BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> <br /> PRESENT :<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No. 472/2001 Filed on 16..11..2001 <br /> Dated: 30..06..2008<br /> Complainant:<br /> <br /> P.K. Raveendran, ' Tinku', T.C. 50/1371, Azhimukam Lane, Thaliyal, Karamana, Thiruvananthapuram. Now residing at TC 21/1610(2) Palazhi, KSRA, Nedumcadu, Karamana – P.O.<br /> <br /> (By Adv. Shri. S.K.Pramod)<br /> <br /> Opposite parties:<br /> <br /> 1. National Insurance Company, P.B.No.434, Divisional Office, St. Joseph's Press Building, Vazhuthacaud, Thiruvananthapuram. Represented by its Divisional Manager.<br /> <br /> 2. The Branch Manager, National Insurance Company Ltd., Thiruvananthapuram Division, St. Joseph's Press Building, 2nd Floor, P.B.No.434, Vazhuthacaud, Thiruvananthapuram.<br /> (By Adv. Shri. M. Nizamudeen)<br /> <br /> This O.P having been heard on 22..05..2008, the Forum on 30..06..2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD, PRESIDENT : <br /> <br /> The fact leading to the filing of the complaint is that complainant has availed a Mediclaim Policy from the opposite parties for the purpose of hospitalisation and domiciliary hospitalisation benefit. The opposite parties issued the said policy bearing No. 570200/48/2000/8501165 for a period of 28..11..2000 to 27..11..2001 in the name of the complainant after receiving an amount of Rs. 662/- from him. The policy benefits were extended to the complainant's whole family. The sum assured per person is Rs. 15,000/-. Complainant had availed the said policy believing the advertisements and promises made by the opposite parties that the Insurance Company will pay to the insured person the amount of such expenses not exceeding the sum assured, in case of any disease, illness or any bodily injury through accident. In the month of May 2001, complainant's wife Smt.I.V.Usha Kumari developed some symptoms of illness like sleeplessness, severe head ache, difficulty in breathing etc. As a result on 06..05..2001 complainant took his wife to the G.G.Hospital, Thiruvananthapuram for a thorough check up. After the check up it was revealed that she was suffering from mental distress. Complainant was really shocked at that point of time as there was no such medical history with regard to his wife and apart from that she had never shown any symptom of such distress in what so ever manner. So the complainant openly discussed the problem with doctors in detail and complainant was advised to admit his wife in the hospital. She was admitted in the G.G. Hospital on the same day and she was treated there on in-patient till 23..05..2001. She was under the treatment of Dr. V.K. Ramachandran, M.D.(Psych.) and the treatment as out-patient is still continuing. The Mediclaim policy availed from the opposite parties entitled the complainant to get the reimbursement of the expenses of the treatment. Hence the complainant forwarded a claim. Thereafter the company deputed a person who handed over certain papers and required the complainant's wife to sign the said papers. At that time complainant was away in his business place at Chalai. Complainant's wife requested the person concerned to come over to the house at a time when the husband is available. Under undue pressure complainant's wife signed and gave the said papers. Apart from the signature no other entries were made by the complainant's wife. Complainant was waiting to get reimbursed the money which he had incurred in treating his wife. To his utter shock and dismay the opposite parties vide letter dated 23..10..2001 repudiated the claim putforward by the complainant. The deficiency in service and unfair trade practice committed by the opposite parties caused unnecessary mental agony and pain to the complainant. Hence this complaint claiming Rs.15,000/- with 18% interest from the date of repudiation till date of payment, Rs.10,000/- towards compensation for mental agony and sufferings and cost of the proceedings.<br /> <br /> 2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. On receipt of the claim submitted by the complainant, the opposite parties deputed Independent Investigators to conduct investigation regarding the claim. After conducting investigation agency submitted investigation report dated 06..08..2001. In the said report investigating agency stated that the complainant's wife Mrs. I.V. Usha Kumari was continuously under the treatment of Dr. V.K.Ramachandran at G.G. Hospital, Thiruvananthapuram since 8 years. According to the said investigation report she was suffering from Paranoid Reaction with hyper ventilation due to mental stress tension, worry and fear for a very long period since 1993. Investigation conducted in to the claim thus revealeld that Ushakumari's illness was existing long before the commencement of the policy. The policy issued to the complainant was for the period from 28..11..2000 to 27..11..2001. As per Exclusion No.4.1 of the policy the opposite party