Kerala

Kollam

CC/06/279

M.Samad, Kottayil Changankulangara Muri - Complainant(s)

Versus

Divisional Manager, New India Assu. Com. Lt., Othr - Opp.Party(s)

Oachira A.Isahackkutty

27 Apr 2009

ORDER


C.D.R.F. KOLLAM : CIVIL STATION - 691013
CONSUMER DISPUTES REDRESSAL FORUM ::: KOLLAM
consumer case(CC) No. CC/06/279

M.Samad, Kottayil Changankulangara Muri
...........Appellant(s)

Vs.

Divisional Manager, New India Assu. Com. Lt., Othr
Branch Manager, New India Assurance Company Ltd., Medayil Complex
...........Respondent(s)


BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

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SRI.K. VIJAYAKUMARAN, PRESIDENT.

 

          Complaint claiming insurance amount of Rs.43384/-, compensation of Rs.10,000/- and costs.

The averments in the complaint can be briefly summarized as follows:

 

          The complainant has been a subscriber of Mediclaim Insurance Policy issued by the 1st opp.party.    The authorized agent came to the house of the complainant and explained  the benefits  and importance of the health medical expenses policy and because of the  compulsion and instigation  the complainant had joined the said policy for himself  and his family consisting of 2 members.  .  The complainant paid Rs.2819/-  on 26.4.2004  to the said agent  and subsequently a policy was issued .  The validity of policy period was from  27.5.2004 to 26.5.2005.  On January 2005 the complainant developed back pain and out of severe back pain he consulted Dr. Cheriyan Thoma, S.P. Fort Hospital, Thiruvananthapuram on 28.3.2005 and after elaborate check up the doctor  opined that the complainant has intervertabal Disc prolapse L4.L5 with right Sciatica.  Hence as advised by the Doctor the complainant  was admitted  in  the SP Fort Hospital and undergone a surgery on 9.4.2005.  He was discharged on 14.4.2005.   When the complainant preferred a claim for reimbursement of the amount his claim was repudiated.  Hence the complaint.

 

The opp.party filed a version contending interalia, that the complaint is not maintainable either in law or on facts.   The complainant is filed as an experimental measure.  It is true that the complainant has taken  a Health plus medical expense policy  for a period of  one year from 27.5.2004 to 26.5.2005.  But the opp.parties are not liable to make any payment  in respect of expenses incurred by the insured under the exclusion clause of the policy.  The complainant has pre-existing disease and  under clause 3.4  the insurer has no liability  in the event of misrepresentation, misdiscription or non discloser of material facts If such claim be in any manner fraudulent or supported by any fraudulent means or advice  whether  by the insured person or any person acting on his behalf .  More over the type of  decease  for which treatment was availed  are completely excluded in the policy under the exclusion clause.   The averments that on January onwards the complaint felt back pain and for severe back pain  he consulted Dr. Cheriyan Thomas, S.P. fort Hospital,  on 28.3.2005 and found that he had Disc prolapse  L4-L5 with right Sciatica etc.  are absolute falsehood.  The complainant had pre-existing decease and discomfort of the type as mentioned above from 2001  onwards.  The complainant sustained injuries on hip right and dislocation in a motor accident happened on 2.11.2001 and from 3.11.2001 onwards he was under the treatment of the said doctor.  He had symptoms of back pain also in connection with the injuries  sustained in the said accident.  He filed a petition before the MACT, Kollam as OP[MV] No.1736/2001.  The complainant was continuing treatment  for back pain also long prior to the date of commencement of the policy.  The complainant  was  deliberately suppressing  the pre existing injuries  sustained in and earlier treatment done  for the same.   The back pain is a  subsequent discomfort of the injuries which was subsisting at the time f when the proposal form for the policy was submitting.  In the questionair in the proposal form with regard to the medical history to be disclosed by the proposer or insurer, he   falsely stated that he is in good health and free from  physical infirmity or medical complaints. The non disclosure amounts cheating against the insurer.  When the claim application was received the opp.party made all  investigation with a view  to ascertain the facts through a qualified investigator who conducted detailed investigation report that the complainant was suffering  from the above said  decease from 3.11.2001 onwards  Therefore the claim was repudiated. According to expert medical opinion interverterbral disc prolapse  and back pain can  been caused due to fall on a hard object, road accident and consequent injuries  on the  backbone etc.   The complainant’s back pain  can be  caused due to the complications developed after the road accident, which is long prior to the date of commencement of the policy.  The complainant  was fully  aware of the disc prolapse  before  submitting the proposal form.  The complainant  has deliberately took the policy before the date of surgery by knowing the necessity  of  the surgery to be done by suppressing the material facts.    The complainant is lnot entitled to get any relief from the opp.parties.   The complainant  has no cause of action, hence the opp.party prays to dismiss the complaint with their costs.

Points that would arise for consideration are:

1.                         Whether  the complainant was suffering from  any preexisting disease at the time of taking the policy.

2.                         Whether there was any suppression of material facts  which would the vitiate the insurance policy.

3.                         Reliefs and costs.

For the complainant PW.1 is examined.   Ext.P1 to P6 are marked.

For the opp.parties DW.1 is examined.   Ext. D1 to D10 are marked.

