Punjab

StateCommission

A/11/1627

ICICI Lombard General Insurance Company Ltd. - Complainant(s)

Versus

Dhiraj Kumar - Opp.Party(s)

R.S.Dhull & Pooja Dhull

11 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No. 1627 of 2011

 

                                                Date of Institution: 11.11.2011.

                             Date of Decision  : 11.02.2015.

 

1.       ICICI Lombard General Insurance Co. Ltd., through its Chairman-        cum-Manging Director, Zenith House, Keshavrao Khadye Marg,   opposite Race Course, Mahalaxmi, Mumbai-400 034

2.       ICICI Lombard General Insurance Co. Ltd., through its Branch   Manager, Mall Road, Ludhiana, now at SCO No.507, Sector 70,     Mohali through its Legal Manager Inderjit Singh.

                                                     …..Appellants/opposite parties

Versus

 

Dhiraj Kumar S/o Sh. Ram Niwas Sharma, r/o H.No.116, Sector 5-B, New Shastri Nagar, near Baba Balak Nath Mandir, Mandi Gobindgarh, Distt. Fatehgarh Sahib.

                                                     ….Respondent/complainant

    

First appeal against order dated 26.08.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

 

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.   

Present:-

 

     For the appellants            :     Sh. R.S. Dhull, Advocate

     For the respondent :     Sh. Vishal Gupta, Advocate

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                 

                    The appellants (opposite parties in the complaint) have directed this appeal against the respondent herein (complainant in the complaint) impugning order dated 26.08.2011 of District Consumer Disputes Redressal Forum Ludhiana, (in short, “the District Forum”) in favour of the complainant and against the OPs, to disburse the insured amount under the policy to the complainant along with interest @ 9% per annum and litigation expenses of Rs.50,000/-.

2.                 The complainant Dhiraj Kumar has filed the complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred as "Act") against the OPs on the averments that he took health insurance/medi claim insurance policy of the OPs by paying the amount of Rs.15,000/- as premium on 06.12.2007 for the period 06.12.2007 to 05.12.2008. The complainant was assured by the OPs at the time of medi claim insurance policy, in case he fell ill and the amount of treatment incurred by him thereon, the company shall bear all the medical treatment expenses. The complainant is permanent employee of M/s Shakti Steel Rolling Mills, Village Jassran, (Amloh Road) Mandi Gobindgarh, which is covered under ESI Act, vide employee's code No.12/12888/53 dated 04.01.2005. The complainant suddenly fell ill and suffered from urinal and toilet problems and he approached the ESI Hospital at Mandi Gobindgarh. The condition of the complainant became serious and he was referred by the ESI Hospital to PGI, Chandigarh. The complainant was admitted at PGI Chandigarh and was found suffering from Chronic Renal Failure and was advised to undergo regular dialysis to sustain his life. The complainant was advised to undergo haemodialysis at any centre outside PGI at least twice a week. The complainant received regular treatment and regular dialysis from Dharam Hospital #2040, Sector 15-C, Chandigarh as per advice of the Nephrology Department of PGI Chandigarh. The doctors of PGI, admitted the complainant thereat on 18.05.2008 for renal transplant and his kidney was transplanted on 19.05.2008 by surgical operation and the complainant remained admitted in PGI upto 29.05.2008. The complainant spent huge amount on his kidney transplant operation. The complainant submitted insurance claim of Rs.2,64,664/- for reimbursement of the expenses to the OPs by completing the formalities. The OPs have not honored the insurance claim of the complainant and they are, thus, deficient in service. Legal notice dated 18.06.2009 was served upon the OPs by the complainant, but to no effect. The complainant has prayed that OPs be directed to reimburse the amount of Rs.2,64,664/- actually spent by him on his medical treatment besides Rs.1,00,000/- as special compensation for mental and physical harassment Rs.10,000/- as food and journey expenses and Rs.10,000/- as costs of litigation. The complainant has also prayed that interest thereon @ 9% p.a. from the date of submission of insurance claim till final payment be also awarded to him.