is not liable to indemnify the complainant in respect of the pre-existing disease/illness of his wife. The complainant had also suppressed his wife's illness/disease by not disclosing it correctly in the proposal form submitted before obtaining policy, based on which the policy was issued thereby rendering the policy void. Opposite party is liable to indemnify only according to the terms and conditions of the policy. For the above said reasons opposite parties was unable to admit the claim submitted by the complainant. All the averments to the contrary in the complaint are absolutely false and hence denied. Opposite parties have not committed deficiency in service or unfair trade practice; opposite parties have not caused any mental agony, pain or suffering to the complainant. Hence opposite parties prayed for dismissal of the complaint with cost to the opposite parties.<br /> 3. The points that would arise for consideration are:<br /> <br /> (i)Whether repudiation of mediclaim is justifiable?<br /> (ii)Whether there has been deficiency in service on the part of opposite parties?<br /> (iii)Reliefs and Costs?<br /> <br /> 4. To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 and witness was examined as PW2. Exts. P1 to P4 were marked. Assistant Divisional Manager of National Insurance Company has filed counter affidavit and Exts. D1 to D4 were marked on the part of opposite parties.<br /> 5. Points (i) to (iv) : Admittedly, complainant availed a 'Mediclaim Policy' from the opposite parties for the purpose of hospitalisation and domiciliary hospitalisation benefit. Ext.P1(a) is the receipt for Rs. 662/- issued by opposite parties to the complainant for Ext.P1(b) Mediclaim policy (hospitalisation and domiciliary hospitalisation benefit). As per Ext.P1(b), policy No. is 570200/48/2000/8501165, name of the insured is Mr. P.K. Raveendran and period of insurance is from 28..11..2000 to 27..11..2001. Ext.P1(b) mediclaim policy benefits are seen extended to complainant's family including wife and children. The sum assured per person is Rs. 15,000/-. Submission by the complainant is that his wife I.V. Usha Kumari, who is also a beneficiary of the said mediclaim policy, developed some illness and she was admitted before the G.G. Hospital, Thiruvananthapuram for detailed check up and on that occasion it was revealed that she was suffering from mental distress. Complainant's wife was admitted in G.G. Hospital on 06..05..2001 and continued treatment there till 23..05..2001. complainant went on to submit that his wife was treated by Dr.V.K. Ramachandran. Ext. P3 is the discharge summary given by the said G.G. Hospital. As per Ext. P3, the consultant doctor is V.K. Ramachandran. Name of the patient is Mrs.Usha kumari. Date of admission is 06..05..2001 and date of discharge is 23..05..2001. The clinical features mentioned in Ext. P3 are: Difficulty in breathing, sleeplessness, head ache, suspiciousness and seeing vision. Submission by the complainant is that on submission of claim before opposite parties for reimbursement of the expenses of treatment, opposite parties repudiated the said claim. Ext. P2 is the letter regarding repudiation of the said claim, issued by opposite parties to the complainant. As per Ext.P2, Investigations conducted into the above claim have revealed that the claim falls under exclusion 4.1 of the policy. Further in the light of the same as well as the fact that details of previous medical history were not correctly disclosed in the proposal form based on which the proposal was accepted and the policy issued, we (the insurance company) regret our inability to admit liability for the captioned claim. Main thrust of argument advanced by the counsel appearing for the opposite parties was to the effect that as per exclusion No.4.1 of the policy the opposite parties is not liable to indemnify the complainant in respect of pre-existing disease/illness of his wife. Further complainant had suppressed his wife's illness/diseases by not disclosing it correctly in the proposal form submitted before obtaining policy, based on which the policy was issued thereby rendering the policy void. At this juncture, it will be proper to have a look at the evidence adduced by Dr. V.K. Ramachandran, G.G. Hospital. Dr. V.K. Ramachandran was examined as PW2 on 23..12..2003. PW2 admitted that Mrs. Usha kumari was under his treatment at G.G. Hospital. Treatment continued upto 23..05..2001. Further PW2 deposed that Mrs. Usha Kumari was under his treatment for last 8 years and the present episode is about one month back. It is deposed that before working at G.G. Hospital, the doctor was working in Government Service. Mrs. Usha Kumari was his private patient. Further submission was that she was not taking medicine regularly and so she became little violent and so she was admitted at G.G. Hospital. Medical case record of the patient was marked as Ext.P4. In Ext.P4 page No.1 under the caption discharge summary, it has been recorded