Chandigarh

StateCommission

A/278/2016

SBI General Insurance Company Ltd. - Complainant(s)

Versus

Balwinder Singh Jolly - Opp.Party(s)

Simrandeep Singh, Adv.

05 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	278 of 2016
Date of Institution	:	3.10.2016
Date of Decision	:	5.10.2016

SBI General Insurance Company Limited, SCO 457-458, 1st & 2nd Floor, Sector 35, Chandigarh through its National Manager-litigation Sh.Akhil Kulhari, SBI General Insurance Company Ltd. 101, Natraj, Junction of Western Express Highway & Andheri-Kurla Road, Andheri East, Mumbai-400069.

                                                       ……Appellant

V e r s u s

 

1. Balwinder Singh Jolly S/o Sh. Inderjeet Singh R/o H.No.1217, Phase – 10, Mohali.

 

                                 -Respondent No.1/Complainant

 

2. Paramount Health Services (TPA) Pvt. Limited, Plot No.A-442, Road No.28, MIDC Industrial Area Wagle Estate, Ram Nagar, Vithal Rukhmani Mandir, Thane (West), Maharashtra 400604 through its Managing Director.

                                 -Respondent No.2/O.P No.2

 

         Appeal under Section 15 of the Consumer Protection

               Act, 1986.

 

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                       

Argued by:        Mr. Inderjit Singh, Advocate for the appellant                          

          

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            Appellant is a general insurance company. It has filed this appeal against an order dated 29.8.2016, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), allowing a complaint bearing No.743 of 2015 filed by respondent No.1/complainant.

2.     The complainant has filed above complaint against appellant/Opposite Party No.1 and Respondent No.2/Opposite Party No.2 alleging deficiency in  providing service in repudiating his claim to reimburse the amount, spent by him upon his medical treatment. It was stated by him that he obtained a Group Health Insurance Policy from the appellant/Opposite Party No.1 in 2013, valid upto 1.12.2014. The total sum assured was Rs.5.00 lakhs.  On 16.8.2014, he became unconscious, was taken to the Fortis Hospital at Mohali.  He was diagnosed as a patient of intra cerebral hemorrhage and intra ventricular hemorrhage. He underwent a major surgery. Request made for cashless treatment, as stipulated in the Insurance Policy, was declined by the appellant, on the ground that before issuance of above insurance policy, the complainant  was suffering from hypertension and he had not disclosed that fact of pre-existing disease in his proposal form to get insurance policy issued. The complainant was discharged from Fortis Hospital on 22.9.2014. The hospital raised a bill for an amount of Rs.10,00,631/-, which he paid from his own resources. When his claim for reimbursement upto an amount of Rs.5.00 lacs was repudiated, he filed above consumer complaint in the Forum.   
3.        Upon notice, O.P No.2/respondent No.2 did not put in appearance and was proceeded against ex parte. Reply was filed by OP No.1/appellant  stating that the complaint was liable to be dismissed being  frivolous and vexatious. Deficiency in providing service was denied.  It was stated that non-disclosure of the fact of pre-existing disease in the proposal form, before inception of the Policy, virtually amounts to fraud committed by the complainant in getting the policy issued. The complainant was suffering from hypertension for the last 4-5 years before he had fallen ill.  Repudiation of claim for reimbursement was justified stating that non-disclosure of factum of pre-existing disease in the proposal form would amount to violation of terms and conditions of the policy.  Under the above circumstances, a prayer was made for dismissal of the complaint. 

4.           Both the parties led evidence. The Forum, on analysis of pleadings of the parties, documents placed on record and arguments addressed, came to the conclusion that the appellant was guilty of providing deficient service and accordingly  allowed the complaint vide impugned order dated 29.8.2016, granting following relief to the complainant;  

             (i)   To pay Rs.5.00 lakhs to the complainant being the sum assured with interest @ 9% per annum from the date of filing of this complaint till realization;

       (ii)    To pay Rs.25,000/- as compensation for mental  agony and harassment caused to the  complainant;

 

       (iii)   To pay Rs.11,000/- as costs of litigation to the complainant. 

                   Directions were also issued to pay the amount awarded within one month from the date of receipt of certified copy of the order dated 29.8.2016, failing which, the amount awarded was to entail penal interest. Hence this appeal.  

5.       Counsel for the appellant has vehemently contended that issuance of policy was a result of fraud committed by respondent No.1/complainant. When proposal form was filled up, despite directions to the contrary, he failed to disclose the factum of his pre-existing disease i.e. hypertension which he was suffering for the last 4-5 years. To prove the above fact, reference was made to discharge summary prepared by the Hospital where respondent No.1 had undergone surgery and remained admitted.  It is stated that on account of above fact, appeal may be allowed and consequently complaint filed by respondent No.1 be dismissed.

