BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 198 OF 2016 AGAINST C.C.NO.459 OF 2014 DISTRICT CONSUMER FORUM-I HYDERABAD
Between
1. M/s. Star Health and Allied Insurance Co., Ltd.,
Represented by it’s Managing Director,
Regd., & Corporate Office, 1, New Tank Street,
Valluvar Kottam, High Road,
Nungambakkam, CHENNAI – 600034,
Tamilnadu.
2. The Branch Manager,
M/s. Star Health and Allied Insurance Co., Ltd.,
Tarnaka Branch, R/o. H.No.303/4,
Third Floor, 12-13-97, Mundra Tara Tycoon,
Tarnaka, HYDERABAD – 500017
Appellants/opposite parties
AND
B.Chidanandudu, S/o. B.Chitragudapa,
Age : 62 years, Occ: Business,
R/o. H.No.12-1-331/44B, Asif Nagar,
Dattatreya Colony, HYDERABAD – 500028
Respondent/complainant
Counsel for the Appellants M/s TLK Sharma
Counsel for the Respondent M/s YVSS Siva Sarma
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE TWENTY SIXTH DAY OF FEBRUARY
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties aggrieved by the orders of District Consumer Forum-I, Hyderabad, dated 22.06.2016 made in CC No.459 of 2014 wherein it allowed the complaint directing the opposite parties no.1 and 2 jointly and severally holding and directing to pay Rs.2,75,000/- as compensation towards settlement of the claim together with costs of Rs.10,000/- within 30 days, in default the amount of Rs.2,75,000/- shall carry interest @ 9% per annum.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the complainant availed a Health Insurance Policy with the opposite party No.2 vide Policy bearing No.P/131116/01/2013/008385 under Senior Citizens Red Carpet Insurance Policy for the period from 29.01.2013 to 28.01.2014 and the sum assured was Rs.5,00,000/-. The said policy was also covered for pre-existing diseases. At the time of obtaining the policy the complainant stated his health condition and informed to the opposite party No.2 that he has been suffering from diabetics since four years. Moreover he has submitted his medical reports and pertaining to the disease i.e., diabetes but opposite party No.2 did not receive the same stating that they do not require for the said policy. On 07.12.2013 due to pain in the chest, the complainant got admitted in Care Hospital Banjara Hills as inpatient and undergone treatment. He got pain in his heart at about 7.00 pm., he was rushed to Care Hospital, Banjara Hills and took treatment by incurring an expenditure of Rs.2,75,000/- towards medical expenses. After discharge from the hospital, the complainant submitted claim to the opposite party no.2 duly enclosing all his medical bills along with discharge summary. But the claim of the complainant was repudiated by the opposite parties on ground of pre-existing disease as the complainant has a history of heart attack seven years back. In fact the complainant did not get any heart attack or undergone any major operations prior to the commencement of the Policy. Though there is no suppression of facts about his health condition the opposite parties wantonly and willfully rejected his claim only to avoid the payment of all the medical and treatment expenses borne by the complainant as per the Policy. Hence, the complaint praying to direct the opposite parties to pay an amount of Rs.2,75,000/- towards his treatment and medical expenses and Rs.5,00,000/- towards compensation.
4. The opposite parties resisted the case contending that the complainant has taken Senior Citizen and red carpet Insurance Policy for himself for a sum insured of Rs.5,00,000/- for the period 29.01.2013 to 28.01.2014 vide policy bearing NO.P/121116/01/2013/008385. Under the policy, he submitted a claim for Rs.2,75,000/- towards reimbursement of medical expenses reportedly incurred in Care Hospital dated 07.12.2013 along with records pertaining to the treatment revealing that the complainant had a past history of Stroke seven years before and therefore, Cashless treatment was denied and the same was communicated to the treating hospital and as well as to the complainant vide Lr. Dt.12.12.2013. The complainant has not disclosed in the proposal form his pre-existing disease suffered earlier or suffering at the time of filing the proposal form and thereby he has suppressed the material facts and obtained the policy. As per condition 7 of the policy, if there is any misrepresentation / non-disclosure of material fact whether by the insured person or any other person acting on his behalf, the opposite party is not liable to make any payment in respect of any claim and support of the same they submitted some citations reported which are as follows:
a) Ch. Narsa Reddy Vs. New India Insurance Co., Ltd. Reported in II
2009 CPI 55,
b) Surender Lal Vs. Oriental insurance Co., reported in I (2009) CPJ 117
(NC)
c) S.K. Sandhu Vs. New India Ass., Co., Ltd., reported in SC-2009 8
SC.,316 –
d) UIIC V SUBHAS CHANDRA in R.P. No 469/2006 (NC);
5. Therefore there was no deficiency of service on the part of the opposite parties and they justified their repudiation. Hence, the opposite parties prayed for dismissal of the complaint.
6. In proof of his case, the complainant filed his evidence affidavit and got marked Ex.A1 to A8. On behalf of Opposite Parties, the Assistant Vice-President filed evidence affidavit and got marked documents Exs.B1 to B6.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.459 of 2014 by orders dated 22.06.2016 as stated in paragraph No.1, supra.
