KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the judgement dated 21/09/2022, passed by the Ld. DCDRF, Raiganj, Uttar Dinajpur, in CC/64/2019.

The Appellant’s case in brief is that, her husband being a consumer of the Union Bank, Raiganj Branch, who had a tie-up with the Respondent nos.1 & 2/Insurance Company, had influenced the Appellant, to opt for a Health Insurance Policy, in her name. The Appellant had narrated that, 12 years prior, when she had conceived for the first time, serious gynaelogical problems had occurred, following which her first baby, had to be aborted and she also had to undergo kidney dialysis, at that time. Thereafter, she had been advised, for a medical check-up, appointed by the Respondent/Insurance Company. She had also narrated that, she had been fully cured and subsequently had given birth to a daughter, who was 8 years of age, at that time. Being satisfied, the Respondent/Insurance Co., called her to the Union Bank, where she had to put a signature in the Policy Agreement Paper, filled up by the Respondent no.4. The Appellant had then been handed over the Policy Certificate being no. 01076694 for Health Insurance for a sum of Rs.5,00,000/- (Rupees five lakhs) only.

During the first part of 2018, the Appellant started suffering from physical problem and after consultation with Dr. Suparno Roy of Siliguri, she had been diagnosed with breast cancer. After detection of cancer, the Appellant had informed the Respondent/ Insurance Company and then had proceeded to Tata Memorial Hospital, Mumbai, for her treatment. The mammography and biopsy done in the said hospital, further confirmed and her treatment began in Tata Memorial Hospital and one identification no. being CR/11344, had been allotted to her. 4 chemotherapies had been administered to her and surgery had been done. After surgery further 4 chemotherapies had been administered to her. She had been advised 17 cycles of maintenance trastuzumab up to 22/06/2018. During such treatment, the Appellant spent more than Rs.5,00,000/- (Rupees five lakhs) only, for which she had lodged a claim before the Respondent/Insurance Co., by submitting relevant documents of her treatment. But she received a repudiation letter dated 29/10/2018, on the ground that she had failed to disclose her previous illness in the Proposal Form. On 30/10/2018, she had written a letter to consider her claim, but vide letter dated 12/11/2018, the Respondent/Insurance Co., informed, that their decision, remained unchanged. On 12/12/2018, the Appellant further made a prayer before the Claim Review Committee, of the Respondent/Insurance Co. In spite, receiving the letter there was no response from the above Committee and the Appellant on 15/01/2019, wrote a letter to Insurance Ombudsman. On 07/02/2019, the Appellant received a letter dated 24/01/2019, from Insurance Ombudsman, wherein she was directed to send all the relevant documents within 30 days. The Appellant vide letter dated 05/03/2019, sent all the documents to the Insurance Ombudsman. On receiving no response, the Appellant had further issued a Reminder to the Insurance Ombudsman, vide letter dated 16/04/2019. On 27/04/2019, she received a letter dated 10/04/2019, wherein she was requested to send her written consent, in terms of Rule 13(2) of the Insurance Ombudsman Rules, 2017. She then filled up the Annexture – VI- A and sent the same to the Insurance Ombudsman on 02/05/2019. In the meanwhile, the Appellant received a letter dated 24/12/2018, from the Respondent no.1/Insurance Co., on 11/05/2019. On 20/05/2019, the Appellant had replied to the letter, by stating that she had given written consent, in terms of Rule 13(2) of the Insurance Ombudsman Rules, 2017, to the Insurance Ombudsman. On receiving no response, the Appellant issued a Legal Notice dated 06/07/2019, to all the Respondents including the Insurance Ombudsman. The Respondents 1 & 2/ Insurance Co., replied vide letter dated 22/07/2019, that they had given consent to the Insurance Ombudsman and the matter was sub-judice. The Insurance Ombudsman also sent a letter to the Appellant, stating that they could not consider the claim as the said claim had been preferred by an advocate/third party. Finding no alternative, she had filed a claim before the Ld. DCDRF, Raiganj, Uttar Dinajpur, with necessary prayers.

