DR. S. M. KANTIKAR, PRESIDING MEMBER 1. Heard the learned counsel for both the parties and perused the material on record. 2. The dispute relates to repudiation of the complainant’s insurance claim, made under the insurance contract entered into between the Insurance Co. and the complainant. 3. The District Forum had heard both sides, appraised the evidence, and, vide its Order dated 31.10.2015, partially admitted the complaint: RATIONALE 5- Issue Nos. 1 to 3– The Opposite Party has raised objection to the jurisdiction of the Forum and given the reference of Hon. Supreme Court in case of Ravneet Singh Bagga v/s KLM Royal Dutch Airlines [(2000) 1 SCC 66] has propounded upon the issue of deficiency in service and has said that only on intentionally providing deficient service the issue of deficient service is proved. In the present complaint the Opposite Party has not, while providing service to the Complainant, intentionally provided deficient service to the Complainant and therefore the present complaint should not be heard in this Forum. Also they have referenced that the Hon. National Forum has propounded the legal principle in the case of Kishore Chandrakant Rathod v/s ICICI Prudential Life Insurance Co. Ltd. and Others (review petition no. 3390/2013) that the Complainant is an educated person and has fully read the terms and conditions of the contract and then taken insurance cover, and for any breach of these conditions resulting in the Opposite Party rejecting the insurance claim the complaint cannot be conducted in front of the Forum. The Opposite Party has said that therefore the Forum has no jurisdiction to conduct the hearing on this complaint. It is proved that after the insurance contract between the Opposite Party and the Complainant, the complainant has not given in writing to the Opposite Party within 15 days of the contract any intimation to cancel the said policy. After the documents submitted by the Complainant to the opposite Party were scrutinized by the specialists appointed by the Opposite Party it was diagnosed that the Complainant had diabetes and the Opposite Party came to know that treatment for the same had been taken and it was verified from the documents submitted by the Complainant but it was established that the Complainant had not disclosed this information to the Opposite Party voluntarily. Therefore it was proved that the complainant had intentionally not given this information to the Opposite Party - - - therefore the Opposite Party has repudiated the Complainant’s insurance claim under section 45 of the Insurance Act 1938, as also under the terms mentioned in condition 5 B (i) of the contract. Therefore the Opposite Party have sent a letter to the Complainant dated 21/12/2012 informing him about the insurance claim being rejected. Since the complainant has breached the terms and conditions of the insurance contract, the Opposite Party has repudiated his claim justly and informed him about it and therefore the Forum does not have jurisdiction to conduct a hearing on the present complaint. Also the Complainant had deliberately withheld from the Opposite Party the information about the Complainant having been diagnosed with diabetes , thus the Opposite Party has no legal obligation to fulfill the insurance claim submitted by the Complainant and so the Opposite Party has committed no deficiency in service to the Complainant and therefore the present complaint should be rejected with expenses under section 26 of the Consumer Protection Act based on the available documents. After stating this, as held by Hon. Supreme Court in the judgments in the cases of United India Insurance Co. Ltd. v/s harchand Rai Chand Rai Chandalal I (2003) CPJ 393 and Vikram Greentech (I) Ltd. & Another v/s New India Assurance Co. Ltd. , II (2009) CPJ 34 and also Export Credit Guarantee Corporation of India Ltd. v/s Garg Sons International [2013 (I) Scale 410 ) ] it was held that breach of terms and conditions of the insurance contract is sufficient reason to repudiate the insurance claim and similarly in the present complaint also the Opposite Party has repudiated the insurance claim on valid reasons. The Opposite Party has repudiated the Complainant’s claim based mainly on the breach of terms and conditions of the insurance contract. On reading the terms and conditions of the insurance contract, it is clear that the said insurance contract has been executed relative to the personal information provided by the Complainant and verification thereof by the Opposite Party with the Complainant before the contract was executed. In