West Bengal

South 24 Parganas

CC/294/2014

SHYAMAL KUMAR BHATTACHARYA S/O. Late Ananta Bhattacharya. - Complainant(s)

Versus

1.ICICI LOMBARD GENERAL INSURANCE CO. LTD. - Opp.Party(s)

AMARNATH SANYAL.

28 Apr 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _294_ OF ___2014___

 

DATE OF FILING : 7.7..2014     DATE OF PASSING JUDGEMENT: 28.4.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Dr. (Mrs.)  Shibani Chakraborty

                                                                             

COMPLAINANT             :   Shyamal Kumar Bhattacharya,s/o late Ananta Bhattacharya of 76/6/3,

           Selimpur Road, Dhakuria, P.S. Garfa, Kolkata -31.

 

-VERSUS  -

 

O.P/O.Ps                            :   1. ICICI Lombard General Insurance Co. Ltd. ICICI Lombard House,

414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai – 400025.

2.     Europ Assistance India Pvt. Ltd. 301, C Wing, Business Square, Andheri Kurla Road, Chakala, Andheri (East), Mumbai – 400093.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            It is the short case of the complainant that on 26.3.2014 complainant had applied for International Travel Insurance through on-line for himself and for his wife Chaitali Bhattachaya from ICICI Lombard General Insurance Co.Ltd. i.e. O.P-1. It has further stated that the complainant’s son in law namely Santanu Bhattacharya has a bank account at ICICI Bank being SB account no.055201500812 at Electronic City Bangalore, for which the policy was applied on-line through internet by using the complainant’s son-in-law E –mail account and the net premium money of the said policy was Rs.9276/- which was also paid on-line using the said bank account on the same date i.e. 26.3.2014. It is further stated that the complainant provided all details best known to him as on 26.3.2014 as enquired by the O.P-1 at the time of filling up the policy form from on-line. Thereafter the O.P was satisfied and issued the policy after payment of net premium money of Rs.9276/- and the said policy was valid from 30.3.2014 to 27.6.2014 mid-night. It has claimed that in the month of April 2014 the complainant and his wife Chaitali Bhattacharya ,since deceased, went to Australia but unfortunately during the said trip the complainant’s wife had to admit West Med Hospital, New South Wales, Austrelia ,herein the O.P-3 on 22.4.2014 due to sudden cardiac arrest. Complainant states that he had informed the O.P-1 ‘s claim department i.e. O.P-2 about hospitalization of his wife due to cardiac arrest on the same day over telephone and the O.P-1 acknowledged the same and later informed the complainant the claim no. M046691.49 over phone. Thereafter on 24.4.2014 again complainant informed the O.P-1’s claim department through his son-in-law about the death of his wife Chaitali Bhattacharya vide e-mail dated 24.4.2014 and further asked the O.P-2 to for payment of repatriation cost of the dead body which is also covered under the said policy. It has claimed that complainant was not friendly with  computer application, for which complainant’s son-in-law has actively participated in all official purposes and communication with the O.P nos. 1,2 and 3. It has further stated that after exchange of e-mail between the parties in the instant case O.P-2 had sent e-mail dated 26.4.2014 where they have registered two claims for the complainant’s wife Chaitali Bhattacharya ; one is for cardiac arrest and another for repatriation being claim no. M046691.49 and M046810.70 respectively . The complainant had also sent death certificate issued by the Coroner of Australia namely D Mclennan and others related important documents as asked for by the O.P nos. 1 and 2 timely for early reimbursement of the said policy claim. It has claimed that as O.P-1 was delaying in reimbursement of entire two claims the complainant’s son-in-law had to bear the entire expenses for the funeral of late Chaitali Bhattacharya issued by Blacktown City Funerals amounting to Rs.3,30,000/- more or less in Indian Currency and other expenses. It has further stated that for such ceremony of the complainant’s wife, complainant and his son-in-law had called O.P-1 for early reimbursement ,specially hospitalization expenses amounting to Rs.7,50,252.25 more or less  as per Indian Currency which is still due. Thereafter on 2.6.2014 O.P-2 has illegally repudiated the genuine and bonafide claim on the ground of pre-existing disease. Hence, this case.

            The O.P-1 is contesting the case by filing written version and has denied all  the allegations leveled against them.

