Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant alongwith his wife Smt.Karamjeet Kaur in order to cover the risk in the event of any ailment in future purchased the Easy Health Group Insurance Policy from Opposite Parties vide policy No. 120/100/12001/2016/A006370/207 valid for the period 23.03.2015 to 23.03.2018 for sum insured of Rs.5 lakhs and said policy was renewed from time to time. At the time of purchasing the policy in question, Smt.Karamjeet Kaur wife of the complainant was hale and hearty and she never suffered from any of the disease. On 08.01.2016 Smt.Karamjeet Kaur suffered some heart problem and for which she got treatment from Hero DMC Heart Institute, Ludhiana. Again on 16.06.2017 she was again suffered from CSF Rhinorrhea-Right Sided (Spontaneous) for which she was admitted in SPS Hospital, Ludhiana and in this way, Smt.Karamjeet kaur remained admitted in hospital from 16.06.2017 to 28.06.2017 and spent expenses of Rs.3,14,654/-. At the time of admission in the hospital, the complainant informed the Opposite Parties and requested for cashless service in pursuance to the policy, but the Opposite Parties refused to do so. After discharge from the hospital, the complainant lodged the claim with the Opposite Parties for the reimbursement of their medical expenses and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay a sum of Rs.3,14,654/- being the amount of hospital bill and Rs.5890/- on account of medical bills to the complainant in terms of the above referred policy alongwith the damages to the tune of Rs.1 lakhs on account of compensation due to mental tension and harassment caused by the complainant or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is admitted that the complainant purchased policy in question for himself as well as for her wife Smt.karamjit Kaur, but the benefit under the policy are subject to certain conditions and exclusions which have been clearly specifically and categorically mentioned under the policy wording. It is further submitted that in the proposal form, the proposer has not given the correct information regarding the Episodic Paliptation since 20 years (Ailment0 which may have impact on policy. The claim was forwarded to MU for opinion and policy was cancelled for non disclosure and the claim was also rejected. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Party has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence her affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C13 and Mark A to Mark F and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit Ex.OPA alongwith copies of documents Annex.OP1 to Annex.OP3 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party Further contended that at the time of issuance of the said policy to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. Further contended that the complainant alongwith his wife Smt.Karamjeet Kaur in order to cover the risk in the event of any ailment in future purchased the Easy Health Group Insurance Policy from Opposite Parties vide policy No. 120/100/12001/2016/ A006370/207 valid for the period 23.03.2015 to 23.03.2018 for sum insured of Rs.5 lakhs and said policy was renewed from time to time. At the time of purchasing the policy in question, Smt.Karamjeet Kaur wife of the complainant was hale and hearty and she never suffered from any of the disease. On 08.01.2016 Smt.Karamjit Kaur suffered some heart problem and for which she got treatment from Hero DMC Heart Institute, Ludhiana. Again on 16.06.2017 she was again suffered from CSF Rhinorrhea-Right Sided (Spontaneous) for which she was admitted in SPS Hospital, Ludhiana and in this way, Smt.karamjeet kaur remained admitted in hospital from 16.06.2017 to 28.06.2017 and spent expenses of Rs.3,14,654/-. At the time of admission in the hospital, the complainant informed the Opposite Parties and requested for cashless service in pursuance to the policy, but the Opposite Parties refused to do so. After discharge from the hospital, the complainant lodged the claim with the Opposite Parties for the reimbursement of their medical expenses and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that benefit under the policy are subject to certain conditions and exclusions which have been clearly specifically and categorically mentioned under the policy wording. It is further submitted that in the proposal form, the proposer has not given the correct information regarding the Episodic Paliptation since 20 years (Ailment0 which may have impact on policy. The claim was forwarded to MU for opinion and policy was cancelled for non disclosure and the claim was also rejected.
8. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next plea raised by Opposite Party is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
- We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the Opposite Party is that since the complainant has concealed the pre existing disease regarding the old 20 years old disease of the patient, so her claim has rightly been repudiated by the Opposite Parties as per the terms and conditions of the policy. On the other hand, ld.counsel for the complainant has repelled the aforesaid contention of the complainant on the ground that at the time of purchasing said policy, the complainant disclosed the Opposite Party regarding everything and as such, the complainant has not concealed any fact from the Opposite Parties. Moreover, if the proposer of the policy was suffering from any diseases prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”
11. Furthermore, as per the documents produced by the Opposite Parties themselves, at the time of obtaining the policy, the complainant was having the age of 46 years with date of birth as 01.03.1970 (meaning thereby which is more than 45 years, so it was the bounden duty of the Opposite Parties-Insurance Company to get the complainant medically examined before issuing the policy in his name who was above 45 years of age. In support of his contention Ld.counsel for the complainant placed reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-
“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”
However, the opposite party has not placed on record any evidence that before issuing the policy they ever got medically examined the insured . So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.
12. The law on the question of applicability of exclusion clause, suppression of the relevant factually position regarding any pre-existing disease from which the insured was suffering and the treatment thereof, if any, received from any hospital etc., has been the subject matter of number of decisions by the Hon’ble National Commission as also by the Hon’ble Supreme Court of India. In nutshell, the settled position is that it is the duty of the insured to disclose the above mentioned information to the insurance company at the time of buying the insurance policy and, if the same was not disclosed by the insured, the insurance company was well within their rights to repudiate the claim. However, the insured was under no obligation whatsoever to foresee, assess and apprehend the probable and future complications, which might or could suddenly arise from the earlier disorder. In this regard, the Hon’ble Supreme Court in their latest judgment in case Civil Appeal No.8386 of 2015 titled as “Manmohan Nanda Vs. United India Assurance Co. Ltd. & Anr.” decided on 06.12.2021, has held the object of buying a Medi-claim Policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and that may occur overseas, “If the insured suffers a sudden sickness or ailment, which is not expressly excluded under the Policy, a duty is cast upon the insurer to indemnify the appellant for the expenses incurred there under”. In this regard, recently Honble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.482 of 2019, decided on 10.01.2022 in case titled as Bajaj Allianz General India Insurance Company Versus Kewal Singh Kainth also held so.
13. In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
15. The complainant in his complaint has claimed the reimbursement of medical expenses upto the extent of Rs.3,14,654/- Plus Rs.5890/- total amounting to Rs.3,20,544/- and this amount spent by the complainant on treatment has nowhere denied by the Opposite Party by filing any cogent and convincing evidence and hence, the claim of the complainants to that amount is genuine and we allow the claim of the complainant accordingly.
16. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant and direct Opposite Party-Insurance Company to pay the amount of Rs.3,20,544/- (Rupees three lakh twenty thousands five hundred forty four only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 27.09.2017 till its actual realization. The compliance of this order be made by Opposite Party-Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
17. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
