cochlear machine was installed. He had to spend Rs.7,35,000/- in her treatment. He filed a claim with the respondent Insurance Company for Rs.5,25,000/-, which was repudiated on 12.6.08.
3. The respondent-Insurance Company states that the insured was suffering from hearing problem since birth. This fact was suppressed by the appellant at the time of taking the policy. They aver that the appellant was aware of his daughter's ailment. The appellant has himself stated that she was admitted in hospital on 21.5.05. The discharge summary shows that she was not advised for a cochlear implant. They further state that since the appellant knew that heavy expenditure would be : 3 : incurred in her treatment, he continued taking policies from 9.4.05 to 23.8.08.
4. The District Forum held it to a case of suppression of pre-existing disease and held that the disease should have been disclosed in the policies taken in 2006 and 2007, when the insured amount was enhanced from 1 lac to 5 lacs.
5. Heard.
6. We have perused the repudiation letter of the insurance company, dated 12.6.08. The reason mentioned for the repudiation is reproduced below -
'The Discharge summary of Sagar Apollo Hospital States that the patient is diagnosed of having Bilateral Profound sensorineural Deafness which is a congenital anomaly, prior to the inception of the policy and was not declared in the proposal form, hence the claim is repudiated.'
7. A perusal of the medical papers filed on record show that the insured was admitted in hospital on 6.5.05 and diagnosed with meningitis. The documents also shows that a cochlear implant was done on 8.5.08. The history given in the Discharge summary of Sagar Apollo Hospital,Banglore, is relevant and is reproduced below-
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' HISTORY C/o decreased hearing since 5 months of age.
She had an episode of pyogenic meningitis when she was 5 months old (6.5.05) Parents complained of decreased hearing (Bilaterally) following that episode. She has been using hearing aid since 2 years.
Co inability to speak due to decreased hearing No h/o fever/cough/vomiting PAST HISTORY Nothing significant. '
8. It is very apparent that the difficulty in hearing was not a congenital problem. It developed after an episode of meningitis. Hence, when the policy was taken on 9.4.05, there was no pre-existing disease. We therefore find the ground taken for the repudiation to be baseless. Not a single document is filed by the Insurance Company to support their allegation that the disease was congenital and prior to the inception of the policy.
9. During arguments, the learned counsel for the respondent-Insurance Company took a new stand and argued that the inception of the policy should be taken to be 24.8.05. Since the insured had already had meningitis on 21.5.05 and it was in the appellant's knowledge that her hearing was impaired, it will be considered a pre-existing disease when the policy was : 5 : taken on 24.8.05 and as per the Exclusion clause C1, no claims for any medical condition which existed before the commencement of the policy period are payable unless the policy has existed for a continuous period of 4 years without break.
10. The policies taken by the appellant are as under :-
POLICY PERIOD SUM INSURED 1) 9.4.05 to 8.4.06 1,00,000/- 2) 24.8.05 to 23.8.06 1,00,000/- 3) 24.8.06 to 23.8.07 5,00,000/- 4) 24.8.07 to 23.8.08 5,00,000/-
11. The first policy started on 9.4.05 . Before it expired, the appellant had taken a second policy which continued till 23.8.08. Hence the policies continued without break from 9.4.05. Learned counsel for the insurance company vehemently argued that the first policy had expired on 8.4.06 and was not continued. The policy taken on 24.8.05 was a new policy which was later continued.
12. To resolve the issue whether the second policy would be considered a new policy, this Commission, on 22.7.14, directed the learned counsel for the Insurance Company to place before us the proposal form of the policy taken on 24.8.05, if the : 6 : Insurance Company considered it a new policy. After taking repeated adjournments, on 22.9.15 the learned counsel submitted that the Insurance Company is not in a position to place the said proposal on record nor will it be possible for it to do so in the future.
13. The inability of the Insurance Company to place any proposal form before us leads us to draw the inference that the policy taken on 24.8.05 was not a new policy and the only proposal form filled was when the first policy was taken on 9.4.05.
14. As it is evident that the first policy would be considered to be of 9.4.05 and all other policies would be continuation of the first policy, the question of suppression of pre-existing disease does not arise since the insured had no medical problem prior to 9.4.05.
15. Learned counsel for appellant has relied on the judgment of the Hon'ble National Commission in the case of Harjeet Kaur v National Insurance Co. Ltd. & Ors., III (2009) CPJ 196 (NC), where it was held that in hindsight every one realizes that the symptoms were indicative of a disease, but the Insurance Companies cannot repudiate claims if the insured is unaware of the disease they suffer.
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16. He also relied on judgment of the Hon'ble National Commission in the case of Oriental Insurance Co. Ltd. vs. Baby Simran Kaur, II (2014) CPJ 515 (NC), where it was held that if a person suffers from ailment in the internal organs of body it would be an internal congenital disease and the exclusion clause would not be attracted.
17. In the instant case, the hearing impairment suffered by the insured was not congenital. The parents were not aware that the child's hearing had been affected till some time after she recovered from meningitis. The Insurance Company incorrectly repudiated the claim holding the impairment to be congenital and pre-existing.
18. In the result, the appeal succeeds and is allowed. The respondent Insurance Company is directed to pay to the appellant, the sum insured, Rs.5,00,000/-. The respondent shall also pay 6% interest on this amount from the date of complaint i.e. 1.8.08 . No order as to costs.
(JUSTICE RAKESH SAKSENA) (SMT. NEERJA SINGH)
PRESIDENT MEMBER