Date of filing: 01.08.2017 Date of disposal: 07.03.2019
Complainant: Mrs. Madhuja Bhattacharya, W/o. Subrata Bhattacharya, resident of 1D/38 Kanishka Road, A Zone, Durgapur, District: Burdwan, PIN – 713 204, presently residing at 89, C. R. Das Avenue, A-Zone, Durgapur, Pin – 713 204.
- V E R S U S -
Opposite Party: 1. Branch Manager, Star Health & Allied Insurance Company Limited, City Centre, Durgapur – 713 216.
2. Star Health & Allied Insurance Company Limited, 1, New Tank Street, Nungambakkam, Chennai – 600 034.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party Nos. 1 : Ld. Advocate, Ahi Bhushan De.
Appeared for the Opposite Party Nos. 2 : None (ex parte).
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 against the Ops as the Ops have repudiated his legitimate mediclaim.
The case of the complainant in brief is that the complainant is a consumer under the Ops by commencement of a policy, namely, “Family Health Optima Insurance Policy” in the year 2011 after depositing premium amount Rs. 7,771=00. The sum insured of the policy is Rs. 5, 00,000=00 and the limit of coverage is Rs. 6, 75,000=00. The said policy was incepted of the complainant herself, her husband, namely, Subrata Bhattacharya and their child Saswata Bhattacharya. The complainant renewed the policy till 2016.
After that in the year 2016-17 dated 26.07.2016 complainant took admission before the Mission Hospital, Durgapur. At the time of discharge from the Hospital on 29.07.2016 the Hospital Authority raised a bill of Rs. 47,899=00 towards treatment cost.
Thereafter the complainant lodged the claim of Rs. 57,190=00 before the OP on 07.09.2016 along with some documents and the OP also received the same and after receiving the said form, the OP lodged the claim vide claim No. CLM/2017/191114/108614 for reimbursement. But very surprisingly the OP had repudiated the claim of the complainant vide their letter dated 29.09.2016 on the ground that the complainant did not disclose about her treatment held in the year 2007 at the time of filing up proposal form in the year 2011. The complainant then on 19.10.2016 sent a letter to the OP, but the complainant did not receive any reply from the OP regarding this.
Further the complainant for renewal of the policy for the year of 2016-17 submitted an amount of Rs. 13,858=00 as premium before the OP. But on the other hand OP on 19.05.2017 by giving a letter along with a cheque of Rs. 13,858=00 and a policy document informed her that Ops have cancelled the policy and for that they refunded the premium amount.
The complainant further submits that she is a bonafide consumer of the OP but the OP in one hand repudiate the legitimate claim of the complainant on some contradictory, baseless, whimsical grounds on the other hand repudiate the claim illegally. The complainant further alleges that since the date of inception in the year 2011 she renewed the said policy by paying premium and she never became defaulter but the Ops repudiated the claim without considering anything and thus the conducts of the Ops are tantamount to deficiency in service and unfair trade practice.
The cause of action of the present case arose on and from 29.09.2016 when the Ops repudiated the legitimate claim of the complainant.
The Op-1 contested the present claim application by filing written version and denied all the allegations as alleged by the complainant against them by saying that the complainant has no locus standi for filing the present claim application and also has no cause of action and as such the claim application is not maintainable in its present form and prayer.
Op-1 also stated through written version that the complaint is misconceived, groundless and unsustainable in law and as such liable to be dismissed and the present Forum has no jurisdiction to entertain such type of petition as the dispute for which the claim application is filed, is not a consumer dispute and accordingly does not fall within the C. P. Act, 1986 and further the claim application, as filed by the complainant is barred by the provisions of C. P. Act ad also is bad for mis-joinder & non-joinder of necessary parties, as well as, unnecessary party.
The specific case of the Op-1 is that the complainant has availed the Family Health Optima Insurance Policy No. P/191114/01/2012/003647 for Rs. 5,00,000=00 with the Ops for the period from 21.09.2011 to 20.09.2012 for reimbursement of medical expenses and subsequently the policy was renewed from September 2012 to September 2016 which is totally contractual in nature and the claims arising are subject to the terms & condition of the part of the policy, i.e., the terms & condition of the policy states that the Insurance Company is not liable to pay any claim if there is any misrepresentation and non-disclosure of material fact by the insured to the insurer.
Op-1 further stated that the claimant has knowledge that she never disclose about her past medical history in the proposal form which executed between the complainant along with the Op-1 is nothing but malafide intention and according to declaration part of the proposal form if it is appear that the statements, particulars, declaration, connected documents or any other information provided in the proposal form incorrect or untrue then the Insurance Company is not liable to pay any amount as per claim application and accordingly the claim of the claimant is not bonafide and genuine one and as such the complainant is not entitled to get any relief as prayed for.
On the other hand, the OP-1 is entitled to get a cost of Rs. 10,000=-00 from the complainant and also prayed for dismissing the claim application.
