Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The unfolded story of the case of the complainant, is that the complainant has taken a health insurance policy from the Op for a period of one year commencing from 24.11.2011. As per policy conditions, the OP shall be liable to pay daily hospital cash benefit and intensive care Unit benefit will be available to the complainant in case of treatment and the hospitalization during the policy period. It is also case of the complainant that the insurance policy being three years enforced upto dtd.28.12.2015. It is alleged inter-alia that the complainant met accident and hospitalized from 15.10.2014 to 28.11.2014 at Apollo Hospital,Bhubaneswar. He was admitted in ICU for about 23 days and in private care for about 22 days. After discharge from the hospital the complainant submitted the claims for insurance but the OP repudiated the claim that he was suffering from diabetic prior to the date of commencement of policy but not disclosed such fact in the proposal form. Challenging said repudiation, the complaint was filed.
4. OP No.3 is set-exparte.
5. The OP No.1 & 2 filed joint written version stating that the insurance policy was purchased by the complainant but he has suppressed the material fact of his pre-existing disease which was made available from the discharge summary of the Apollo Hospital and he was admitted in the said hospital from 09.09.2011 to 18.09.2011 due to diabetes mellitus, Dengue Fever and Oesophageal Candisiasis. Since the complainant has suppressed the disease, they have repudiated the claim. As such, they have no deficiency in service on their part.
6. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ The OP No.1 & 2 are hereby jointly and severally directed to pay a sum of Rs.3,40,000/- (Rupees three lakhs forty thousand) only towards insurance claim amount alongwith pay a sum of Rs.20,000/- (Rupees twenty thousand) only towards harassment mental agony and cost of litigations to the complainant within 30(thirty) days from the date of receipt of this order,failing which OP No.1 & 2 shall be liable for interest @ 10 % on above mentioned awarded amounts till its realization.
Accordingly the case is disposed of.”
7. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not applying judicial mind to the fact and law involved in this case being the impugned order is not clear to show whether the complainant has suppressed the material fact of his pre-existing disease. According to him, in the proposal form he has strongly denied about prior hospitalization or disease suffered by him. In the discharge summary it is clear that he was admitted in the Apollo Hospital from 09.09.2011 to 18.09.2011 having suffered about those diseases. In support of his submission he relied on the decision of Reliance Life Insurance Co.Ltd. & Another –Vrs- Rekhaben Nareshbhai Rathod in Civil Appeal No. 4261 of 2019 cited on 24th April,2019 and Satwant Kau Sandhu –Vrs- New India Assurance Co.Ltd. (2009) 8 SCC,Pg316 in support of his submission. So, he submitted to set-aside the impugned order by allowing the appeal.
8. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
9. It is admitted fact that the complainant has purchased a SBI life hospital cash policy under the health insurance plan on 08.12.2011 for sum assured of Rs.5,00,000/-. The policy is made for three years. It is also not in dispute that the complainant met accident and was hospitalized for 45 days from 15.10.2014 to 28.11.2014 in the Apollo Hospital,Bhubaneswar. The only question arises in this case whether the complainant has violated the contract of insurance. In Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814,SCR Supl. (2) 571 which is followed by the subsequent decision as relied on by the learned counsel for the appellant it is clear that U/S-45 of the Insurance Act,1938, the insurer is to prove the previous disease suffered but duly suppressed by the insured. Further, it is reported in that case that the pre-condition in the Section-45 of the Insurance Act have to be proved by the OP-insurer. The three pre-conditions U/S-45 of the Insurance Act are as follows:-
a) the statement must be on a material matter or must suppress facts which it was material to disclose;
b) the suppression must be fraudulently made by the policy-holder, and
c) the policy- holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
10. Learned counsel for the appellant emphasized about three pre-conditions on being asked. He submitted that the policy document for the instant case also contains clause 11.11 where it is clearly mentioned that non disclosure of the material fact U/S-45 of the Insurance Act will not give any benefit under the policy. The policy itself shows that it is the contents of premium, policy no. and the policy holder’s name and document is issued on 29.12.2011. The terms and conditions of policy documents in question do not appear to have been delivered to the complainant as per decision of Hon’ble Supreme Court in Civil Appeal No.8249 of 2022 M/s. Texco Marketing Pvt.Ltd.-Vrs- Tata AIR General Insurance Company Ltd. & Others 2022 (4) CPR 428 (SC) where it is held that any policy condition which debars the policy holder to make the claim must be conveyed to the insured and these documents since not supplied to the complainant by obtaining signature of insured in the document, we have to conclude that the OP has suppressed the terms and conditions of the policy as applied now yet to be duly conveyed to the complainant. Therefore, applicability of the policy condition as stated by the learned counsel for the appellant does not arise at all.
11. So far the suppression of material fact is concerned learned counsel for the appellant submitted the discharge summary which was issued by the Apollo Hospital on the date of discharge of the complainant on 04.12.2014 where there is only indication given whether the complainant was admitted in their hospital on 09.09.2011 and discharged on 18.09.2011 for the diabetes mellitus, Dengue fever and Oesophageal Candisiasis. That document marked as Annexure-C and the hospital document is Annexure-C-1. But these documents never show what kind of treatment was rendered to him. Since, the cause of action was the accident policy holder met and no way it is connected with diabetes mellitus, Dengue fever and Oesophageal Candisiasis etc. Dengue fever and Oesophageal Candisiasis are like any other occasional diseases and diabetics being exposed due to former diseases can not be expected to be material fact for their disclosure in the proposal form by insured. Also diabetes mellitus is normal disease for majority person and it is not disease but causes other diseases, same can not be material fact for insured who suffered due to accident. So non disclosure of such disease even if insured suffered can not be suppression of material fact in the facts and circumstances of this case.
12. In view of above discussion, we confirmed the impugned order and appeal being devoid of merit stands dismissed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
