HON'BLE MR. KAMAL DE PRESIDING MEMBER
Order No. 05
Date : 25.07.2019
The instant Appeal is preferred U/S. 15 of the Consumer Protection Act, 1986 against the impugned judgement/order dated 07.03.2019 passed by the Ld. D.C.D.R.F., Burdwan in CC 133/2017.
In filing the Appeal the appellant has alleged that the Ld. Forum below has failed to consider the prayer 2 and 3 of the complaint of the appellant.
It is also alleged that the Ld. Forum below failed to consider the fact that the respondent refused to renew the policy in question of the appellant by refunding the amount paid by the appellant without any valid reason.
It is also ventilated that the Ld. District Forum failed to consider that the respondents are liable to reinstate the previous policy and issue current policy.
It is also agitated that the Ld. Forum below failed to consider the deficiency in service and unfair trade practise by the respondent in the event of cancellation of policy.
The appellant has agitated that the impugned judgement is not correct and is liable to be set aside.
Let us take a glance towards the case of the complainant as filed in the Court below being CC 133/2017.
The case of the complainant is that the complainant incepted a policy of insurance, namely, Family Health Optima Insurance Policy with the OP in the year 2011 for the risk of health of the complainant, her husband, namely, Subrata Bhattacharyay and their only daughter, namely, Swasastha Bhattacharya. The first policy was issued on 21.09.2011 by OPs on receiving a sum of Rs. 7771/- as premium amount from the complainant. Thereafter, the complainant renewed the policy on each and every year till 2016. The complainant during continuation of the policy for the year 2016-2017 suffered from health problem and took admission in Mission Hospital, Durgapur on 26.07.2016 and was discharged from the hospital on 29.07.2016. At the time of discharge the hospital raised a bill of Rs. 47899/- towards costs of treatment and the complainant also paid the amount to the hospital.
The complainant submitted claim form on 07.09.2016 amounting to Rs. 57190 but surprisingly the OPs vide their letter dated 29.09.2016 repudiated the claim of the complainant on the ground that the complainant did not disclose about her treatment held in the year 2007 at the time of inception of the policy in 2011 and thus suppressed the material fact. The complainant, thereafter, sent a letter to the OPs but did not receive any reply. The complainant, thereafter, submitted an amount of Rs. 13858/- as premium for the renewal of the policy for the year 2016-2017 to the OPs. But the OPs sent a letter dated 19.05.2017 along with a cheque of Rs. 13858/- and a policy document informing the complainant that the OPs cancelled the policy and refunded the premium amount.
The complainant alleges that the complainant is a bonafide consumer and has never done any act to detrimental to the interest of the OPs.
It is also alleged that the OP repudiated the claim illegally, moreover, cancelled the policy of the complainant forever. The complainant, thereafter, moved before the forum below for redressal.
OPs have contested the case before the Ld. Forum below and filed written version contending, interealia, that the complainant is wholly misconceived, groundless, unsustainable and the complainant has no locus standi to file the case nor any cause of action.
It is also stated that the complaint is barred by limitation under the provision of C.P. Act, 1986.
It is stated that the complainant has availed Family Health Optima Insurance of Rs. 5 lakh with the OP for the period from 21.09.2011 to September 20, 2012 for reimbursement of medical expenses and the policy was also renewed from time to time till 26th September, 2016.
It is stated that the terms and conditions of the policy specifically stated that the insurance company is not liable to pay in respect of any claim if there is any misrepresentation and non-disclosure of materials fact by the insured to the insurer.
It is stated that the complainant was admitted in the Mission Hospital, Durgapur on 26.07.2016 and raised a preauthorisation request for treatment of follow upcase of large active DK (D1) as mentioned in the USG report of the whole abdomen. On scrutiny of medical records submitted by the medical hospital, it is found that as per discharge summary of Apollo Grinigles Hospital the insured had primary heart block, hypokalaemic periodic paralysis, suspected hyperaldo steronism, left overian mass in the year 2007 and she was hospitalised in the said hospital from 04.09.2007 to 17.09.2007. Moreover, as per discharge summary of Apollo Grienigals Hospital, Calcutta for the period of hospitalization from 15.11.2017 to 05.12.2017, the insured had conn’s syndrome and she also underwent. As a right side on 28.11.2017.