            It is the positive case of the defence that the claim was repudiated on the ground of suppression of material facts and existence of pre-existence disease. It has further stated that the complainant has not disclosed the fact that she was a chronic patient of kidney disease and has suppressed the material facts about herself. If she would have disclosed this fact at the time of filling up the form on-line the Insurance company would not have given the policy at all. It ha further stated   that complainant has knowingly suppressed the material fact to gain some fraudulent benefit from the Insurance Company as it is evident from the Medical Notes of West Med Hospital, Australia D-224 dated 22.4.2014 and also from the records of passed medical hospital from family physician of the Insurance Company Dr. Susanta Sengupta dated 22.5.2014. It has strongly claimed that medical report reveals that the patient is known because of chronic kidney disease as well as anemia . It is further case of the O.P that Insurance policy is based upon contract whereby the proposal along with the first insurance premium is received upon proposer. The proposer who intend to procure an insurance policy has to disclose material details as per Insurance Act.  Thus both the policy holder and the company are bound by the terms and condition of the insurance policy which is issued by the company based upon the proposal given by the policy holder . The O.P company had to come to a conclusion that the claim for theft benefit stands repudiated.

            Points for consideration is whether the O.P nos. 1 and 2 have committed unfair trade practice and deficiency of service by repudiating the claim of the complainant.

                                                            Decision with reasons

            At the very outset, we must have to say that moot question to settle the dispute is whether repudiation on the ground of pre-existing disease is justified or not or having any nexus with the cause of death of complainant’s wife, Chaitali Bhattacharya.

            It is the submission of the Ld. Advocate of the complainant that O.P did not take any initiative for medical examination prior to accepting the policy, which is mandatory when complainant is an aged lady. On the other hand it is the contention of the O.P that in the proposal form there was three columns i.e. 13,14 and 15 ,namely pre-existing disease, medical treatment history and family doctors details respectively. But all the three columns were filled in as “N.A” i.e. “Not applicable”. This is a glaring example of suppression of material fact as per submission thrown by the Ld. Advocate of the contesting O.P and at that juncture Ld. Advocate of the O.P has also stated that if she would have disclosed the same at the time of filling up the form on-line, definitely the insurance company would  have taken necessary arrangement of medical examination and in that case if the gravity of the disease was very serious then Insurance company would not have given the insurance policy at all.

            Now we turn our eyes from the documents supplied by the complainant i.e. Photocopy Text Book of Consumer Protection Act with the Central Consumer Protection Rules including rules of different States by S.P Sengupta, wherein we find that under section 14 of the Act in para 243- repudiation of insured claim – onus – there is no denial of the legal position that the LIC or for that reason any other Insurance Company will be within its right to repudiate the insurance claim if it is able to establish that the contract of insurance was based on fraud or mis-representation or by suppression of material facts in regard to the status of health of the life assured. This has been held by the Supreme Court  in the case of P.C Chakraborty , Chairman, LIC of India (IX) 2007 SLT 533, III(2008) CPJ 78 (SC), IV(2007) ACC 773 (SC), IV(2007) CLT n229(SC) and Satwant Kaur Sandhu Vs. New India Assurance Company ltd. , VI(2009)SLT 338, IV(2009) CPJ 8(SC) and in many decisions of the Commission. However, onus to establish that there was suppression of material fact by the life assured at the time of taking the policy is on the insurance company who seeks to repudiate the insurance claim on such ground. The onus should be discharged by  leading cogent evidence rather than making an allegation in that behalf. So, it is clear that onus is upon the O.P by leading cogent evidence to establish their claim that the policy was obtained by suppressing the pre-existing disease.

            Again in the said book in page no.920 (Section 14) para 247 it has stated that repudiation for non-disclosure of pre-existing disease -  before allowing the insurer to repudiate claim, the Forum should take into consideration the following aspects:

i)       whether the pre-existing disease was within the knowledge of the insured while submitting the proposal form;

ii)    whether the death of the insured had any nexus with the pre-existing disease.

            Now, let us see the proposal Form, wherein we find that at the time of sending proposal through on-line nothing was disclosed in respect of pre-existing disease , medical treatment history as well as family doctor’s details of the columns which were answered as “Not applicable”. But it may be mentioned here that policy was taken on 26.3.2014 but from the record we find that on 28.10.2013 Smt. Chaitali Bhattacharya was examined by Dr. Susanta Sengupta who is a Consultant physician having decree of MBBS MD (General Medicine) who has noted in his prescription that patient Chaitali Bhattacharya is suffering from Anemia , hyper tension and some medicines were suggested. Prior to that she was treated on 3.10.2013 with  the said doctor. So, she has a history of some diseases which was not disclosed in the proposal form. It also appeared that Doctor also directed her to examine blood sugar and other thyroid that is why medicine was prescribed Thyromone 12.5 and due to hyper tension some medicine was also prescribed. Thus we find that at the time of taking the policy prior to approximately 5 months she was examined by Dr. Susanta Sengupta for Thyroid , Hyper tension , anemia etc and Doctor prescribed lot of medicines but the examination report is not with us. But fact remains that she had pre-existing disease which is appearing from the prescriptions appearing in the case record at page 86 and 87. So, one thing is clear that in view of the guideline  of the Hon’ble Supreme Court and Hon’ble National Commission O.P has been able to discharge their onus that the insured patient Chaitali Bhattacharya had a pre-existing disease.

