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 14^th 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 he was to go Australia to meet his son and the complainant is an illiterate person and  on the allurement of the official of the Opposite Parties, the complainant had purchased a Travel Super Age Elite Insurance cashless mediclaim policy bearing No.OG-16-1203-9910-00000397  valid for the period w.e.f. 29.05.2015 to 24.11.2015  for a sum assured of 50000 USD on the assurance of the employee of the Opposite Parties that during the trip to Australia, in case there is any difficulty after getting the policy, the company would come forward and would comply with its duties and provide every facilities covered under the policy without any hindrance. Further alleges that during the tour and during the policy period, the complainant fell ill and was immediately admitted to Gosnells Healthcare Centre, Gosnells WA 6110 where the complainant remained admitted  from 08.10.2015 to 13.10.2015 where the complainant spent more than Rs.12 lakhs. After that, the complainant lodged the claim with the Opposite Parties for the reimbursement of his claim, but the Opposite Parties repudiated he claim of the complainant on the false ground of concealment of pre existing disease allegedly as per the terms and conditions of the policy in question.  But the Opposite Parties never communicated such terms at the time of issuance of policy and thus terms which are not communicated or provided to the complainant, are not applicable to the present case 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 of Rs.12 lakhs for the expenditure suffered by the complainant as well as Rs.5  lakh for causing huge mental  tension and physical agony costs of litigation amounting to Rs.22,000/-.

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 submitted that on receipt of the claim, it was duly registered, processed the claim and the officials of the Opposite Parties applied their mind and came to the conclusion that the disease of the insured was pre existing to the policy as the complainant was suffering from long standing hypertension and stroke. It is also noted that past hospitalisation of gunshot injury which is pre existing to the policy and has not been disclosed on proposal form. Non disclosure of ailment is violation of principle of insurance contract and hence repudiated the claim of the complainant vide letter dated 27.04.2016 in view of the terms and conditions of the policy.  On merits, Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections.   Hence, Opposite Parties have 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  failed to adduce any evidence. On the other hand, the Opposite Parties tendered into evidence affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R6 and closed their evidence.

5.       We have heard the ld.counsel for the parties, written submissions of the complainant   and also  gone through the documents placed  on record.

6.       Ld.counsel for the Complainant as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is 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 after coming back to India, the complainant lodged the claim for the reimbursement of his claim, but the Opposite Parties falsely repudiated the claim of the complainant on the ground of pre existing diseases on the basis of terms and conditions of the policy. But the Opposite Parties never communicated such terms at the time of issuance of policy and thus terms which are not communicated or provided to the complainant, are not applicable to the present case and as such, there is deficiency in service on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that on receipt of the claim, it was duly registered, processed the claim and the officials of the Opposite Parties applied their mind and came to the conclusion that the disease of the insured was pre existing to the policy as the complainant was suffering from long standing hypertension and stroke. It is also noted that past hospitalisation of gunshot injury which is pre existing to the policy and has not been disclosed on proposal form. Non disclosure of ailment is violation of principle of insurance contract and hence repudiated the claim of the complainant vide letter dated 27.04.2016 in view of the terms and conditions of the policy.

7.       The only contention of the ld.counsel for the Opposite Parties for the repudiation of the claim of the complainant is that the complainant has violated the terms and conditions of the policy and hence, 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.”

8.       On merits also, 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, so his 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 all the facts to the Opposite Parties. On this point, evidence has to be referred to by us on the record. The onus to establish this fact is upon the Opposite Parties in this case.  We have perused the record and we  do not find any record of said hospital on the basis of which, the Opposite Parties opined that the complainant was having pre ailment from the date of purchase of policy in question, neither  there is neither any affidavit nor  complete particulars of the investigator recorded in them. Even the original certificate has not been placed on the record. There is no affidavit of doctor of the treating hospital to establish this fact on the record regarding previous disease of insured. In the absence of any affidavit of investigator and the affidavit of treating doctor of the hospital, we do not place any reliance upon these averments  as pressed into service by the Opposite Parties in this case. Consequently, we are of this view that Opposite Parties have failed to discharge the onus solemnly laid upon it to prove this fact that the complainant was suffering from above pre-existing disease before taking the policy and he deliberately and fraudulently concealed this material fact from Opposite Parties. We, thus, conclude that there is no substantive evidence on the record to prove this fact that the complainant was suffering from any disease before he took the insurance policy and he willfully suppressed this fact fraudulently from the Opposite Parties. Moreover, as contended by the complainant that  before the issuance of the policy in question, the Opposite Party has also conducted the medical examination  of the complainant and after finding everything Okay, the Opposite Party issued the aforesaid policy. Moreover, if the complainant  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.”

9.       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 70 years  (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.

10.     In such a situation the repudiation made by Opposite Parties-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.

11.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the claim of the complainant.

12.     Now come to the quantum of compensation. The complainant in his complaint has claimed the reimbursement of his medical bill upto the extent of Rs.12 lakhs. But bare perusal of the un-exhibited bills of the treating hospital placed on file and  on calculation by this District Consumer Commission, it found that the complainant has placed on record the bills of his treatment in abroad upto the extent of  $ 1119.10 only (Australian dollar), so as such, the complainant can claim the reimbursement maximum upto the extent of $ 1119.10 (Australian dollar)  and we allow the claim of the complainant accordingly.  

13.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Parties -Insurance Company to pay the amount of $ 1119.10 (i.e. Australian dollar) or equivalent to that amount in Indian currency on the date of this order i.e. 24.08.2022 and also to pay a like amount as lump sum compensation, to the complainant directly alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 03.10.2017 till its actual realization. The compliance of this order be made by Opposite Parties-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.

Announced in Open Commission at Camp Court, Ludhiana.