the opinion of the Opposite Party, the Complainant deliberately withheld information about his diabetes and its continuing treatment, thereby not following the terms and conditions of the insurance contract, especially condition no. 5 B (I) and therefore the insurance contract is rendered invalid from the date of its inception. Therefore according to the Indian Contracts Act at the time of taking the insurance cover the Complainant has agreed to certain terms and conditions and then breached them by not disclosing the information about his pre- existing illness thereby hindering the basic validity of the insurance contract. The Opposite Party have stated that they have repudiated the insurance claim on the basis of the deliberate withholding of information by the Complainant which is a just reason invalidating the insurance contract and therefore the Opposite Party have not provided deficient service to the Complainant by repudiating the insurance claim. On going through the insurance claim submitted by the Complainant to the opposite Party, the information about the Complainant having been diagnosed with diabetes is not entered. Also before taking the insurance cover the Complainant has undergone complete medical check – up by the specialists of the Opposite Party and after this the insurance contract has come into existence. It is proved by the Complainant’s statements that in the tests done by the Opposite Party’s specialists it was found that the Complainant had no illnesses. Nearly 4 years after the insurance coverage was provided by the Opposite Party to the Complainant he felt the stomach pain for the first time. He has taken the treatment and then duly filed the claim with the Opposite Party. As per the Insurance Act 1938, section 45 it is clearly provided that after expiry of two years after the insurance contract commences the insurance services providing insurance company cannot question the untrue statements related to the insurance contract ; or cannot deny the stated services and also because the Complainant is an elderly person and as such has no reason to withhold any information, therefore it is stated that the insurance claim submitted by the Complainant with the Opposite Party is a valid claim. On a close scrutiny of the Complainant’s insurance claim, it can be seen that as per the terms and conditions only the documents related to the Complainant having taken treatment for diabetes have been submitted by the Opposite Party along with the evidential affidavit. That this was not disclosed by the Complainant in the insurance contract with the Opposite Party is proved by the arguments presented in the opposite Party’s evidential affidavit. An insurance contract is entered into on the basis of true information being given by both the parties. Although it has been proved that all the various terms and conditions of the Opposite Party were not adhered to in the present complaint, the Hon. Supreme Court has stated in the judgment of the case of Amlendu Sahu v/s Oriental Insurance Co. Ltd., 11 (2010) CPJ 9 (SC) that it is just for the Opposite Party to pay to the Complainant 75 % of the insurance claim amount while repudiating an insurance claim for technical reasons. According to this judicial principle and also the Complainant having undergone medical tests by the specialists of the Opposite Party and still the information about the complainant’s diabetes not being disclosed in those tests , the Forum is of the opinion that it is just and fair for the Opposite Party to pay to the Complainant 75 % of the insurance claim amount. It is the opinion of this Forum that by repudiating the claim for some mere technical reasons as also by raising objections to the jurisdiction of this Forum and by stating in their written statement that the Complainant had deliberately withheld information about his diabetes and therefore paying the claim is not just and fair and repudiating the claim, the Opposite Party have provided deficient services to the Complainant. The fact that the Opposite Party has caused financial loss to the Complainant by repudiating his insurance claim is clear from the date of repudiation of the claim and also the date of Final Order in this Complaint. The Complainant has demanded Rs. 2,00,000/- in total from the Opposite Party for compensation for financial loss , mental hardship, physical and financial hardship and expenses for the complaint. Also the expenses for hospitalization and medicines and treatment of Rs. 5,53,375/- totaling Rs. 7,53,375/- is demanded from the Opposite Party . But in the opinion