BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 260 of 2015.
Date of Institution: 9.9.2015.
Date of Order: 06.02.2019.
Sajjan Kumar son of Shri Tara Chand, resident of Gali Thakur Bhani Singh, Bhiwani, Tehsil & District Bhiwani.
…..Complainant.
Versus
1. The Bajaj Allianz General Insurance Company Limited, Registered office – GE Plaza, Airport road, Yerwada Pune-411006 (India) through its M. D./Manager.
2. Bajaj Allianz General Insurance company Ltd., Block-4, 7th Floor, DLF Tower, 15 Shivaji Marg, New Delhi-110015.
3. Shri Vikas Sharma, Agent, Bajaj Allianz Insurance Company Limited, Devi Lal Sadan, Rohtak Gate, Bhiwani, Tehsil & District Bhiwani.
…...Opposite Party.
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Ms. Renu Chaudhary, Member.
Present: Shri L. K. Ahuja, Advocate for the complainant.
Shri Avinash Sardana alongwith Shri Satender Ghanghas, Advocates for the OPs No. 1 & 2.
OP No. 3 already exparte.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief fact of the case are that complainant has purchased an insurance policy of Health Guard – Family Floater option from the OP No. 3 at Bhiwani and the same was issued on 19.9.2014 vide policy No.OG-15-1135-6001-00000001 and the policy was valid till 10.9.2015 and paid premium of Rs. 16,478/- and the sum insured Rs.3,00,000/-. It is alleged that at the time of purchase of above said policy, the complainant was medically examined by panelist The Navi Mumbai Diagnostic Center K-2/4, Sector-15-16 Market, Vashi, Navi Mumbai-400700, as per the guidelines of the company and he was found medically fit, thereafter, the OP company has issued the policy to him. It is further alleged that on 21.3.2015 complainant suffered from the diseases and was admitted in the Aditya Birla Memorial Hospital, Pune and discharged on the same day and he spent Rs.15,000/- on his treatment. It is further alleged that thereafter the complainant was admitted in the G. B. Pant Hospital, New Delhi on 30.3.2015 and remained under treatment upto 3.4.2015 and he spent Rs.99,000/- on his treatment and all the payment was made to the hospital by him. It is further alleged that in this regard he contacted the OPs and explained whole episode and OP assured that the payment would be made to him directly, claim whole expenditure of his treatment as per policy. It is further alleged that as per his representations to the OPs, the OPs did not pay a single penny to him and letter was sent to the complainant on 4.5.2015 mentioning “in view of the non-disclosure of the health condition at the time of the proposal, whereas serve you the fifteen days prior notice for cancellation of above said health insurance policy from the date of delivery of this notice to you”. It is further alleged that on receipt of the said letter, the complainant submitted his representation to the OPs regarding clarification of queries of the above said policy, but the letter did not follow the rule of law as well as terms & conditions of the policy. It is further alleged that the complainant contacted the OPs several times and explained his grievances, but to no effect. It is further alleged that after receipt of letter from the OPs No. 1 & 2, complainant submitted the representation regarding clarification of queries of the above said policy, but the OPs No.1 & 2 did not follow the rule of law as well as terms & conditions of the policy. It is further alleged that the complainant got served a legal notice upon the OPs on 18.6.2015 through Shri Lila Krishan Ahuja, Advocate, Bhiwani, but no reply was given by the OPs and complainant was asked to get only the refund of premium as per their letter dated 4.5.2015. Hence, it amounts to deficiency in service on the part of OP. Hence, this complaint.