The Respondent nos.1&2/Insurance Co., appeared to contest the claim by filing written version, wherein they had denied most of the claims made by the Appellant. It is their specific case, that the Appellant, had obtained the Policy by concealing her medical history where a specific question for diabetes, hypertension and disease of the kidney, urinary tract, had been concealed in the Proposal Form. It was further stated, that from the medical documents of Tata Memorial Hospital, the Appellant suffered from hypertension from 34 years of age and was on medication. That apart, the Appellant had family history of cancer. In view of such concealment, by the Appellant and the Contract of Insurance, being based on utmost good faith, such concealment by the Appellant had rendered the Insurance Policy null and void, under the Provisions of Section 45 of the Insurance Act, 1938.

The Respondents 3&4, did not appear to contest the claim, following which, the case had been heard ex-parte, against them.

After going through the materials and evidence on record, the Ld. DCDRF, Raiganj, Uttar Dinajpur, had dismissed the case on contest, against the Respondents 1&2 and ex-parte, against the Respondents 3 & 4, vide the impugned order.

Being aggrieved by the impugned order, the Appellant preferred this instant appeal, that the Ld. DCDRF, Raiganj, Uttar Dinajpur, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant, at the time of final hearing, had argued that the Respondents 1&2, vide their repudiation letter, had repudiated the claim only on the ground of concealment of the disease of kidney, renal calculi, bladder and urinary tract, whereas in the paragraph 5 of written version, they had also relied on the concealment of diabetics, raised blood sugar and urine, high blood pressure, hypertension and the disease of kidney, renal calculi, bladder and urinary tract, which appears to be an afterthought. Moreover, the Proposal Form had been filled up by the Respondent no.4, who did not appear to contest the claim and therefore the unchallenged testimony against the Respondent no.4, has to be accepted. It was further argued that as per Section 45 of the Insurance Act, the allegation of fraud cannot be implied and has to be proven by the Respondents. Furthermore, he had submitted that the Appellant’s affliction of breast cancer could not be related to a history of dialysis, 12 years back or high blood pressure. He has relied in the judgements passed in Sulbha Prakash Motegaonkar & Ors. Vs. LICI, passed by the Hon’ble Supreme Court on 05/10/2015, in LICI Vs. Jyotsana Rawal, passed by the Hon’ble NCDRC on 08/05/2018, in Santosh Kanwar Vs. LICI, passed by the Hon’ble NCDRC on 09/09/2008 and JSK Industries Pvt. Ltd. Vs. Oriental Insurance Co. Ltd. reported in (2022) 4 CPJ 43.

Ld. Advocate for the Respondents 1 & 2, had countered that the Appellant had concealed the history of hypertension and the dialysis in the Proposal Form, following which the Provisions of Section 45 of Insurance Act, had been invoked, leading to the cancellation of the Policy. He had relied in the judgements, passed in LICI Vs. Joyti Sudhir in Revision Petition no.1134 of 2016 by the Hon’ble NCDRC, on 20/10/2016, in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. reported in (2009) 8 SCC 316, in Bajaj Allianz Life Insurance Company Ltd. Vs. Dalbir Kaur reported in 2020 SCC Online SC 848, in LICI Vs. G M Channabasama reported in (1991) 1 SCC 357, in LIC Vs. Srimati Maya Debi in Revision Petition 1327 of 2008 passed by the Hon’ble NCDRC on 20/8/2015, in ICICI Prudential Life Insurance Co. Ltd. Vs. Lalitha Jain reported in 2015(2) CPR(NC) 199, in Monica Jain Vs. LICI in FA 260 of 2008, in Reliance Life Insurance Co. Ltd. & Anr. Vs. Rekha Ben, Naresh Bhai Rathore in Civil Appeal No.4261 of 2019, by the Hon’ble Supreme Court on 24/04/2019, in LIC Vs. Manish Gupta in Civil Appeal No.3944 of 2019 SLP © No.5001/2019 passed by the Hon’ble Supreme Court on 15/04/2019, in United India Insurance Co. Ltd. Vs. M K J Corporation reported in (1996) 6 SCC 428 and Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. reported in (2000) 2 SCC 734.