            Now the vital point is whether those pre-existing diseases having any nexus with the death of the insured since the first point i.e. knowledge of patient of pre-existing disease has already been proved by that two documents.

            From the medical documents i.e. treatment sheet of West Med Hospital D-224 it appears that on 20.4.2014 it has observed that insured patient is suffering from chronic anemia and in page 99 it has written renal failure and it is very much vital that is in page no.61 on 22.4.2014 it has written that past cardiac arrest status continues 15-20 minutes that is very much vital and clearly shows that the said cardiac arrest status was suppressed by the insured patient. On 23.4.2014 Doctor has opined that Mrs. Bhattacharya has sustained very severe hypoxic pain injury as well as multi organ failure and must have myocardial infarct and impossible to recover from this stage as she was deep coma. The death certificate of New South Walls which is in page 83 ,wherefrom we find that cause of death and duration of last illness is hypoxic brain injury due to myocardial infarction . From the medical report it is also seen that insured suffered from chronic kidney disease . Thus we find that cause of death has a nexus with the disease suffered by the patient Chaitali Bhattacharya as she had a history of cardiac arrest status and chronic anemia patient ,which was not disclosed at the time of filling up proposal form which is nothing but a suppression.

            Hon’ble National Commission has held in a reported decision in 2013(12) CPR at page 647 that repudiation of mediclaim on the ground that complainant did not disclose that he had suffered from diabetes and hyper tension and thereby suppression of pre-existing ailment can vitiate insurance cover and complaint was dismissed by the Hon’ble National Commission , on a view that at the time of taking policy and subsequently also not disclosed the disease.

            Here, in the instant case we find that within a very short period i.e. not more than six months of taking the policy, complainant rushed to Australia for enjoying a trip but she had to admit to the West Med Hospital , New South Wales where she succumbed due to sudden cardiac arrest on 22.4.2014 that cardiac arrest was not a new thing because she was a patient of hyper tension as well as   anematic which leads to damage of kidney that is why she was suffering from renal failure which is appearing in page no.59. All these things clearly suggest that complainant has suppressed the material fact of pre-existing disease to the insured at the time of taking the policy for the reasons best known to them.

            The Ld. Advocate of the complainant has relied a decision reported in III 2009 CPJ 196(NC) on meticulous study we find that in the reported case Insurance company has failed to produce any evidence to prove that insured is aware the disease at the time of taking the proposal and no record for treatment prior to issuance of policy produced.

            Here , in the instant case the fact is quite different because the prescription of doctors which is appearing in page no.86-87 clearly suggests that there is evidence of pre-existing disease and definitely complainant was aware before taking the policy and filling up the proposal form. So, that judgement is not helpful to the complainant ,particularly when the medical report of the West Med Hospital has shown that she had history of cardiac attack. So, can it be believed that deceased Chaitali Bhattacharya had no knowledge about the said cardiac arrest which has been disclosed before the hospital authority and the same is appearing in the treatment sheet of West Med Hospital which we have observed. So, we find that there is a nexus of cause of death with the disease suffered by the wife of the complainant before taking the policy which are pre-existing diseases.

            It is well known to us that congestive heart failure, chronic kidney disease and anemia ,therefore, act together in a vicious circle in which each condition causes or excavate the others. Both the congestive heart failure and anemia are often under-treated. So, we hold that adequate and early detection and aggressive treatment  of congestive heart failure and chronic kidney disease and associated anemia may marketed slow progression of both the diseases.

            But in the case in hand, although it was detected within six months from taking the policy but no such steps were taken ,that is why the heart disease is a major cause of death for all people with CKD and anemia of which are interlinked with each other. So, the renal failure and chronic anemia and previous heart attack which are appearing in the treatment sheet clearly taken away untimely life of the complainant’s wife and we are sorry that the said disease although diagnosed by the doctor but same was not informed or mentioned at the time of taking the policy form that is mandatory  and that suppression causes the death of the complainant’s wife which has a clear nexus in the eye of Law.

            Hence, we are sorry to hold that repudiation is not only justified but we hold that there was suppression of material facts which we have elaborately discussed in the body of the judgement.

            Hence,

                                                                        Ordered

That the application filed under section 12 of the C.P Act is dismissed on contest against the contesting O.P’s and exparte against the O.P-3 but in the sorry state of affairs we make no order as to cost.

           

Let a plain copy of this order  be sent to the O.P through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

Ordered

That the application filed under section 12 of the C.P Act is dismissed on contest against the contesting O.P and exparte against the O.P-2 but in the sorry state of affairs we make no order as to cost.

           

Let a plain copy of this order  be sent to the O.P through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President