BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 27 / 2001 MONDAY THE 29th DAY OF NOVEMBER 2010. Dr. A.K. Krishnaswamy, 56 Kosa Annamalai Street, Gudiattam, Vellore District. … Complainant. - Vs – M/s. United India Insurance Company Ltd., Rep. by its Branch Manager, No.12, Katpaid Road, II Floor, Gudiattam Vellore District. … Opposite party. . . . . This petition coming on for final hearing before us on 15.11.2010, in the presence of Thiru. M.S. Narasiman, Advocate for the complainant and Thiru. S. Venkatachari, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant had taken a individual mediclaim policy No.413503/305/135/2001 with the opposite partly from 29.8.2000 for one year, in continuation of such policies which he had been taking from 1995 onwards with the opposite party. His wife id also covered in the said policy as per practice, procedure and contract. The complainant’s coverage is for Rs.2,00,000/-. The said policy is in force from 29.8.00 to 28.8.01. Whileso, the complainant suddenly developed chest pain, and attended Sri Ramachandra Medical College and Research Institute where after several tests the pain was diagnosed to be due to Triple vessel coronary Heart disease” and advised immediate surgery to correct the same. Accordingly he was admitted and operated on 25.9.00 and 29.9.00 respectively and discharged on 9.10.00. The complainant had spent nearly Rs.2,00,000/- for the same, the hospital charges alone amounting to Rs.1,62,226/-. As he had taken the medical claim policy to cover such contingencies, he had intimated the opposite party, and on their instructions had submitted the necessary claim form duly filled up with all the necessary documents which are now in their possession. The opposite party may be directed to produce them into this Forum. The claim form with the said documents was submitted as early as 16.10.00 itself i.e., one week after discharge. But the complainant did not hear from the opposite party about the said claim for more than two months inspite of repeated reminders, telephone calls and personal visits. Every time there was a standard reply only stating that it is under consideration and being processed at the Divisional Office at Vellore which also remained silent. Every time the Branch Manager would assure this complainant that favourable orders would be passed and payment would be made, keeping the complainant in the dark about the delay and what was being done exactly about the lawful, valid claim. 2. The complainant was shocked and surprised to receive a letter dt. 4.5.01 from the opposite party, repudiating the claim on false and frivolous grounds. The Branch Manager had accused the complainant of suppressing material factors, that the disease was preexisting and known to the complainant who had alleged to have deliberately not disclosed it, and that there was no continuous insurance to date back to 95 and so the Insurance company was not liable to reimburse the complainant. The stand of the Insurance Company is not only illegal and unlawful, but also contrary to truth, unreasonable, unconscionable and amounts to gross deficiency of service and unfair trade practice. The disease was not preexisting, nor was it known to the complainant who did not suppress anything to the Insurance company but had candidly submitted all the documents to the opposite party who had torn the recitals and observations therein out of context for the selfserving purpose to negate the just claim of the complainant who is bound to be reimbursed in the sum of RS.1,62,226/-, by the opposite party with interest at 24% p.a. from 16.10.2000 for the unjust retention of the monies, lawfully due and legally payable to the complainant by the opposite party who had deprived the complainant the user of the said amounts truly belonging to him, after receiving a huge amount as premium, continuously for over 6 years. The cause of action for the complaint arose variously on the date of policy viz. 29.8.00 on the date of surgery i.e. 29.9.00, on the date of claim viz. 16.10.00 and on the date of repudiation after 6 (six and odd) months by the opposite party, and continues de-die-in-diem till date at Gudiattam, within the jurisdiction of this Forum. Therefore, directing the opposite party to pay reimburse the complainant for a sum of Rs.1,62,226/- with interest at 24% p.a. from 16.1.00 till date of full and final payment. 