The facts of the case are not disputed. The only point of dispute, is whether the repudiation by the Respondent/Insurance Co. is valid and legal, or not. Therefore, the short question, that needs to be decided is whether the repudiation on the basis of the non-disclosure of the previous medical history can be sustained or not.

In this regard, the diagnosis of the Appellant with breast cancer and her treatment at Tata Memorial Hospital, Mumbai, is not disputed. The Respondent/Insurance Co., had raised this non-disclosure of the dialysis and hypertension, in the Proposal Form, had attracted the Provisions of Section 45 of the Insurance Act, leading to the repudiation of the claim of the Policy. But in Sulbha Prakash Motegaonkar & Ors. Vs. LICI, passed by the Hon’ble Supreme Court, on 05/10/2015, it had been decided that the ischemic heart disease and myocardial infarction had nothing to do with lumbar spondylitis with PID with sciatica. Similarly, in the instant case, dialysis and hypertension, does not appear to have any connection with the onset of breast cancer. Therefore, the onus was upon the Respondent/Insurance Co., to corelate the omissions mentioned above, to the breast cancer, for which the claim application had been filed, to prove the applicability of the invocation of the Provisions of Section 45 of the Insurance Act. But, in this regard, no such evidence is forthcoming from the Respondent/Insurance Co., the failure of which leads this Commission to presume that the invocation of the Provisions of Section 45 of the Insurance Act was not only unjustified, but also the subsequent repudiation letter cannot be sustained. Simply, because certain ailments which may have escaped the memory of the insured, does not mean that the Insurance Co., should capitalize on it and by invoking the Provisions of Section 45 of the Insurance Act, should repudiate the claim. In other words, it would also mean, that any claim within the period, prescribed in the Provisions of Section 45 of the Insurance Act, would be subject to microscopic scrutiny by the Insurance Companies and would follow by the mechanical application of the Provisions of Section 45 of the Insurance Act, to deprive the consumers from their rightful claims. Therefore, on this ground itself the repudiation by the Respondent/Insurance Co. cannot be sustained.

As regards the argument, raised on behalf of the Appellant, that the Respondent/ Insurance Company, had deviated from the repudiation letter, while filing the WV, it can be stated that the reasons of the repudiation, had simply been enlarged, by including similar omissions in the Proposal Form. Therefore, it cannot be treated as deviation, so as to cause prejudice or to create a totally new case, against the Appellant. Thus, the application of the principles, percolating from the judgement, JSK Industries Pvt. Ltd. Vs. Oriental Insurance Co. Ltd. reported in (2022) 4 CPJ 43, cannot be made. In respect to the contention, that the Respondent No.4, did not appear to contest, therefore, the evidence of the Appellant should be accepted as unchallenged, it can be stated, that it is settled law, that the entries in the Proposal Form, is the sole responsibility of the maker and cannot be shifted upon the agent/writer. Hence, this contention of the Appellant also cannot be accepted.

 In view of the above observations, the application of the rulings cited above, finds no application, in view of the peculiar facts of the case. However, with the Ld. DCDRF, Raiganj, Uttar Dinajpur, dismissing the claim vide the impugned order, merely on technical and legal grounds, the case ought to be remanded to the Ld. DCDRF, Raiganj, Uttar Dinajpur, for deciding afresh, on the quantum of compensation, by allowing both the parties to lead evidence, in respect of their contention. As a result, the instant appeal succeeds.

It is therefore,

ORDERED

That the instant appeal be and the same is allowed on contest, but without cost.

The impugned order is hereby set aside. The Ld. DCDRF, Raiganj, Uttar Dinajpur is directed to comply with the directions, mentioned in the body of the judgement.

Copy of the Order be sent to the parties, free of cost.

Copy of the Order be sent to the Ld. DCDRF, Raiganj, Uttar Dinajpur, for necessary information.