as old case. PW2 deposed that he knew the patient for the last eight years, but she was admitted for the 1st time. After perusing Ext.P3, PW2 deposed that the patient was given intensive treatment because she was in an aggressive mood. He further stated he has not stated anything false in medical record. From the deposition of PW2 and Exts. P3 & P4, it would be evident that Mrs. Usha Kumari had diseases like mental disorder prior to the taking of policy. Ext. D4 is the proposal form wherein proposal details are given. On page No.3 of the proposal form, item No.12 deals with medical history to be completed by the proposer/insured person. Proposer was directed to answer certain questions in 'Yes' or 'No' and to give full details if answer is 'yes'. To start with 12.1 – Are you in good health and free from physical and mental disease or infirmity or medical complaints. The answer written was 'Yes' 12.2 – If not in good health, give full details which was not answered. Item 13. Are you suffering from or have you ever suffered from any of the following diseases/illness? If yes, give details 13.(a) any nervous, mental or psychiatric disease. The answer given was 'No'. Thus the complainant had suppressed his wife's illness/disease by not disclosing it correctly in the proposal form, based on which policy was issued by opposite parties. For the above said reasons the opposite parties was unable to admit the Ext.D2 claim submitted by the complainant and the complainant was intimated the same by Ext.D1 letter dated 23..10..2001. In this context, the counsel appearing for opposite parties made reliance on the decision of the Supreme Court reported in 2008 (1) KLT 698 (SC) wherein it was held that if a person makes a wrong statement with knowledge of consequence therefor, he would ordinarily be estopped from pleading that even if such a fact had been disclosed, it would not have made any material change. The purpose for taking a policy is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bonafide. It must appear from the face of the record. In a case of this nature it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the contact of insurance, if discovered may lead to the policy being vitiated in law. One great principle of insurance law is that a contract of insurance is based upon utmost good faith “Uberrima fides”. In fact it is the fundamental basis upon which all contracts of insurance are made. Every fact of materiality must be disclosed, otherwise there is good ground for rescission of the contract. The duty to disclose material fact continues upto the conclusion of the contract and also implies any material alteration in the character of the risk which may takes place between proposal and acceptance. In view of the aforesaid discussion we came to the conclusion that the aforesaid mediclaim policy was obtained by the complainant by suppressing the material fact in the proposal form. It appears that complainant secured insurance with fraudulent intention. Therefore complainant is not entitled to any amount of insurance. In the light of what had been observed above, we find that the rejection of the claim by the opposite parties was in observance of policy conditions, rules and regulations. It is clear that repudiation of the claim of the complainant was not without foundation or justification. It appears that the repudiation was after due application of mind and it was not lacking in bonafide. Hence such repudiation is justifiable, which would not amount to deficiency in service. Complaint has no merit at all which deserves to be dismissed.<br /> <br /> In the result, complaint is dismissed. There will be no order as to costs.<br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of June, 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> PRESIDENT <br /> <br /> <br /> <br /> <br /> <br /> BEENA KUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> ad.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 472/2001<br /> <br /> APPENDIX<br /> I. Complainant's witness:<br /> PW1 : Dr. V.K. Ramachandran<br /> <br /> II. Complainant's documents:<br /> <br /> P1(a) : Photocopy of receipt No. 4314 dated 28..11..2000<br /> P1(b) : Photocopy of mediclaim policy No.570200/48/2000/8501165 dated 28..11..2000<br /> <br /> P2 : Photocopy of letter dated 23..10..2001 addressed to the complainant by the 1st opposite party.<br /> P3 : Photocopy of discharge summary of Reg.No.28599 dated 23..05..2001<br /> P4 : Original medical case record of Reg.No. 28599 dated 23..05..2001 (15 papers)<br /> III. Opposite parties' witness: NIL<br /> IV. Opposite parties' documents:<br /> <br /> D1 : Original Investigation report dated 06..08..2001 from N.V. Nair, Director/Investigator of Reliable Investigation Services.<br /> D2 : Original mediclaim insurance policy claim Form<br /> D3 : True copy of Mediclaim policy No.570200/48/2000/8501165 dated 28..11..2000<br /> D4 : “ duplicate<br /> <br /> <br /> PRESIDENT<br /> <br /> <br />