3. The averments in the counter filed by the opposite party is as follows: The opposite party stoutly and vehemently denies all the allegations mentioned in the complaint as false, baseless, vexations, concocted and frivolous save those that are specifically admitted herein and put the complainant into strict proof of them all. It is a falsehood to allege in para-3 of the complaint that the complainant has been taking mediclaim policy on and from 1995. The complaint for a sake of suiting his convenience had suppressed the truth from the knowledge of this Forum. The cheque issued by the complainant towards the premium for the year 1995 was dishonoured and consequently there was no coverate for 1995 and no insurance for 1995. That being the truth the allegations contra are all false and are denied. There was a break in the mediclaim. The claimant had taken the 1st time policy w.e.f. 29.8.96 and therefore the coverage extension and from 29.8.96 alone and not earlier as alleged fallaciously by the complainant. The utmost good faith and honesty is required while taking the mediclaim from the opposite party. The Insurance Company experts honest true declaration alone and not dishonest and false declaration by the policy takers. The Insurance companies, bonafide belives their declarations setout in the proposals are true and correct and on their declarations issues policies. As per the policy and its conditions if the insured person had prior knowledge and symptoms of the disease at the time of first taking of the policy, it is mandatory on the part of the takers of the policy to disclose the nature of disease and its duration and other details relating to the ailment in the proposal form without any dishonest intention of cheating the insurance company, requiring honest and utmost good faith on the parts of the policy takers. If the declaration is true and genuine, containing the details of the pre existing disease, it is open to the insurance company either to accept the same a reject the proposal form or issue a qualified policy as the case may be excluding the disclosed disease from the preview of the policy covering all other diseases from which the policy taker is not suffering from. 4. The complainant had given a false declaration in the proposal form and had suppressed the disease from which he has been suffering for more than 7 years prior to 29.8.96, even though he has been actually suffering from the said disease and has been taking treatment at Madras in hospitals like Apollo and Ramachandra Medical Institute as per the Medical Records available in this case. The claimant is not entitled any relief much less the relief’s prayed for in his pleadings and the opposite party is not liable to any extent whatsoever. The claimant submits that the petitioner for the sake of achieving his object has played a fraud on this court and on this opposite party. As per the ample medical records emanating from the repudiated medical centres, Chennai it is clear the complainant has been suffering from heart disease and were a known hepertensive under going treatment for the past seven years as well under went surgery on 29.9.00. That apart, the complainant were diagnosed to have triple vessel coronary Artery disease 6 years ago by the Apollo Hospital and since then the complainant has been on regular medication. The claimant has been suffering from the disease right from 1993 and on the basis of the complainant own admission, to the doctor who has performed the surgery on the complainant, the disease has been in existence very much before the commencement of the policy, and as such and interms of the policy exclusions the claim of the complainant is not entertainable and admissible and therefore the company is not any way liable counter answerable to the fanciful claim of the complainant and the claim made in this case will have to be rejected inlimini. The complainant in his proposal form has not indicated the disease. The complainant not being contentment with the false declaration in the proposal form, the complainant knowing fully well that his declaration is false and untrue has also suppressed an important material fact has enhanced the mediclaim cover from Rs.1.05 lakhs to RS.2 lakhs on and from 29.8.00 knwoing fully well that he will be undergoing surgery on 29.9.00. The complainant with the sole object of enriching himself at the expenses of the opposite partly based on the false declaration, which is just before the hospitalization and this aspect is also a concealment of material fact. Therefore the complainant is not entitled to any much less the amount claimed in this case. The discharge summary issued by the Cardiac cure centre reveals that the complainant was 61 years then was a known hypertensive for the past 7 years was on regular treatment was diagnosed to have triple vessel coronary disease for the past six years by the Apollo Hospitals. Therefore the allegations that Ramachandra Hospital alone diagnosed triple vessel coronary disease in 2001 is false. After a thorough scrutiny they have sent their reply to the complainant on 4.5.01 and there is no delay. The complainant has no cause of action to maintain the case. There is no deficiency of service, there is no delay in dealing with the claim of the complainant. Hence this complaint is liable to be dismissed with compensatory cost. 5. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A5 were marked on the side of the complainant and Ex.B1 & Ex.B2 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 7. POINT NO. (a):- It is admitted facts of the parties that the complainant had taken a individual mediclaim policy bearing No.413503/305/135/2001 for Rs.2 lakhs with the opposite party from 29.8.00 to 28.8.01. While so the complainant was admitted Sri Ramachandra Medical College and Research Institute and the pain was diagnosed to be due to Triple vessel coronary heart disease”. Accordingly, he was admitted and operated on 25.9.00 and 29.9.00 respectively and discharged from the hospital on 9.10.00. As he had taken the medical claim policy to cover such contingencies, he had submitted the necessary claim form Ex.A4 duly filled up with all the necessary documents on 16.10.0. The opposite party repudiated the claim through a letter dt. 4.5.01. 8. The complainant contended that the opposite party repudiated the claim on false and frivolous grounds that the complainant was suppressed the material facts, disease was preexisting and deliberately not disclosed. It is further contended that the triple vessel coronary heart disease was not preexisting, nor was it known to the complainant who did not suppress anything to the Insurance Company After receiving a huge amount as premium continuously for over six years. the opposite partly had failed to reimburse legitimate mediclaim of the complainant. But having failed to pay the legitimate mediclaim amount of Rs.1,62,226/-. The opposite party has caused deficiency of service and direct the opposite party to pay the above said mediclaim amount with interest. 9. In this connection the learned counsel for the complainant relied upon the following judgement of State Consumer Disputes Redressal Commission, Jharkhand, Delhi and Karnataka. 1. II (2004) CPJ 68 MURALI LAL PODDAR Versus UNITED INDIA INSURANCE CO. LTD & ORS. Wherein Jharkhand State Consumer Disputes Redressal Commission, Ranchi held that “Consumer Protection Act, 1986 – Section 15 – Insurance – Repudiation of claim – Contention pre-existing disease not disclosed – Contention not acceptable – Policy in continuation of original mediclaim policy obtained from Oriental Insurance Company – Last policy if treated in continuity of initial policy no question of suppression of pre-existing disease – Repudiation unjustified – Company liable to reimburse medical claim with interest – Compensation and cost awarded. “ 2. I (2005) CPJ 420 UNITED INDIA INSURANCE CO. LTD., Versus MEHTAB SINGH Wherein Delhi State Consumer Disputes Redressal Commission, New Delhi held that “Consumer Protection Act, 1986 – Section 15 – Insurance – Medi-claim policy – Repudiation on ground of concealment of pre-existing disease – Pre-existing disease is disease existing at time of taking of policy – Person might have received treatment for similar disease few years back and enjoying good health at time of policy – Claim of such person cannot be repudiated on ground of concealment of pre-existing disease – company expected to be careful while issuing policy – Claim rightly allowed by Forum – Interest reduced in appeal. “ 3. I (2005) CPJ 571 ORIENTAL INSURANCE COMPANY LTD. Versus K. ANANDAM. Wherein Karnataka State Consumer Disputes Redressal Commission, Bangalore held that “Consumer Protection Act, 1986 – Section 15 – Insurance – Medi-claim Policy – Repudiation of claim – Reimbursement of bypass surgery refused under exclusion clause – Medical examination conducted before issuance of fresh policy – ECG found normal, complainant could not have known existence of any disease relating to heart on date of filing of proposal form – Cardiac arrest could not be anticipated as no symptoms of cardiac arrest exist – Exclusion clause not applicable even though complainant undergone bypass surgery within 30 days from date of policy due to sudden cardiac arrest – Complaint allowed – Interest reduced in appeal. “ 10. The opposite party contended that as per the policy and its conditions if the insured person had prior knowledge and symptoms of the disease at the time of first taking of the policy, it is mandatory on the part of the insured of the policy to disclose the nature of disease and other details relating to the ailment in the proposal form. But the complainant had given a false declaration in the proposal form and had suppressed the disease from which has been suffering for more than 7 years prior to 29.8.96, even though he has been actually suffering from the said disease and has been taking treatment at Apollo and Ramachandra Medical Institute. It further contended that Ex.B1 and Ex.B2 discharge summary issued by the Sri Ramachandra Hospital Cardiac Care Centre reveals that the complainant was a known hypertensive for the past 7 years on regular treatment was diagnosed to have triple vessel coronary heart disease six years ago by the Apollo Hospital and since then has been on regular medications. Based on the false declaration but the complainant in his 