KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.56/2012
JUDGMENT DATED 07/05/2013
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
APPELLANTS:
1. Star Health and Allied Insurance Co.Ltd.,
Represented by its Managing Director,
I, New Tank Street,
Valuvarkottam High Round,
Nugampakkam, Chennai-600 034.
2. The Branch Manager,
Star Health and Allied Insurance Co. Ltd.,
Ist Floor, Grand Plaza, Fort Road,
Kannur-670 009.
3. The Assistant Manager,
Claims Department,
Star Health and Allied Insurance Co. Ltd.,
1st Floor, Vijay Plaza, S.S. Kovil Road,
Thampanoor, Thiruvananthapauram-695 011.
(By Adv: Sri. P.S. Sureshkumar)
Vs
RESPONDENTS:
1. Chacko N.M., S/o. Mathew,
Rajapuram, Kallar P.O., Died.
Rajapuram, Kasargod District.
2. Mary Chacko, W/o. Chacko N.M.
Nirappeal House, Rajapuram P.O.,
Kallar, Kanhangad, Kasaragod District.
3. Shalna Chacko, D/o. Chacko N.M.,
Nirappeal House, Rajapuram P.O.,
Kallar, Kanhangad, Kasaragod District.
Addl. Respts.
4. Rehna Chacko, D/o. Chacko N.M.,
Nirappeal House, Rajapuram P.O.,
Kallar, Kanhangad, Kasaragod District.
5. Ranil Chacko, S/o. Chacko N.M.,
Nirappeal House, Rajapuram P.O.,
Kallar, Kanhangad, Kasaragod District.
JUDGMENT
SMT. A. RADHA : MEMBER
Aggrieved by the order dated 27/10/2011 in C.C.No.138/10 on the file of CDRF, Kasargod the opposite parties came up in appeal.
The case of the complainant is that the complainant was a subscriber of Medi Classic Individual Policy and paid Rs.2,325/- as premium and the policy was from 31/01/2009 to 30/01/2010. During the subsistence of the policy the complainant had undergone a surgery for Left Inguinal Hernia (LIH). The opposite parties repudiated the claim on the ground that the complainant suppressed his existing illness while taking the policy. The treatment bills of the complainant were repudiated by the opposite party as the complainant was a cancer patient. The Medi Claim Policy was issued to the complainant after undergoing the medical checkup. The definite case of the complainant is that the illness of the complainant was known to the insurance consultant who canvassed the policy. The proposal form was filled up by the agent. At the time of proposal the complainant was not suffering hernia and it was found at the time of existence of renewal of policy. The complainant was not a cancer patient and he was not undergoing treatment for cancer. No treatment for cancer administered for the complainant after July 2007. Hernia has nothing to do with Chemotherapy or Surgery done for Carcinoma Colon. The opposite parties are liable to compensate and filed this complaint.
2. The policy is admitted by the opposite party. It is also admitted that the complainant renewed the policy from 31/01/2009 to 30/01/2010. It is also admitted that the current policy was the first renewal year of the policy. The complainant underwent treatment for Left Inguinal Hernia (LIH) and the request for claim was rejected on the ground of suppression of material facts while taking the policy. On scrutiny of documents it is found out that the respondent suppressed the material fact regarding the details of illness he had undergone for the treatment of cancer colon. The complainant had not answered the question No.5 of the proposal form. Suppressing and mis-representing the treatment for cancer the complainant obtained the policy by fraudulent means. The insurance is a contract between the parties and are bound to furnish all material informations regarding the real health status of insured. The breach of utmost good faith on the part of the respondent makes the contract void-ab initio. The specific question regarding the previous illness in the proposal form was filled up by the complainant in negative.
3. Oral evidence adduced by the complainant as PW1 and documents were marked as Exbts. A1 to A11. On the part of opposite parties DW1 was examined and Exbts.B1 and B2 were marked.