Though summon was received by the OP-2, but did not appear to contest the case by filing written version. Therefore, the case heard ex parte against the OP-2.
On considering the claim application along with written version the following issues are considered and framed by the present ld. Forum.
Points for determination:-
- Whether the claim application is maintainable in its present position?
- Whether the present complaint case filed by the complainant is within the proper jurisdiction or not?
- Whether the complainant is entitled to get any relief as prayed for?
Issue No. 1:-
Regarding the issue the complainant is duty bound to prove that the she is a consumer and as a consumer she is only entitled to file such type of claim application after considering the attitude of the Ops. Herein the instant case there is no dispute that the complainant incepted a policy of insurance, namely, “Family Health Optima” from the Ops and the Ops also received Rs. 7,771=00 as premium amount on 21.09.2011 for the year 2011 to 2012 and the complainant renewed the same policy till 2016.
So on considering such circumstances it is clear that the complainant is able to prove that she is a consumer against the Ops according to C. P. Act and the present Forum has no hesitation to accept her as a legal consumer.
Accordingly this issue is disposed of.
Issue No. 2:-
Regarding this issue it appears that the complainant has filed the present claim application against the Ops to direct the Ops to pay a sum of Rs. 57,190=00 towards reimbursement of treatment expenses and also directing the Ops to restore the policy for the year 2016-17 after taking premium amount from the complainant.
It further appears that the office of the OP-1 who has contested this case by filing their written version is at Durgapur, City Centre and District: Paschim Bardhaman. Therefore, there is no hesitation to hold that the claim application has been filed within proper jurisdiction, i.e., pecuniary and territorial jurisdiction. Accordingly, this issue is disposed of.
Issue No. 3:
This is the issue for which the complainant has compelled to file the present application against Ops on the ground that though the complainant is a bonafide consumer of the Ops but the Ops have illegally repudiated her legitimate claim which is nothing but an act of unfair trade practice and deficiency in service.
The allegation of the complainant is that she purchased a policy of insurance, namely, “Family Health Optima Insurance Policy” in the year 2011, covering the risk of health of herself, her husband, namely, Subrata Bhattacharya and their only child, namely, Saswata Bhattacharya and after purchasing, she renewed the policy till the year 2016 and alleged that during continuation of the policy for the year 2016-17, she took admission before the Mission Hospital, Durgapur on 26.07.2016 due to some Gynaecological Troubles and discharge from the said Hospital on 29.07.2016 after paid bill amount of Rs. 47,899=00 for treatment cost and further alleged that at the time of renewal for the year 2016-17, the Op-1 informed through letters that they have cancelled the policy and refunded the premium amount on the ground that the claimant does not disclose her previous treatment held in the year 2007 at the time of filing up proposal form in the year 2011.
Op-1 also admitted that they have cancelled the policy and refund the premium amount as the complainant did not comply the terms and conditions No. 8 & 15 of the policy by not disclosing of material facts, i.e., she was admitted at hospital in the year 2007 for two times for treatment and when in the year 2011, she purchased a policy of insurance, she never disclosed about the previous treatment in the proposal form.
Ld. Lawyer for both sides have cited Xerox copies of Law Books to prove their own allegation against each other and the said books are 2016 (2) CPR 265 (NC), i.e., onus is on Insurance Company to prove suppression of material fact by insured, 2016 (2) CPR 509 (NC) i.e., pre-existing disease cannot be inferred, 2009 (4) CPR 423 i.e., hypertension could not be said to be a material disease and the Insurance Company would not be justified in repudiation of claim on the ground of suppression of the fact, 2015 (3) CPR 771 (NC), undue non-settlement of claim on ground of pre-existing ailment amounts to deficiency in service, 2016 (1) CPR 753 (NC), history of hypertension does not lead to conclusion that the petitioner was also having previous history of heart problem and 2016 (4) CPR 33 (NC) on behalf of the complainant and the Ld. Lawyer for the OP also cited (2018) CPJ 29 (HAR), (2016) CPJ 57 (NC) along with judgement passed by Hon’ble President as well as Member Judge of the present Forum Court.
Now the question should be consider whether the complainant actually failed to disclose material facts at the time of filing up proposal form in the year 2011 as per allegation of the OP-1 or not, as because OP-1 stated before this ld. Forum that the complainant did not comply the terms and conditions No. 8 & 15 of the policy by not disclosing her previous condition in the proposal form in the year 2011.
Let us discuss regarding point No. 8 & 15 of the terms and condition of the policy and it appears that “the company shall not be liable to make any payment under the policy in respect of any claim if information furnished at the time of proposal is found to be incorrect or false or such claim is in any manner fraudulent or supported by any fraudulent means or device Misrepresentation whether by the insured person or by any other person acting on his behalf” and Section 15 is that “the company may cancel the policy on grounds of misrepresentation as well as non-disclosure of material fact”.