Points:

It is not disputed that the complainant is an insured of the opp.parties and that at the time when the complainant has under gone surgery the policy was subsisting.   According to the complainant he has incurred an expenditure of Rs.43384/- for his treatment at S.P. Fort Hospital Trivandrum and  when he preferred  the claim for the above sum, the opp.parties repudiated his claim without  any valid reason.

 

The opp.parties contents that the complainant was having pre-existing disease at the time of taking Ext.P1 policy and therefore under exclusion 2 [1] of the policy.   The opp.parties are not liable to make any payments  under policy in respect of any claim incurred in connection with or in respect of disease which are pre-existing.  It is argued by  the learned counsel for the opp.parties that the complainant had sustained an accident  earlier for which he had under gone treatment at the SP. Fort hospital, Thiruvananthapuram  evidenced by Ex. D4 and D5. which are respectively  the claim petition before the MACT., Kollam and the award passed by the MACT allowing a sum of Rs.65,400/- as compensation.  The definite contention of the opp.parties is that the back pain alleged to have been developed  by the complainant is a consequence of the above accident and  consequent  surgery.  In the version the opp.parties have raised a contention that the complainant sustained road traffic accident and the back pain developed by  the complainant is a consequence of the such accident which occurred prior to the taking of policy. Despite such an averment in the complaint, the complainant did not make any attempt to prove that the back pain developed by him in the year 2005 is not due to the accident and consequential surgery by examining competent persons.  Therefore, there is considerable force in the contention of the opp.parties that the back pain was a pre-existing illness.

 

The 2nd contention advanced by the opp.parties is that there is material suppression on the side of the complainant.  It is argued that inExt. D3 proposal form under medical history the complainant has stated false information which would vitiate  a contract of insurance.  Under  the clause Medical history of Ext.P3  Are you in good health and free from physical and mental disease or infirmity  it is stated Yes.  Under 2nd item have you even suffered from any illness or disease  upto the date of making the proposal.  The answer given is no  Under 3rd  item do you have any physical defect or deformity, the answer is no.  Under 4th  item have you ever been admitted to any hospital/nursing home/clinic for treatment or observation ?  the answer given is no.    According to the opp.parties the answers  given above by the complainant are false which can be seen from Ext.D4 and D5 which would establish beyond doubt that the complainant sustained injuries for which he has undergone treatment and received compensation from the Motor Accident Claim Tribunal, Kollam.  It is further argued that these are material suppression which would vitiate the  contract of insurance.

 

It is well settled that the contract of insurance is a contract Uberrimafides and every fact of material must be disclosed.  Otherwise there is good ground for recession of contract.   The duty to disclose of material facts  continues  right up to the conclusion  of the contract.  The learned counsel for the opp.parties  argued that the proposal can be repudiated if a fraudulent act is discovered at any time   The complainant’s  counsel would argue that the entries in the proposal form were made by the agent of the opp.party and there is no  fraudulent act on the side of the complainant. That argued cannot be accepted.  Even assuming that  an agent of the insurance company has fill in the application the  information for the same must have been furnished  by the complainant and the liability of the information furnished in the proposal form can only be to the person who puts his signature on the proposal form.  It cannot be believed by any stretch of imagination that the complainant was not aware of the fact that he sustained injuries in the road accident and had undergone treatment at the time of taking policy.

 

          In the Supreme Court decision reported in 2008 [1] KLT 698 it was held that 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  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 contract of insurance if discovered may lead to the policy  being  vitiated in law.

In that decision the policy was repudiated on the ground that the proposor has given wrong answers to the question in the proposal form.  In that case for the question did you ever have any operation accident or injury ?the answer was no.  In that case the  insured has undergone a surgery for adenoma thyroid prior to the taking of policy but he had subsequently due to another illness.  Supreme court held  that  it is not for the  insurer to establish that  the suppression was fraudulently made by the policy holder  or that he must have been  away  at the time  of making the statement that the   same was  false or the fact was suppressed which was  material to disclose.  It was further  observed therein that   the principle underlying the doctrine of disclosure  and the rule of good faith oblige   the proposer to answer  every question put to him with complete honesty  The non disclosure of the previous surgery by the proposer was deliberate or not,  the opp.parties can repudiated the claim on the ground of  material suppression.  In these circumstances we are of the view that the repudiation cannot be interfered with.   There is also no deficiency in service on the part of the opp.parties.  Point found accordingly.

In the result the complaint fails and the same is hereby dismissed  with their costs.

Dated this the     27th    day of April, 2009

 

 

I N D E X

List of witnesses for the complainant

PW.1. – M. Samad

List of documents for the complainant

P1. – Policy certificate

P2. – copy of notice 

P3. – Repudiation letter

P4. – Discharge summary

P5. certificate dated 5.8.2005

P6. – Certificate dated 24.9.2005

List of witnesses for the opp.parties

DW.1. -  R. Rudran Nair

List of documents for the opp.parties

D1. – Copy of Policy

D2. – Policy condition

D3. – Proposal Form

D4. – Claim petition

P5. – Copy of Award

D6. – Copy of FIR

D7. – Medical Certificate

D8. – Discharge summary

D9. – Medical certificate attached to the claim form

D10. – Medical Bill from SB fort Hospital