2. On notice, OPs No. 1 & 2 appeared and filed the contested written statement. It is alleged that this Forum has no territorial jurisdiction to entertain and decide this complaint, as the complainant has taken the policy from New Delhi, whereas the hospitalization was got done at Pune & New Delhi, as alleged by complainant and no cause of action accrued to the complainant in District Bhiwani. It is further alleged that the medical checkup prior to issuance of policy is admitted, but since at the time of conducting the tests, the insured was medications, so the report came was normal. It is further alleged that the object of the complainant is only to take a claim from the OPs by suppressing material fact. It is further alleged that the letter dated 23.3.2015 brought on record by the insured from Aditya Birla Hospital is only after thought process to overcome the grounds of repudiation and get the claim. It is further alleged that on receipt of claim papers from the complainant, he was requested by the OPs company to supply the documents including discharge summary issued by the treating doctors with all the details and on verification of the claim documents, it revealed that the complainant was hospitalized for the treatment of Ishemic Heart Disease with Hypertension and Diabetes Mellitus. It is further alleged that the complainant was known to be suffering from Diabetes Mellitus since 12 years, Hypertension since 6 months and dyspnea on exertion since 7 to 8 months, which was pre-existing to the policy and has not been disclosed on the proposal form, which is prior to the inception of the insurance policy, but this material information was not disclosed by the insured in the proposal form at the time of taking the policy. It is further alleged that as per the exclusion caluse of the policy, the claim of the complainant was not payable and was thus repudiated by the competent authority of the OPs company and he was informed accordingly vide letter dated 5.5.2015. Therefore, there is no deficiency in service on the part of the OP and prayed for dismissal of complaint with costs.
3. On notice, no one appeared on behalf of OP No. 3 despite service and the OP No. 3 was proceeded as exparte by the Forum vide its order dated 7.1.2016.
4. Ld. Counsel for the complainant to prove his case placed on record the documents Annexure C1 to C11 and closed the evidence.
5. Ld. Counsel for the OPs No. 1 & 2 has placed on record duly sworn affidavit Annexure RW1/A and documents Annexure R1 to R12 and closed the evidence.
6. We have heard ld. counsel for both the parties at length and gone through the case file very carefully.
7. The first plea taken by the OPs is that this Forum has no territorial jurisdiction to try & entertain the present complaint is not tenable, because the complainant has taken the policy from OP No. 3 at Bhiwani and payment of premium was also made by the complainant at Bhiwani vide cheque No.354321 dated 11.9.2014 of HDFC Bank Ltd., Bhiwani. Complainant has placed on record copy of premium deposit receipt annexure C3 and the copy of receipt of payment annexure C4. Thus, cause of action accrued to the complainant to file the complaint at Bhiwani and this Forum has the jurisdiction to try, entertain and decide the present complaint. The second plea taken by the OPs is that the complainant has concealed the fact of pre-existing diseases is also not tenable at all, because in Para No.8 of the preliminary objections the OPs No. 1 & 2 have admitted the fact regarding medical checkup prior to issuance of policy. Thus, it is clearly proved that the OPs No. 1 & 2 have wrongly repudiated the genuine claim of the complainant on the flimsy grounds. Moreover, the OPs No. 1 & 2 have placed on record Annexure R-12 self contained note, but the same is of no value in the eyes of law, because it does not contains Surveyor’s name & signature, report no. & date, claim amount, contact number, column of symptoms for which the patient was admitted with duration is also blank. So, the annexure-R12 is appeared to be filed by the OPs No. 1 & 2 with some ulterior motive.