6.              We have gone through the documents on record and are not inclined to accept the argument raised. It has been found as a matter of fact by the Forum that except discharge summary prepared by the hospital staff, when after surgery respondent No.1 was discharged from the hospital, there is no other evidence on record to prove that respondent No.1 was suffering from any disease, as alleged.  It is an admitted fact that respondent No.1 became unconscious and thereafter he was taken to the hospital.  Not even a slightest evidence has been brought on record to prove the factum of his suffering from hypertension and who was the person who had disclosed that fact of his  suffering from hypertension to the doctor, who prepared pre-surgery record. Taking note of the above fact on record, the Forum observed as under ;

            “ It is admitted that the complainant took the group health insurance policy from OP-1 in the year 2013. The policy was valid from 2.12.2013 to 1.12.2014 and total sum assured was Rs.5.00 lakhs.  Annexure C-1 is the copy of that policy.  Annexure C-4 is the discharge summary of the complainant which proves that he was admitted to the hospital on 26.8.2014 and was discharged on 22.9.2014. He was diagnosed as “Intra cerebellar hemorrhage with intra ventricular hemorrhage and subdural hemorrhage uncontrolled hypertension”. As per the past history, there is mention of hypertension (4-5 years).  Annexure C-2 is the denial of cashless access to the complainant by the OPs and the operative part of the same reads as under :-

 “On primary scrutiny of your request we are unable to sanction cashless benefit for the said hospitalization for the following reason/s.

As per the instructions of the insurer SBI General Insurance Company Ltd., the claim is being denied on account of hypertension & its related complication are not payable for one since inception of policy hence claim denied.  Hypertension since 4-5 yrs which is pre-existing in nature hence claim denied.”

 

 Thus it is proved that the claim of the complainant was denied on account of hypertension and its related complication and it is mentioned that there was hypertension since 4-5 years which is pre-existing in nature. We are of the view that the burden was on the OPs to prove that the complainant had concealed material fact of his pre-existing disease at the time of taking the policy.  There is no other document on record except the discharge summary of the complainant issued by the Fortis Hospital where he was admitted and remained under treatment. As per the discharge summary, the past history was hypertension since 4-5 years. The OPs have failed to produce on record any document to show that the complainant was suffering from hypertension from the last 4-5 years. The OPs have failed to get further information from the hospital as to whether the doctor who recorded the past history recorded the said information on the basis of the information given by the complainant or his relative or some medical prescriptions were consulted.  It was the duty of the OPs to prove who supplied this information to the hospital. In the present case, the complainant became unconscious and he was rushed to the hospital.  So, he himself was not in a position to disclose about his previous illness. The possibility of giving this information by some relative of the complainant on the basis of guess work cannot be ruled out.  It was the duty of the OPs to conduct a thorough enquiry about the previous treatment of hypertension obtained by the complainant. However, no such enquiry was conducted. Even the affidavit of the doctor who recorded the past history has not been produced on record.  So, merely on the basis of past history mentioned in the discharge summary, it cannot be said that the complainant was suffering from hypertension at the time of taking the policy and he has intentionally concealed the said material fact.

          In United India Insurance Co. Ltd. & Anr. Vs. S.K. Gandhi, 2015 (2) CLT 71 (NC), the insurance company had not placed on record either the discharge summary of the complainant or any medical document signed by the doctors who treated him in Kailash Hospital, to show that the complainant, when he was admitted to the said hospital, had himself stated that he was suffering from hypertension from last 8-9 years. In that case it was held that it is quite possible that the complainant, despite suffering from hypertension was not actually aware of the same and he cannot be accused of misstatement or concealment. Onus was upon the insurance company to prove that he had made a misrepresentation while obtaining the insurance policy and since the insurance company failed, it was held that it was liable to pay to the complainant to the extent of sum insured by it. In Satish Chander Madan Vs. M/s Bajaj Allianz General Insurance Co. Ltd., 2016 (1) CPJ 613 (NC) it was held that hypertension is a common ailment and it can be controlled by medication and it is not necessary that person suffering from hypertension would always suffer a heart attack.  It was further held that treatment for heart problem cannot be termed as claim in respect of pre-existing disease and the insurance company was held liable. In Oriental Insurance Co. Ltd. Vs. Naresh Sharma & Ors., 2015 (2) PLR 75, the Hon’ble Punjab and Haryana High Court held that the exclusion clause  has to be read to the benefit of patient in genuine circumstances. Where respondent was admitted in hospital suffering from headache, giddiness and hypertension, his claim cannot be rejected on the basis of exclusion clause. Reliance can also be placed on a Division Bench judgment of Hon’ble Punjab and Haryana High Court in CWP No.9738 of 2008-Life Insurance Corporation of India Vs. Permanent Lok Adalat & Anr. decided on 17.10.2008, wherein it was held that the duty to disclose is limited to the facts within the knowledge of the assured, a mistaken statement about a material fact made honestly, that is, with belief in its truth, will not affect the validity of the contract.  Reliance was also placed upon a decision of Division Bench of Hon’ble Madras High Court in All India General Insurance Co. Ltd. & Anr. Vs. S.P. Maheshwari, AIR 1960 Madras 484 wherein it was found that the answers to the questions are representations and a false representation will not operate to vitiate the contract or avoid the policy unless the fact is actually, material or clearly intended to be made material by the agreement between the parties.  The insurer can avoid the policy only by proving that the statement is false or fraudulent or that it was false and material to the risk.  It was further observed as under :-

“In the present case, there is no proof of the insured having been suffering from hypertension for a period of 10 years and assuming it to be so, hypertension is a disease which can escape attention of a person and is required to be diagnosed by experts.”