It is alleged that the complainant did not disclose about her medical history which amounts to non-disclosure of material fact.
It is stated that the insurance policy is subject to condition, clause, exclusion.
It is alleged that the complainant is entitled to get any relief as prayed for in the complaint petition.
After contested hearing Ld. Court below was pleased to allow the case against OP 1, on contest, and ex-parte against the OP 2 with cost. OP 1 and 2 were directed to pay Rs. 47899/- either jointly or severally along with interest @ 8% per annum from 29.09.2019 till realization along with litigant cost etc. in terms of operating portion of the impugned judgement.
Being aggrieved by and dissatisfied with the impugned judgement the complainant preferred the instant Appeal.
It appears that the complainant got part decree in the court below and the complainant also received the decretal amount and, thereafter, moved to this Commission for availing prayer No. 2 and 3 of the complaint.
It is not the case that the complainant did not avail the decretal amount or keeping it pending moved to this Commission for cross appeal.
Let us now enter into the merit of the Appeal.
It is transpired from the discharge summary of Apollo Griengles Hospital for the period of hospitalization from 04.09.2017 to 17.09.2017, the insured patient has primary heart block, hypokalemic periodic paralysis and as per the discharge summary of Apollo Grienigles Hospital for the period of hospitalization from 15.11.2007 to 05.12.2007 the insured patient has conn’s syndrome right adrenal mass and has undergone right adrenalectomy on 28.11.2017 and all these occurred prior to inception of medical insurance policy.
It also appears from the proposal form that the complainant did not disclose or mention her previous medical history/health details. The respondent though that such undisclosed amount to misrepresentation or suppression of material facts and as per condition No. 8 of the policy, the company rejected the claim. We find that the present admission of the insured patient is for treatment of duodenal alsur and has nothing to do with the past medical history and as such Ld. Forum below rightly awarded a decree in favour of the complainant. The complainant also availed the decree and, thereafter, has moved to this Commission for prayer Nos. 2 and 3 of the complaint i.e. for setting aside the judgement dated 26.03.2018 passed in CC 133/2017 and also for payment of Rs. 57190/- as compensation and to restore the policy for the year 2016-2017 and 2017-2018 after taking premium amount from the appellant.
We find that the Ld. Forum below has not granted an amount of Rs. 57190/- as the complainant paid Rs. 47899/- as per the bill of the hospital concerned.
It also appears that the complainant in the Court failed to prove either in evidence or document as to why she claimed Rs. 57190/- when she paid Rs. 47899/-.
We do not think that the Ld. Forum committed any illegally as such.
Fact remains that the complainant suppressed her previous medical history/health details at the time of inception of the policy and we think that the policy is a matter of mutual faith.
The complainant took the policy suppressing the medical history and when it came to the knowledge of the OP Insurance Company, the OP refunded the premium amount to the complainant vide cheque of Rs. 13858/- (premium amount) cancelling the policy. It is up to OP company whether OP would entertain the proposal for insurance or not considering the health condition, all medical history of a person, or other conditions.
Moreover, it appears that OP company cancelled the policy for the year 2016-2017 for returning the premium amount of Rs. 13858/-, considering the previous medical history of the insured we are afraid. We cannot insist or compel the insurance company to restore the policy for the year 2016-2017 when the insured suppressed her medical history/health details in the previous form amount to misrepresentation/undisclosure of material fact.
Reverting back from where we started, we think that where a party has accepted the benefit under the decree of the Court, he is estopped from questioning the legality of the decree.
It startles us that a person can say the decree is wrong or it would be set aside and at the same time accepts the payment under the decree as being right.
In our opinion a complainant cannot take the benefit of a decree as being good and then the appellants against it as being bad, i.e. pick up and choose.
Considering all the aspects and having regard to the materials on record, we do not find any illegally or irregularity in the impugned judgement passed by the ld. Forum below.
In result, the Appeal fails.
Hence,
Ordered
That the instant Appeal being A/20/2019 be and the same is rejected on contest.
The impugned judgement passed by the Ld. Forum below dated 07.03.2019 in CC 133/2017 is upheld.
We make no order as to cost.
Let a copy of this judgement be supplied to the parties free of cost.