8. Ld. counsel for the complainant in support of his case placed his reliance upon I (2012) CPJ 204 (NC) Sushil Kumar Jain Vs UIIC, wherein it has been held by the Hon’ble National Commission that “at the time of taking medical claim, petitioner had only signed cover note because respondent had not attached detailed proposal form with cover note – therefore, it cannot be said that petitioner had suppressed material information pertaining to his health in proposal form at time of taking mediclaim policy – Further, respondent unable to produce any credible evidence including documentary evidence or medical record to show that petitioner had been treated for any pre-existing diseases – therefore, respondent directed to pay petitioner Rs.1,32,335/- on account of medical expenses with interest @ 10% from date of repudiation of claim till realization”. The counsel for the complainant has further placed his reliance upon 2016 (1) CLT, 520 LIC of India & anr. Vs Kolla Santhi & anr., wherein it has been held by the Hon’ble National Commission that “Repudiation on the ground that pre-existing disease suppressed at the time proposal - Held – The petitioner Insurance Company has not produced any evidence showing the treatment of the insured before the date of proposal in any hospital – the blood pressure and diabetes are such diseases that are not sometimes known to patient, as they do not manifest any serious symptoms in the patient – The actual cause of death has been cardio respiratory arrest i.e. heart attack, which can also not be said to be pre-existing disease and can occur suddenly”. Ld. counsel for the complainant has further placed his reliance upon case law Vol. II Kamla Devi Vs LIC of India CPJ (NC) 649, wherein it has been held by the Hon’ble National Commission that “In absence of any cogent evidence it cannot be presumed that deceased has taken treatment pertaining to chronic renal failure before filing proposal form and has suppressed material disease”.
9. Ld. counsel for the OPs No. 1 & 2, in support of his case has placed his reliance upon the case law CPJ 2015 (1) 705 (NC) Amzad Khan Vs Aviva Life Insurance Co. Ltd., CPJ 2018 (1) 29 (Haryana State Commission) Murti Devi Vs Birla Sun Life & CPJ 2015 (1) 588 (NC) New India Assurance Company Ltd. Vs Balaji Emporium, but these cases are not applicable on the facts & circumstances of the present case, as in the present case, the OPs company has admitted the fact regarding medical checkup of the complainant prior to issuance of policy and they have also failed to place on record some cogent & convincing evidence to prove the fact of pre-existing disease.
10. The case law cited by the ld. counsel for the complainant are fully applicable to the facts and circumstances of the present case. The claim of the complainant has been repudiated by the OPs No. 1 & 2 on the ground that he was suffering pre-existing disease, but OPs No. 1 & 2 in Para No. 8 of preliminary objections of their written statement have themselves admitted the fact regarding medical checkup of the complainant prior to issuance of policy in question.
10. From the above facts, it is clearly proved on record that OPs No.1 & 2 have failed to provide satisfactory services to the complainant i.e. settling the genuine claim of the complainant, for which they have charged the premium and they are bound to settle the genuine claims of their consumers. So, OPs No. 1 & 2 have defeated the very purpose for which the complainant has taken the mediclaim policy. The OP No. 1 & 2 company has admitted the fact regarding medical checkup of the complainant prior to issuance of policy. But the OPs No. 1 & 2 have repudiated the claim of complainant only on the ground of Pre-existing disease, whereas they have failed to produce any cogent & convincing evidence on record to prove the fact of pre-existing disease. Thus, there is gross negligence and deficiency in service on the part of OP No. 1 & 2 and they cannot be allowed to run away from their responsibility.
8. Therefore, in view of the above facts and circumstances, the complaint of complainant is partly allowed with costs. Thus, the OPs No. 1 & 2 are directed to: -
i. To pay Rs.1,14,000/- together with interest @ 9% per annum from the date of repudiation i.e. 5.5.2015 till its realization.
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iii. To pay Rs.7000/- as litigation charges.
The compliance of the order shall be made within 30 days from the date of the order. In case of default, the OPs No. 1 & 2 shall liable to pay interest @ 18% p.a. on total amount as directed above vide clause No. i to iii from the date of default i.e. after 30 days from the date of this order i.e. 6.2.2019. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
The OP No. 3, who is agent of OP No. 1 & 2 Company, does not appear before this Forum despite service of the summons. So, in our view, the OP No.3 shall not be left unpunished for non- appearance and non-submitting of his written reply. Therefore, the OP No. 3 is burdened to pay Rs.2500/- as cost, which is to be deposited under the Head “0070-01-102-51-51 Fines & Forfeitures” DDO Code/Office Name 1705-Superintendent, District Consumer Forum, through challan.
Announced in open Forum.
Dated: 06.02.2019.
(Renu Chaudhary) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