1st proposal form dt. 29.8.96 has not disclosed the said disease. Therefore the opposite party is not liable to pay the amount claimed by the complainant in the complaint. In this connection the learned counsel for the opposite party is relying upon the following Judgements of Hon’ble Supreme Court. I. AIR 2008 SUPREME COURT 424 P.J. Chacko and Anr. ..Vs.. Chairman, Life Insurance Corporation of India & Ors. Wherein the Hon’ble Supreme Court is held that ” The well settled law in the field of insurance is that contracts of insurance including the contracts of life assurance are contracts uberrima fides and every fact of materiality must be disclosed otherwise there is good ground for rescission. And this duty to disclose continues up to the conclusion of the contract and covers any material alteration in the character of the risk which may take place between proposal and acceptance. “ (A) Insurance Act (4 of 1938) S.45 – Insurance Policy – Repudiation – Deliberate wrong answer given by Insured having a great bearing on contract of insurance - Policy may be repudiated. Contract Act (9 of 1872) S.126. II 2009 (IV) CPJ 8 (SC) SATWANT KAUR SANDHU ..Vs.. NEW INDIA ASSURANCE COMPANY LTD. Wherein the Hon’ble Supreme Court is held that “Section 45 – Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests) Regulations, 2002 – Regulation 2(1)(d) – Insurance – Mediclaim Policy – Suppression of material facts – Policy holder suffering from chronic diabetes and renal failure not disclosed – Claim repudiated by insurer – Section 45, Insurance Act, applicable in life insurance policy, has no application in case related to mediclaim policy – Contract of insurance, contract of uberrimae fidei – Insured under obligation to make true and full disclosure of information, within his knowledge – Insured on regular haemodialysis, fully aware of state of health – Statement made in proposed form as to state of health palpably untrue to his knowledge - Suppression of material facts proved – Repudiation of claim justified. “ It is further contended that the decision cited by the learned counsel for the complainant is not applicable to the facts of this case. 11. The contention of the complainant that he had taken a mediclaim policy from 1995 onwards with the opposite party. According to the opposite party the cheque issued for the complainant towards premium for the year 1995 was dishonounred and consequently there was no coverage for 1995. Therefore no mediclaim insurance for 1995 to the complainant. He had taken the 1st mediclaim policy on 29.8.96 alone and not earlier as alleged by the complainant. From the perusal of Ex.A1 the Oriental Insurance Company Ltd., Policy Schedule it is seen that the complainant had taken a individual mediclaim policy period from 29.8.00 to 28.8.01 for Rs.2,00,000/- with the opposite party. There is no documents to prove that the complainant had taken a individual mediclaim policy from 1995 onwards with the opposite party. At the same time the complainant has not denied the contention of the opposite party that the complainant had taken first mediclaim policy on 29.8.96 and no earlier as alleged by the complainant that h e had taken the policy on and from 1995. 12. From the perusal of Ex.A2 and Ex.B1 discharge summary issued by the Sri Ramachandra Hospital Cardiac Care Centre, it is seen that the complainant admitted in the above hospital on 19.9.00 and the complainant stated the history of this disease that (Mr. Krishnansamy) “ the complainant aged 61 years, known hypertensive for the past 6 years. Non a known diabetic / asthmatic. Now with history or chocking sensation on walking 100 yards. No history of DDE. No history of orthopnoea / palpitations or PND. The complainant was diagnosed that systemic hypertension, Chronic stable angina, Triple Vessel Coronary Artery disease, and good LV function. Hence he is advised to undergo coronary artery bypass graft surgery at the earliest. From the perusal of Ex.B2, it is seen that the complainant was admitted in the above said hospital on 25.9.00, the surgery was on 29.9.00 and he was discharged from the hospital on 9.10.00. From the perusal of the said discharge summary mentioned that the complainant is 61 years old physician , a known hypertensive for 7 years on regular treatment was diagnosed to have triple vessel coronary artery disease – 6 years ago at Apollo Hospital, and since then has been on regular medication. Now presented with the complaints choking sensation of throat during walking since the last few months, family history of coronary artery disease present……. Angiogram No.7643,dt. 20.9.00 revealed triple vessels coronary artery disease with good left ventricular function. . He was advised CABG. 13. After the surgery on 29.9.00 the complainant had sent a letter Ex.A3, dt. 8.10.00 to the opposite party stated that he had undergone cardiac by-pass surgery at the Institute of Sri. Ramachandra Medical College & Research Institute following an angiogram which revealed CA3 and TVD ( coronary artery disease with triple vessel disease) and he requested the mediclaim form. After the scrutiny of the mediclaim form along with the necessary documents submitted by the complainant. The opposite party had sent a letter Ex.A5, dt.4.5.01 to the complainant stated that as per the policy conditions under exclusion 4.1. all disease / injuries which are pre-existing when the cover incepts for the first time are excluded. From the details mentioned in Ex.B1 and Ex.B2 the complainant will observe that while the cover as incepted from 29.8.06 onwards, the symptoms of the said disease were in existence right from 1993 onwards. Since on his own admission to the Doctor who has performed the surgery the disease was in existence much before the commencement of his policy and in terms of the said policy exclusions the claim is not admissible. Hence they regret their inability to entertain complainant’s claim and the same is hereby repudiated in full. On perusal of Ex.B1, dt.20.9.00 and B2 dt.29.9.00 discharge summaries issued by the Sri Ramachandra Hospital Cardiac Care Centre, Porur, Chennai it is seen that the complainant was suffering from hypertension on regular treatment for 7 years and the above hospital, and the complainant diagnosed to have triple vessel coronary artery disease 6 years ago at Apollo Hospital and since then has been on regular medications and the surgery was done on 29.9.00 in the above hospital. Therefore it is clear that the complainant was suffering from the said disease right 1993 or 1994 has performed surgery on the complainant on 29.9.00. Hence the said disease has been inexistence very much before the commencement of the mediclaim policy, but the complainant did not disclose the said disease or the symptoms of the disease in the proposal form. After the thorough scrutiny of the Ex.B1 & Ex.B2 discharge summary issued by the Sri Ramachandra Hospital Cardiac Care Centre, Porur, Chennai. After the thorough scrutiny the opposite party sent have sent their reply letter Ex.A5, dt. 4.5.01 to the complainant stating that since on his own admission to the Doctor who has performed the surgery the disease was in existence much before the commencement of their policy and in terms of the said first policy exclusions the claim is not admissible and the same is repudiated in full. 14. The learned counsel for the opposite party has argued that as per Sec.45 of the Insurance Act, the privity of contract between the parties purely on the pre of Ubirimafide on the atmost good faith. Since any declaration made by the assured found false the contract becomes null and void u/s 45 of the Insurance Act. 15. Considering the effect of Sec.45 of the Insurance Act, the Insurance Policy is a contract falling in the category of utmost good faith on the part of the assured, and if the assured has not made full disclosure correctly or in other words, if the declaration so made found to be false to the knowledge of the declarant, then the insurance company is entitled to repudiate the claim. Further, in Ex.B4 Accident Insurance Policy Conditions No.4 says that “ The company shall not be liable to make any payment under the Policy in respect of any claim if such claim be in any manner fraudulent or supported by any fraudulent statement or device. Whether by the insured or by any person on behalf of the insured” 16. In this case, when the complainant submitted his first mediclaim proposal before the opposite party on 29.8.96, he failed to disclose the triple vessels coronary heart disease or the symptoms of the disease. Based on the suppression on the material facts the opposite party of the Insurance Company repudiated the claim under the policy condition 4.1. Therefore there is no deficiency in service on the part of the opposite party. The ruling cited by the learned counsel for the complainant is not applicable in this case and but the ruling cited by the learned counsel for the opposite party is squarely applicable to the facts and circumstances of this case. 17. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of both the parties, and from the documents Ex.A1 to A5 and Ex.B1 & Ex.B2, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 18. POINT NO : (b):- In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant s herein. 19. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 29th day of November 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits Ex.A1 - -- - X-copy of Mediclaim Insurance Policy of the Complainant. Ex.A2- -- - X-copy of Discharge Summary. Ex.A3- 8.10.00 - X-copy of Letter by complainant to opp party. Ex.A4- 16.10.00 - X-copy of Claim Form. Ex.A5- 4.5.01 - X-copy of letter of Repudiation by the O.P. Opposite party’s Exhibits: Ex.B1 - -- - X-copy of Discharge Summary. Ex.B2- 29.9.00 - X-copy of Discharge Summary. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
