Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that he purchased health insurance policy bearing No.110600/11122/ AA00247565 i.e. Optima Restore Floater Two years Policy valid for the period w.e.f 19.06.2016 to 18.06.2017 from Opposite Party No.1 which was lateron renewed w.e.f. 29.06.2017 to 28.06.2019 from Opposite Party No.2 and for this purpose, the complainant spent approximately Rs.1,50,000/- as premium for both the policies. Further alleges that during the policy period, the complainant felt uneasiness and due to this, he got himself checked up from Dr.Deepak Garg, DM Cardiology and the said hospital advised the complainant to undergo Angiography test which conducted on 06.05.2019 and spent Rs.22,366/-. After that, the complainant lodged claim for the reimbursement of his claim with the Opposite Parties and submitted all the required documents with the Opposite Parties vide registered Claim ID No.1042779 dated 11.06.2019, but the Opposite Parties declined the claim of the complainant vide letter dated 29.08.2019 alleging that the had been suffering from ‘Diabetes and Hypertension since 5 years i.e. before policy inception, which is altogether wrong and denied. Lateron, the medical staff of Moga Medicity Hospital has clarified that the previous alleged reported history of 5 years was clerical mistake and submitted that the diabetes and hypertension were detected only in the month of June 2018 first time. The repeated requests have been made to the Opposite Parties to make the payment of the medical bills, but the Opposite Parties did not pay any heed to the request of the Complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to pay the amount of Rs.22,366/- on account of medical expenses
- The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
- The cost of complaint amounting to Rs.15,000/- may please be allowed.
- Or any other relief to which this District Consumer Commission, may deem fit be also granted.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The complainant had intentionally and with malafide intention, suppressed the material facts and for which the complainant is not entitled to get any kind of relief and compensation. The present complaint is liable to be dismissed as the claim of the complainant has been rejected on the ground of Non Disclosure of Material Facts by the complainant with respect to him suffering from HTN and Diabetes prior to inception of policy and accordingly outside the ambit of consideration by the respondent since the claim is not payable as per the terms and conditions of the policy. On merits, the Opposite Party No.1 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The complainant has not come to this District Consumer Commission with clean hands and has rather disclosed the true facts. It is worthwhile to mention here that the complainant had committed fraud against Opposite Party No.1 by non disclosure and concealment of facts under section VI j of policy terms and conditions and due to this reason, the claim of the complainant was rejected. However, it is a matter between the complainant and Opposite Party No.1 and therefore, Opposite Party No.2 is not liable for the same. On merits, the Opposite Party No.2 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C13 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence affidavit of Mr.Manoj Kumar Prajapati Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/14 and similarly, Opposite Party No.2 tendered into evidence the affidavit of Sh.Vishavdeep Sharma Ex.OP2/1 and thereafter, the Opposite Parties closed their respective evidence.
6. We have heard the ld.counsel for the parties, perused the written submissions of Opposite Party No.1 and gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that 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 the complainant purchased health insurance policy bearing No.110600/11122/AA00247565 i.e. Optima Restore Floater Two years Policy valid for the period w.e.f 19.06.2016 to 18.06.2017 from Opposite Party No.1 which was lateron renewed w.e.f. 29.06.2017 to 28.06.2019 from Opposite Party No.2 and for this purpose, the complainant spent approximately Rs.1,50,000/- as premium for both the policies. Further alleges that during the policy period, the complainant felt uneasiness and due to this, he got himself checked up from Dr.Deepak Garg, DM Cardiology and the said hospital advised the complainant to undergo Angiography test which conducted on 06.05.2019 and spent Rs.22,366/-. After that, the complainant lodged claim for the reimbursement of his claim with the Opposite Parties and submitted all the required documents with the Opposite Parties vide registered Claim ID No.1042779 dated 11.06.2019, but the Opposite Parties declined the claim of the complainant vide letter dated 29.08.2019 alleging that the had been suffering from ‘Diabetes and Hypertension since 5 years i.e. before policy inception, which is altogether wrong and denied. Lateron, the medical staff of Moga Medicity Hospital has clarified that the previous alleged reported history of 5 years was clerical mistake and submitted that the diabetes and hypertension were detected only in the month of June 2018 first time. The repeated requests have been made to the Opposite Parties to make the payment of the medical bills, but the Opposite Parties did not pay any heed to the request of the Complainant.
8. 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 the complainant had intentionally and with malafide intention, suppressed the material facts and for which the complainant is not entitled to get any kind of relief and compensation. The present complaint is liable to be dismissed as the claim of the complainant has been rejected on the ground of Non Disclosure of Material Facts by the complainant with respect to him suffering from HTN and Diabetes prior to inception of policy and accordingly outside the ambit of consideration by the respondent since the claim is not payable as per the terms and conditions of the policy.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No. 1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party No. 1 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 case titled as Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has and observed to the following effect:
“..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants.”
Further, 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.”
Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at 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.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Party No.1 is presumed to be correct, the next plea raised by Opposite Party is that the claim of the complainant has been rejected on the ground of Non Disclosure of Material Facts by the complainant with respect to him suffering from HTN and Diabetes prior to inception of policy and accordingly outside the ambit of consideration by the respondent since the claim is not payable as per the terms and conditions of the policy. But however, the contention of the complainant is that earlier the treating hospital of Moga Medicity Hospital on 05.05.2019 has mentioned that the complainant was suffering from HTM and Diabetes from the last 5 years, but lateron vide certificate dated 07.05.2019 (Ex.C8) ahs specifically mentioned that “the patient named Mr.Vinod Kumar was suffering from DM-II/HTYN since approximately 1years. Previous reported history of five years was clerical mistake. Kindly consider this.” To rebut this certificate, the Opposite Parties has failed to produce any iota of evidence regarding the alleged concealment of these facts.
11. The ground on which the claim of the complainant has been repudiated that the complainant was suffering from hypertension and diabetes prior to the issue of the insurance cover in dispute. But hypertension and diabetes is not a material disease, therefore, non disclosure thereof is not a concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-
“So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.
We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease. On the other hand, the rulings cited by ld.counsel for Opposite Party No.1 –Insurance Company are not applicable to the facts of the present case and the same are distinguished.
12. In such a situation the repudiation made by Opposite Party No.1 regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters 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.
13. From the aforesaid discussion, it transpires that Opposite Party No.1-Insurance Company has wrongly and illegally repudiated the genuine claim of the complainant, as such, we direct Opposite Party No.1 Insurance Company to reimburse the medical bills of the complainant amounting to Rs.22,366/- (Rupees twenty two thousands three hundred sixty six only) alongwith interest @ 8% per annum from the date of filing the complaint i.e. 09.09.2019 till its actual realization. Opposite Party No.1-Insurance Company is also directed to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000/- (five thousands only). The complaint against Opposite Party No.2 stands dismissed. The compliance of this order be made by Opposite Party No.1-Insurance Company within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Reason for delay in deciding the complaint.
14. This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:04.04.2022.