      So, in the present case, the OPs have failed to produce cogent evidence to prove that prior to the date of taking the policy, the complainant was suffering from hypertension and was getting any treatment and that fact was in the knowledge of the complainant and he intentionally concealed the same. There is no dispute with regard to the law laid down in the judgments referred by learned counsel for the OPs, but, the same are not applicable to the facts of the present case because in the present case the OPs have failed to produce cogent evidence to the effect that the complainant had knowledge of hypertension and had intentionally concealed the treatment. It is pertinent to mention that except the discharge summary, there is no other evidence on record that the complainant was getting the treatment of hypertension at the time of taking the policy. Even otherwise, there is no proof on the record as to who disclosed to the doctor about the hypertension being suffered by the complainant for the last 4-5 years. 

        OPs have failed to prove that the complainant has suppressed material facts while obtaining the policy. As such, OP-1 was not justified in repudiating the claim of the complainant.  OP-2 is also jointly and severally liable with OP-1 to satisfy the claim of the complainant.  The complainant has placed on record Annexure C-3 which is a copy of the bill making the payment of Rs.10,00,631/- to the Fortis Hospital. The policy was to insure to the extent of Rs.5.00 lakhs.  As such, OPs 1 & 2 are jointly and severally liable to reimburse the amount of Rs.5.00 lakhs to the complainant. The complainant is also entitled to compensation because of denial of his rightful claim by the OPs.”

 7.        It was rightly said that the doctor who had recorded past history qua alleged disease suffered by respondent No.1 had not seen  any medical prescription to support the above finding recorded. History of getting any treatment before issuance of insurance policy, has also not been brought on record. It was also rightly stated that there is nothing on record to prove that respondent No.1 had knowledge of his suffering from the disease like hypertension.

8.         It has come on record that  the age of respondent No.1 when mediclaim insurance policy was issued in his favour was more than 45 years.  In that event, as per instructions issued by Insurance Regulatory & Development Authority of India (IRDAI), it was duty of the appellant to  put respondent No.1 to  thorough medical examination. In the case of National Insurance Company Ltd. Vs Harbirinder Singh, Appeal No.220 of 2016 decided on 30.9.2016, this Commission noting above said fact and failure on the part of insurance company to get thorough medical examination of  the insured before issuance of mediclaim insurance policy, dismissed appeal filed by the insurance company by observing as under; 

               “To deny claim raised by the complainant, reliance has been placed upon self declaration form R-2 (page-74 of the original paper book). The said declaration form has been signed by Saranbir Kaur on 5.2.2013. There is nothing on record to show that Policy was issued to the complainant and his wife on the said date, by believing above document.   The policy infact was issued on 13.2.2013. The appellants have failed to co-relate the said declaration form with the policy (C2), referred to above. A note is appended on the said declaration form that it needs to be filled up if the age of the member is above 45 years. The complainant and his wife both are older than the said age. There is noting on record to show that before insurance policy was issued to them, the appellants got them medically examined, which as per instructions issued by Insurance Regulatory & Development Authority of India (IRDAI) is must in such like cases. This Commission in M/s Max Bupa Health Insurance Co. Ltd. Vs Rakesh Walia, Appeal No.191 of 2016 decided on 18.8.2016, in similar circumstances dismissed appeal filed by M/s Max Bupa Health Insurance Co. Ltd. against complainant observing  that as per IRDAI Regulations,  it is mandatory in case of issue of mediclaim policy   in favour of a person more than 45 years of age, to get him thoroughly examined.  In that case actually medical examination was got done.  However, insured was not put to thorough medical examination which led to this Commission to observe that in such cases, insurance company has to suffer the consequences.”

 9.        Similar view was taken by this Commission in the case of M/s Max Bupa Health Insurance Co. Ltd. Vs Rakesh Walia, Appeal No.191 of 2016 decided on 18.8.2016, wherein it was also stated that if contrary to the instructions issued by IRDAI, an insured above the age of 45 years, was not put to thorough medical examination, claim raised after issuance of insurance of policy cannot be rejected on account of non-disclosure of the fact of  pre-existing disease when policy was obtained.   

10.          In view of the above,   no case is made out by the appellant, to make interference, in the order under challenge.

11.          For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District  Forum is upheld.  

12.         Certified copies of this order, be sent to the parties, free of charge.

13.        The file be consigned to Record Room, after completion.

Pronounced.

5.10.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

                                           

                    

                                                                      Sd/-

(DEV RAJ)

Js                                                                    MEMBER

 

 

STATE COMMISSION

(First Appeal No. 278 of 2016)

 

Argued by:   Mr. Inderjit Singh, Advocate for the appellant

 

 

Dated the 5th day of October,2016

 

ORDER

 

              Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs.   

 

 

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH)                                     (RETD.)                          PRESIDENT