of the Forum, the Opposite Party needs to pay to the Complainant Rs. 1,00,000/- towards financial loss etc. Also as per the judicial principle propounded by the Hon. Supreme Court in the case of Amlendu Sahu v/s Oriental Insurance Co. Ltd., 11 (2010) CPJ 9 (SC) even though the Opposite Party has repudiated the Complainant’s insurance claim for technical reasons , it is the opinion of this Forum that in the interest of equity and justice 75 % of the insurance claim amount Rs. 5,53,375 /- i.e. Rs. 4,15,030 /- must be paid by the Opposite Party to the Complainant. Even though the Opposite Party has requested that this complaint should be rejected with expenses under section 26 of the Consumer Protection Act, they have not provided to the Forum any evidence in support of this objection. Therefore this objection of the Opposite Party is not valid. Therefore, the answer to Issue nos. 1 to 3 is in the affirmative. 6- From the above conclusions the following order is being passed. FINAL ORDER The complaint no. 982/2014 is partially admitted. It is declared that the Opposite Party has provided deficient services to the Complainant by repudiating the Complainant’s insurance reimbursement claim. The Opposite Party is ordered to pay to the Complainant within 60 days of receiving this order 75 % of the insurance reimbursement claim amount i.e Rs. 4,15,030 /- (Rupees Four Lakh Fifteen Thousand Thirty Only) as described in the conclusion above. If the opposite Party does not comply with paragraph 3 above within the time frame mentioned , then the Opposite Party must pay 12 % p.a interest on the insurance claim amount Rs. 4,15,030 /- (Rupees Four Lakh Fifteen Thousand Thirty Only) from 21/12/2012 till the payment of the complete amount to the Complainant. The Opposite Party must pay to the Complainant a total of Rs. 1,00,000/- towards expenses , mental hardship , financial and physical hardship within 60 days of the receipt of this order. True copies of the judgement should be sent to both the parties.
(paras 5 and 6 the District Forum’s Order) (as per translated copy furnished by the revision petitioner) 4. The opposite party Insurance Co. appealed in the State Commission. The State Commission had heard both sides, appraised the evidence, and, vide its Order dated 8.9.2017, dismissed the appeal: [12] On perusal of order passed by the Ld. District Forum it appears that the Ld. District Forum has considered that the claim of complainant cannot be rejected on technical grounds and allowed 75 % claim of complainant on non- standard basis, on the basis of ruling relied on by the complainant. We are of the opinion that when there is no evidence on record that the complainant had deliberately concealed facts about medical health at the time of obtaining policy from the opposite party, Complainant is entitled to get the hospital charges from the opposite party. We are also of opinion that the view taken by the Ld. District Forum that the claim of complainant cannot be rejected on the technical ground and granted 75 % claim of complainant on non standard basis along with compensation, appears to be legal and correct. Under such circumstances, we are of the opinion that the appeal is liable to be dismissed and order passed by the Ld. District Forum is to be confirmed. Hence, we proceed to pass the following order- ORDER 1] Appeal is hereby dismissed with costs. 2] Impugned Order dated 31/10/2015 passed by the Ld. Raigad District Consumer Disputes Redressal Forum ,Alibaug in consumer complaint No. 982 of 2014 is hereby confirmed. 3] Appellant is directed to pay costs of appeal in the sum of Rs. 2,000/- [Rupees Two Thousand only] to the Respondent/ complainant. (para12 of the State Commission’s Order) 5. The opposite party Insurance Co. has filed the instant revision petition under section 21 (b) of the Act 1986 against the said Order dated 8.9.2017 of the State Commission. 6. We find the Order dated 8.9.2017 of the State Commission to be well-appraised and well-reasoned. The State Commission concurred with the District Forum in its findings of deficiency in service. Within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision. And, on the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice. 7. We uphold and affirm the award made by the two fora below in their concurrent findings of deficiency in service. The award of the District Forum shall be made good by the opposite party Insurance Co. within four weeks of the pronouncement of this Order. 