3.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently.  It was averred in the preliminary objections by the OPs that the complaint is barred under Section 26 of the Act. That similar complaint was earlier filed on the same cause of action and the same had been withdrawn and hence the second complaint on the same cause is not maintainable. They further pleaded that the insurance claim of the complainant was repudiated "as no claim", vide letter dated 20.05.2009 on the ground that this did not fall within the purview of insurance policy, as per exclusion clause 2.2 thereof. The factum of taking the medi claim insurance policy by the complainant is not disputed by the OPs for the period 06.12.2007 to 05.12.2008. The OPs resisted the complaint of the complainant primarily on the ground that complainant was already suffering from pre-existing illness of kidney and he suppressed this material fact when taking the insurance policy, resulting into nullifying the contract of insurance. It was denied by the OPs that complainant approached ESI Hospital at Mandi Gobindgarh and his condition became worse and he was then referred to PGI Chandigarh. It was pleaded that complainant was suffering from urinal and toilet problem prior to obtaining the insurance policy, but he concealed this material fact from the OPs, while taking the insurance policy. The OPs pleaded that complainant suffered from chronic urinal failure and had not disclosed this material fact, while taking the policy. The OPs denied any deficiency in service on their part. The OPs prayed for dismissal of the complaint.

4.                 The complainant tendered in evidence his affidavit Ex.C-A along with other documents Ex.C-1 to C-69 and closed the evidence. In rebuttal of it, OPs tendered in evidence affidavits of Gurpreet Bhullar, Manager Legal of OPs Ex.RW1/A and G.Satish Raju, Chief Executive Officer of M/s TTK Healthcare TPA Private Limited Ex.RW2/A along with documents Ex.R-1 to Ex.R-30 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana accepted the complaint of the complainant, vide order dated 26.08.2011 directing the OPs to disburse the insured amount under the policy to the complainant along with interest @ 9% per annum and cost of Rs.5000/-. Dissatisfied with the order of District Forum Ludhiana, the OPs now appellants have preferred this appeal against the same.

5.                 We have heard the learned counsel for the parties and have also examined the record of the case. The affidavit of the complainant in support of his pleas is Ex.C-A on the record. The order of the District Forum Fatehgarh Sahib dated 11.06.2010 in complaint No.29 of 27.08.2010 between the parties is on the record is Ex.C-1, Ex.C-2 is the Cashless Health Card of complainant, Ex.C-3 is the insurance policy documents containing terms and conditions thereof, Ex.C-4 is the letter addressed to complainant by the OPs with regard to taking the policy, Ex.C-5 is the premium certificate, Ex.C-6 and C-7 are the copies of certificates issued by Dr. Ajay Kumar Aggarwal of Dharam Hospital Chandigarh stating that case of the complainant is end stage renal failure and complainant is on intermittent maintenance haemodialysis at his centre w.e.f. 15.04.2008 to 15.05.2008, Ex.C-8 is the ultrasound report of the complainant.  The ultrasound report records the case of complainant as chronic renal disease, discharge summary of complainant is Ex.C-9 issued by PGI Chandigarh, the dialysis started on 15.03.2008, date of admission 18.05.2008 and surgery date is 19.05.2008, Ex.C-10 is the transplant surgery OPD card issued by the PGI Chandigarh to the complainant. Ex.C-11 to C-65 are the copies of the documents, some of them are the copies of bills and the rest are the treatment record of the complainant.

6.                In rebuttal of its, the OPs relied upon the affidavit of Gurpreet Bhullar, Manager Legal of OPs Ex.RW1/A, who swore in this affidavit that complainant filed the similar complaint on the same cause of action earlier and hence second complaint thereupon is not maintainable. He admitted this fact that complainant was insured for medi health claim insurance by the OPs. He further stated that OPs are not liable to pay any compensation to the complainant because complainant has suppressed the material fact of his chronic illness of kidney disease, while taking the insurance policy. Ex.RW2/A is affidavit of G.Satish Raju, Chief Executive Officer of M/s TTK Healthcare TPA Private Limited, who also swore in this affidavit that complainant concealed the material fact of his prior ailment at the time of taking the policy and reference was made to the documents Ex.R-1 to R-30 on the record.

7.                 On hearing the submissions of learned counsel for the parties and from perusal of the record, we find that the factual backdrop regarding taking insurance by the complainant and he is falling ill and then undergoing kidney transplant are not in dispute. The only point contended by the OPs now appellants before us forcibly is that complainant was suffering from pre-existing disease of kidney and he concealed this material fact, while taking the insurance policy of his medi claim health and thereby it stood rendered invalid. The District Forum observed in the order under appeal this case that complainant was not aware of his kidney problem, when he took the insurance policy. The sheet-anchors submission of the appellants is the exclusion clause 2.2 of the insurance contract Ex.C-3 between the parties.