8. Aggrieved by the said decision, the opposite party no.1 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to appreciate that there was a pre-existing disease and insurance company is not liable to pay the same as per the condition no.7 of the policy. The District Forum has also failed to take into consideration As per Clause No. 5 of the policy in case where insured claims in regard to expenses for pre-existing diseases, 50% of cost will be borne by the insured himself and 30% cost will be borne in respect to the claim not related to the pre-existing diseases. The contract of insurance is a special contract which is based upon utmost good faith. The complainant had knowingly and intentionally concealed the material facts relating to his health with a purpose to take undue advantage. The District Forum has failed to consider that the respondent/complainant has deliberately concealed the fact that he is suffering from stroke in the proposal form. Therefore, the opposite parties have rightly repudiated the claim and prayed to set-aside the order of the District forum and appeal be accepted
9. Counsel on both sides present and were heard. The counsel for both parties have filed their written arguments.
10. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
11. The Counsel for the appellant/Opposite Party, submitted that the contract of insurance, being based on utmost good faith, it was the duty of the insured, to disclose, as to whether, he was suffering from, or had suffered from any disease(s), at the time of signing and submission of the proposal form. He further submitted that, since it was an Insurance Policy, which was purchased by a Senior Citizen, additional questions were attached with the proposal form, to be answered by the insured. He further submitted that the additional questions, were put to the insured i.e., the complainant, as to whether, he had ever suffered from/was suffering from any of the diseases i.e. Cancer, Chronic Kidney Disease, CVA/Brain Stroke, Alzheimer Disease and Parkinsons Disease and he answered all these questions, in negative, by tick marking, the word No, written against each disease referred to above, at page 79 of the District Forum file, and crossing/cutting the word Yes, mentioned against these diseases. Since the diseases were concealed/suppressed by the insured, at the time of furnishing the additional information, when the proposal form was filled up and submitted, the contract of insurance, being based on fraud, stood vitiated, and the insured was not entitled to any benefit, thereunder. He further submitted that the claim submitted by the complainant, was rightly repudiated by the appellants/Opposite Parties.
12. On the other hand, the Counsel for the respondent/complainant, submitted that the disease suffered by the respondent/complainant i.e., Acute Coronary Syndrome was first detected only when the respondent/complainant was hospitalized on -7.12.2013 as such he was not aware of the present ailment before 07.12.2013 and he did not take any treatment or got any stroke 7 years prior to his hospitalization as alleged by the appellant/opposite parties. The claim submitted by the complainant, was thus, illegally and arbitrarily repudiated by the Opposite Parties and that the order of the District Forum, being legal and valid, is liable to be upheld.
13. From the material on record, it is quite clear that the insurance company has failed to prove the fact that at the time of taking the insurance policy, the insured suffered stroke seven years back , by adducing cogent and reliable evidence or opinion of any doctor that the life assured was actually had stroke. There is nothing on record to show that assured was treated with regard to heart disease. The insurance company also filed the Discharge Summary of Care Hospital to show that he was admitted on 7.12.2013. The insurance company had to prove that at the time when he had taken the policy he was suffering from such ailments. He was suffering from left sided chest heaviness associated with sweating by then and the doctors opined after seeing the ECG and Coronary Angiogram that he has been suffering with single vessel disease, proximal RCA long segment calcified disease deferred PTCA due to highly calcified vessels and that he is planned for high risk PTCA+ stent to RC. Without any evidence that he had suppressed the said ailments, the insurance company basing on Ex.B1 could not have opined that he had suffered with stroke. No doctor was examined nor affidavit was filed in order to show that he had stroke seven years back. Simply because in the progress notes some one whether the nurse or the doctor wrote “ old H/o stroke – 7 yrs” the opposite parties repudiated the claim. It is a sheer conjuncture obviously in order to deny the just claim of the complainant. The Hon’ble Supreme Court in Mithoolal Nayak v. LIC reported in AIR 1962 SC 814 held that “the fraudulent suppression of the material facts with regard to the statement must be on material or must suppress the facts which it was material to disclose, the suppression must be fraudulent, made by the policy holder prior to the proposal, the policy holder must have known at the time of making the statement that it was false or that it was suppressed, which it was material to disclose.” The Supreme Court in LIC of India Vs. Asha Goel reported in 2001 (2) SCC 160 held that “ the repudiation of contract of a life insurance should be one of extreme caution and such a matter should not be dealt with in a mechanical and routine manner.” The National Commission in LIC of India Vs. B. Nageswaramma reported in II (2005) CPJ 9 NC held that “doctor’s certificate without affidavit in support is not basis for repudiating the claim. No conclusive evidence produced to suggest the suppression on the part of the deceased. The insurance company was liable to pay the amount.”
14. Coming to the facts, the insurance company could not prove that by the date when the policy was issued he suffered stroke seven years back or was suffering from any of the ailments. Exs.A5 & A7 positively would show that he did not suffer with any stroke seven years back, basing on which, insurance company had issued the policy. Now they cannot turn round and say that he had suppressed the said fact. Therefore we are of the opinion that the complainant is entitled to the amount covered under the policy.
15. In the above facts and circumstances, we are of the considered opinion, the conclusion arrived at by the District Forum does not suffer with any infirmity or illegality. Therefore, we hold that the impugned order needs no interference and as such the appeal liable to be dismissed. The point no.9 is answered accordingly against the opposite parties.
In the result, the appeal is dismissed confirming the order of the District Forum, Ranga Reddy dated 22.04.2015 in C.C.No.72 of 2014. There is no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER
26.02.2018