8. In addition, however, we further note that it is an admitted fact that the opposite party Insurance Co. had issued “ICICI-Pru Hospital Care Policy” in 2008 and the complainant was paying the premium regularly. The complainant had no illness during 2008 to August 2012, but, due to abdominal pain, he got admitted in Bombay Hospital on 18.09.2012, wherein he was diagnosed as suffering from renal (kidney) ailments. He underwent dialysis, and subsequently kidney transplant was performed. The opposite party Insurance Co. repudiated the insurance claim for hospitalization expenses of Rs. 5,53,375/-. It was repudiated on the ground of non-disclosure of pre-existing medical condition by the complainant at the time of filling the proposal form. The proposal form was filled in the year 2008 (on 29.07.2008). The insured incurred hospitalization charges in the year 2012, and filed his insurance reimbursement claim with the opposite party Insurance Co. However, the opposite party Insurance Co. repudiated the claim by relying principally on one certificate (ext. P-2) issued by one Dr. Rajendra G. Chandorkar which states that Mr. Dattatrey (the insured) was a known patient of diabetes and hypertension for the last 10 years. The verbatim of the certificate is reproduced as under: “This is to certify that Mr. Dattatray B. Gurjar is a regular pt. of mine and regularly comes for follow up regarding minor illness like cold / cough and fever. He is a known pt. of Diabetes & Hypertension, since last 10 years.” 9. The opposite party Insurance Co. relied principally on this one certificate issued by this one Dr. Chandorkar (as mentioned in para 8). It is pertinent to note that the said Dr. Chandorkar is a pediatrician. He is neither a physician, nor an endocrinologist, to certify a person as a ‘diabetic and hypertensive for past 10 years’. Moreover, nothing is on record that the said Dr. Chandorkar has either examined or treated the complainant for diabetes or hypertension in the past 10 years. Ex facie, a suspicious medical certificate was issued. It is not viewed favourably. It prima facie amounts to professional misconduct under the Code of Medical Ethics Regulation, 2002 of the Medical Council of India. The medical record of Bombay Hospital does not, explicitly and categorically, confirm that the complainant was diabetic and hypertensive prior to 2008. Logically, and medically, time or onset of diabetes and / or hypertension cannot be accurately predicted. The complainant could possibly have started suffering from diabetes and / or hypertension subsequent to the year 2008, and it cannot be anyhow averred, on the basis of an ex facie suspicious certificate, that he was suffering from the same prior to 2018. 10. We would not like to turn a blind eye on the issuance of the ex facie suspicious medical certificate by the said Dr. Rajendra G. Chandorkar to unduly help the opposite party Insurance Co. in taking its principal ground for repudiation of the insurance claim. Issuance of such medical certificate is unethical and amounts to professional misconduct, which needs suitable action from the concerned professional regulatory body. To check such unethical medical practices we, thus, direct the Registrar of this Commission to refer this matter to the Maharashtra Medical Council, Mumbai, for the appropriate necessary action against Dr. Rajendra G. Chandorkar, as per the Council’s rules and wisdom. 11. Further, we note that the act of the opposite party Insurance Co. in obtaining (by whatever means and in whichever manner) such suspicious certificate in such facts and circumstances and principally using such certificate to repudiate the insurance claim is an unfair and deceptive act and amounts to unfair trade practice within the meaning of section 2(1)(r) of the Act 1986. For this, in addition to the award made by the two fora below in respect of deficiency in service (which has been upheld and affirmed by us), the opposite party Insurance Co. is put to stern advice of caution in respect of unfair trade practice through imposition of cost of Rs. 5 lakh to be deposited in the Consumer Legal Aid Account of the District Forum, within four weeks of the pronouncement of this Order. 12. The revision petition of the opposite party Insurance Co. is dismissed, with directions as above (paras 7, 10 and 11). 13. Needless to add that the District Forum shall undertake execution as per the law. 14. A copy each of this Order be sent to the District Forum and to the complainant within ten days by the Registry. A copy each of this order be sent to the Maharashtra Medical Council, Mumbai and be placed before the Registrar of this Commission within ten days by the Registry. |