Here in the instant case, it appears that the complainant used the word ‘Nil’ at the time of filing up proposal form and it is fact that at that time she was not suffering and also not under treatment and at the same time it is also fact that the complainant admitted at hospital in the year 2007.
Accordingly Ld. Lawyer for OP-1 submits before the Forum Court by producing ruling that the policy purchased by the complainant in the year 2011 should be cancelled due to non-disclosure of fact as per terms & condition and accordingly OP-1 repudiated the said policy by giving the complainant a repudiation letter.
So before passing any order it is the duty of this present Forum Court to consider actually any incident happened or not for non-disclosure of facts as per their terms and condition of proposal form signed by the complainant herself. The complainant answered in respect of all points in the proposal form by using the word “NIL”, and only she used the word ‘NO’ at the time of answering the question, i.e., “any proposal for this insurance or any other such insurance refused, cancelled or higher premium charged. If ‘yes’ please provide details separately”.
Further she also used the word ‘NIL’ at the time of answering the column in the proposal form i.e., “medical history/ please answer yes or no. a mere dash is not sufficient. Has the proposed person suffered from any disease or illness irrespective of whether hospitalized or not sustained any accident? If yes give details.
We know the meaning of the word ‘NIL’ never support the meaning of the word ‘NO’. So it was the duty of the Insurance Company/OP-1 to verify all the column/points at the very beginning when the complainant was going to purchase the insurance policy, i.e., whether she properly filled up all the column/points as per their instruction or not.
Now it appears that the complainant lodged the present complaint for claim amount of Rs. 57,190=00 towards the reimbursement of treatment expenses against the Ops along with other amount for other claim, and at that time it was detected that she never disclosed the previous fact that she was admitted in the hospital Apollo Gleneagles Hospital” for two times in the year 2007 dated 04.09.2007 as well as 15.11.2007 and from both the discharge summary it is clear that she suffered from hypertension, left ovarian mass and also Conn’s Syndrome and ASA right side and both times she was released from the hospital without any operation.
The OP-1 also admitted the fact in their written argument by saying that the complainant admitted at the hospital in the year 2016 for large active deodonal ulcer (D.U.), Adrenal Tumour, Ill Defined Bulky Cervix and Hypertension which are not anyway related with the previous disease for which she was admitted in the year 2007. So it is clear that the complainant is not admitted in the year 2016 for the previous disease for which she was admitted in the year 2007.
So without any hesitation the present Forum came to a conclusion that there is actually no incident happened on the part of the complainant for non-disclosure of any previous disease at the time of filing up proposal form. Moreover the burden of proof totally lies upon the Ops to verify the proposal form at that time and not at the middle point of time when the complainant continued the policy since the year 2011 by paying regular premium.
Besides that the Ops also liable to (and a notice for repudiation to the complainant) inform the complainant regarding repudiation by sending three days notice by registered letter at the insured person’s last known address as per point No. 15 of the terms and condition.
That is point No. 15 of terms and condition empowered both the insured and the Insurance Company to reject or cancel the policy at any time according to their proposal.
Regarding this point it appears that the Ld. Lawyer for the Ops only mentioned the first Para of point No. 15 where cancellation power has been given to the Ops only.
After considering the points it appears that OP-1 informed the complainant regarding repudiation of policy through letter on 19.05.2017 (along with cheque for Rs. 13, 858=00 sent by the complainant as premium amount for the year 2016-17) by refunding the cheque amounting to Rs. 13, 858=00 which was sent by the complainant as premium amount for the year 2016-17.
So without any hesitation the present Forum Court came to a conclusion that the Ops have failed to properly consider point No. 15 of terms and condition at the time of repudiation, by not serving the notice.
So considering such circumstances it is fact that the conduct of the Ops towards the complainant shows nothing but deficiency in service as well as unfair trade practice which is not acceptable according to law. Accordingly the prayer of the complainant is justified and she is entitled to get relief.
Thus this issue disposed off.
Claimant able to prove her claim before the Ld. Forum Court and she is entitled to get relief.
Now it appears that according to claim application the complainant prayed relief for Rs. 57, 190=00 when she further mentioned in the body of the claim application that she was released from the hospital after payment of Rs. 47, 899=00 as per bill, though at the same time it appears that the claimant is not at all able to prove either written evidence/documents as to why she claimed Rs. 57, 190=00 When she paid Rs. 47, 899=00. So it is clear that the complainant is entitled to get Rs. 47, 899=00as bill amount which she paid before the Durgapur Mission Hospital at the time of release.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 133/2017 be and the same is allowed on contest against the OP-1 and allowed ex parte against the OP-2 with cost.
The OP-1&2 are directed to pay Rs. 47,899=00 either jointly or severally to the complainant as reimbursement of treatment expenses along with interest @8% per annum from 29.09.2016 (the date of repudiation) till its realization and the OP-1&2 are also directed to pay Rs. 2,000=00 as litigation cost either jointly or severally to the complainant within 45 days from the date of passing of this order, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions lf law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