8.                From conclusion of entire evidence on the record and hearing the respective submissions of the concerned parties, we find that it is proved on record that complainant was suffering from pre-existing disease of kidney, when he took the insurance contract in this case. There is the material evidence on record to support this finding. The insurance policy was taken by the complainant from the OPs on 06.12.2007 covering the period from 06.12.2007 to 05.12.2008. The commencement of the contract of insurance is 06.12.2007. The complainant has not disclosed, while taking the contract of insurance on 06.12.2007 that he was suffering from any pre-existing disease of kidney ailment. Vide certificate of doctor of Dharam Hospital Ex.C-7, the complainant was advised medical rest leave from 15.04.2008 to 15.05.2008 due to end stage renal failure and he was to be on intermittent maintenance haemodialysis. The report of ultrasound PGI Chandigarh dated 23.02.2008 has recorded the fact of the complainant being a patient of chronic renal disease. The word chronic is recorded in the ultrasound report Ex.C-8 of PGI of the complainant. The word chronic means he was suffering from this disorder much time earlier, it has not developed abruptly in him overnight. The dialysis of the complainant started on 15.03.2008 at PGI Chandigarh, vide Ex.C-9. The creatinine level of the complainant was high within 30 days period of commencement of policy as per discharge summary. The value of the same is 12.19mg on 20.02.2008, Ex.C-9 is the discharge summary of complainant, which is the document of PGI Chandigarh and it cannot be said to be a wrong document. It has recorded the Serum creatinine level value 9.4.mg in December 2007 of the complainant and within period of 30 days only from the date inception of the policy. Ex.C-9 is the document of PGI Chandigarh, being discharge summary of complainant, which establishes this fact on the record that complainant was already suffering from kidney disease, when he took the insurance policy, and due to this his level value of serum creatinine was 9.4mg in December 2007 as recorded in the discharge summary of complainant by PGI Chandigarh. It can safely be concluded from this point that complainant was already suffering from kidney problem, when he took the insurance policy. The dialysis of the complainant started on 15.03.2008 after three months period only from the date of commencement of the policy. The word chronic renal failure problem is recorded in the record of PGI, which indicates that complainant was already patient of kidney disease, when he took the insurance policy. We do not agree with the reasoning of the District Forum that complainant was not aware of it. It does not develop overnight and word chronic indicates that complainant was already suffering from it. This finding is, thus, recorded by us on the basis of above referred evidence, which finds sufficient corroboration on the record from the treatment record of the complainant, as discussed above.

9.                Once, we have come to this conclusion that complainant has not disclosed this material fact of his being patient of kidney disease, when he took the insurance policy. Clause 2.2 of the contract of insurance Ex.C-3, excludes any pre-existing illness from the scope of insurance contract. Clause 2.2 further lays down that any illness commencing  within 30 days of inception date of the policy also is in the exclusion clause. We, thus, conclude that since complainant is proved to be suffering from pre-existing disease of kidney, when he took the insurance contract in question and as such his claim is squarely falls within the exclusion clause, vide clause 2.2 of the insurance contract Ex.C-3. This is the case of suppressio vari on the part of the complainant, rendering the contract of insurance is invalid. The contract of insurance is based on utmost good faith. The District Forum has not considered this important aspect of the case in the order under challenge in this case. The order of the District Forum cannot be sustained in this appeal in view of law laid down by the Apex Court in Satwant Kaur Sandhu   Versus New India Assurance Company in appeal No. 2776 of 2002 decided on 10.07.2009, to the effect that the insurance company is within its right to repudiate the claim, in case of any pre-existing disease. Consequently, the contract of insurance is rendered void, which is based on utmost good faith. The order of the District Forum is, thus, liable to be reversed in this appeal.

10.               As a result of our above discussions, we accept the appeal of the appellants and set aside the order of the District Forum Ludhiana dated 26.08.2011. The complaint of the complainant now respondent in this appeal stands dismissed accordingly.

11.               The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing this appeal. This amount along with interest, which has accrued thereon, be remitted by the registry to the appellant No.2 by way of a crossed cheque/demand draft after the expiry of 45 days.

12.               Arguments in this appeal were heard on 06.02.2015 and the order was reserved. Now the order be communicated to the parties.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

February  11 , 2015.                                                                                  

(MM)