4. The appellant’s counsel submitted that the complainant disclosed vital information regarding illness existed before subscribing the policy. It is admitted that the respondent was having valid policy and during the renewal of the policy the complainant underwent a surgery for Left Inguinal Hernia (LIH) and the claim for treatment expenses was rejected. The complainant had suppressed material facts regarding the existence of disease before taking policy. Though the valid policy was prevalent at that time of treatment for Left Inguinal Hernia (LIH) was repudiated as the complainant had not revealed pre-existing disease. At the time of claiming the treatment charges for Left Inguinal Hernia (LIH) it was brought to the notice of the appellant that the respondent had undergone treatment for Carcinoma Colon. It is pertinent to point out that the appellant had not revealed the disease that he had already taken treatment before the renewal of the policy. This amounts to suppression of material fact. He also brought our attention to the non-disclosure of the disease without filling up the proposal form or concealing the details of the disease for which the complainant had treated earlier. Left Inguinal Hernia (LIH) has nothing to do with Carcinoma Colon. In the evidence the complainant asserted that he had informed the agent regarding the treatment underwent by the appellant. In this context it is relevant that the complainant had not taken pain to adduce evidence by calling upon the agent of the opposite party who subscribed him to the policy. The insurance policy is a contract based on utmost good faith. The respondent/complainant is under obligation to reveal the details in the proposal form against column 5. Hence the contract is void-ab initio. The case of Carcinoma Colon and hernia are entirely different factor whether it is related to each other. The relevant factor is suppression of material fact without revealing the existence of a disease prior to the inception of the policy. The appellant undergone medical checkup while issuing the policy is only formal in nature. It is the complainant who had to reveal such disease which is exclusively within the knowledge and he cannot turn around that he is not aware of the disease. It is for the respondent to give correct information of his health which he did not disclose in this case. The information to the insured having suffered from cancer before the policy was taken is exclusively within the knowledge of the respondent. The counsel relied on the decision of the Hon’ble National Commission in the case of L.I.C. of India Vs. Smt. Minu Kalita wherein the insured was suffering from cancer took treatment in the hospital was not disclosed. The insurance contract become invalid abinitio and no deficiency in service can be attributed on the part of appellant in repudiating the claim. He also pointed out the exclusion clause 4.7 “The Company shall not be liable to make any payment under the policy in respect of any claim if 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”. Hence the repudiation justified by the counsel for the opposite parties.
5. The notice was issued to the respondent returned with endorsement that respondent died and Legal Heirs were impleaded as per I.A.851/12 of this Commission. Notice issued to the Legal Heirs returned with endorsement Door Locked and the paper publication was effected and respondent remained absent. It is also evident from the records that he was suffering from Carcinoma Colon and he was relieved from that disease and Left Inguinal Hernia (LIH) is not a disease connected with carcinoma. Hernia is neither a pre-existing disease nor it is associated with cancer. The complainant has no case or claim that he was suffering from cancer. Hence the concealing of the fact of cancer is immaterial and the processing of the claim for Left Inguinal Hernia (LIH) is also immaterial. We have gone through the documents on record. We are of considered view that the respondent claimed the treatment expenses for the LIH (Left inguinal Hernia) which was repudiated by the appellant. The proposal form was filled up by the agent to whom he had disclosed the details of the treatment he had undergone and even regarding the heart disease. As per the statement it is clear that complainant had undergone surgery for cardiatric problem and the surgery marks were visible in her body. It has also come up in evidence that the respondent had undergone medical checkup as part of the procedure for proposal of the policy. The only dispute is with regard to the previous history of treatment taken for cancer colon operation. As per the statement of the respondent he had not suppressed any illness in order to obtain the policy. It is true the details of the Doctors or the treatment taken were not enquired by the agent. It is clear from the document that the policy was renewed in the subsequent years also. In column No.5 regarding heart disease the complainant had given the answer ‘yes’ which means the complainant had not suppressed his heart disease from the proposal form whereas regarding cancer in column 5(7) his answer was in negative. In this case the treatment expenses claimed by the respondent are for Left Inguinal Hernia (LIH). It is not a pre-existing disease or it is connected with cancer. It is also pertinent to note that the opposite parties failed to prove that the disease cancer had in any way connected with Hernia. It is to be pointed out that on concealment of the act or mis-representation a contract cannot be void merely on non-reveal and in consequential mis-statement or non disclosure. It is true that the assured has a duty to disclose his ailment so also he had under gone medical checkup as insisted by the appellant.
6. The relevancy of disclosure of the pre-existing disease is not a relevant factor in this case. We are of the view that hernia was not treated by the complainant earlier and it is not a pre-existing disease. It is also to be pointed out that the opposite parties had not proved in evidence that cancer has in any way connected with hernia. As there is not nexus with the Carcinoma Colon with LIH (Left Inguinal Hernia) we find no ground to repudiate the claim for the treatment taken by the respondent. The respondent is entitled for the treatment charges towards the LIH (Left Inguinal Hernia) and the appellant is liable to pay the claim amount.
In the result, appeal is dismissed and we uphold the order passed by the Forum below. The order is to comply within 30 days on receipt of the copy of the order.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.56/2012
JUDGMENT DATED 07/05/2013
sa
