Heard.

2.     These two revision petitions have been filed against the judgment dated 01.04.2019 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission’) in First Appeal no. 580 of 2018.

3.     The brief facts of the case are that Gaurav Handa (Since deceased) the husband of the respondent – Pooja Handa purchased a health Insurance policy from the opposite party/ petitioner. The insured submitted the treatment bills for the Cancer under the said policy. However, the petitioner insurance company rejected the claim under exclusion clause no 4.3, which reads as under:

        “4.3   Permanent exclusions

        a.     Any claim in respect of any insured person for arising out of or directly or indirectly due to any of the following shall not be admissible unless expressly stated to the contrary elsewhere in the policy terms and conditions.

(xxiv) Act of self-destruction or self-inflicted injury, attempted suicide or suicide while same or insane or illness or injury attributable to consumption use, misuse or abuse of tobacco, intoxicating drugs and alcohol or hallucinogens.”

4.     The insured preferred a consumer complaint being Consumer Complaint no. 655 of 2017 before the District Consumer Disputes Redressal Forum, Amritsar (‘the District Forum’) for payment of medical bills. The complaint was resisted by the opposite party on the same ground on which the claim was repudiated. The District Forum, however, allowed the claim and directed the insurance company to pay Rs.9,01,270/- along with Rs.10,000/- as compensation and Rs.5000/- as cost of litigation. The opposite party preferred an appeal before the State Commission being First Appeal no. 546 of 2018. The complainant has also preferred an appeal being FA no.580 of 2018. The State Commission dismissed the complaint of the opposite party, however, the appeal of the complainant was allowed and interest @ 9% per annum has been ordered to be paid to the complainant by the insurance company.

5.     Hence, the present two revision petitions.

6.     Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner/ insurance company stated that the complainant himself had given the information at the time of filling the proposal form that he was smoking 3-4 cigarettes daily and was consuming alcohol every week. Thus, it is clear that cancer was caused due to smoking and intake of alcohol by the insured. During the pendency of the case before the District Forum, the insured died and the matter was contested by his wife Pooja Handa. It was further stated that the matter was got examined by the doctor of the insurance company who has given a clear opinion that this type of cancer can develop due to smoking and intake of alcohol. The opinion given by the treating doctor by way of an affidavit before the District Forum is that this type of cancer may be caused due to injury created by Molar tooth on the tongue. The District Forum and the State Commission both have agreed with the findings given by the treating doctor and allowed the claim. When the insured himself has admitted that he has been smoking 3-4 cigarettes daily and consuming alcohol on weekly basis, no other proof is required for proving that cancer would have been caused due to smoking and intake of alcohol. Once these facts are established, under exclusion clause no. 4.3, claim cannot be paid. Learned counsel for the petitioner further stated that even if the claim is considered to be justified, awarding interest in the matter cannot be justified because there is no such clause in the policy that interest will be paid on the claim amount.

7.     On the other hand, the learned counsel for the respondent / complainant states that there is no proof that the cancer has been caused due to smoking and intake of alcohol. Generally oral cancer is caused by chewing tobacco. Further, the report of the doctor of the insurance company has been given on the basis of medical papers submitted by the complainant and the doctor has never examined the patient. The treating doctor has filed an affidavit before the District Forum clearly stating that this kind of cancer can be caused due to injury by molar tooth and therefore, it cannot be ascertained whether the cancer has been caused due to smoking and intake of alcohol. Clearly, if it is not certain that the cancer has been caused due to intake of alcohol or due to smoking, exclusion clause 4.3 cannot be applied in the present case. Clearly, the benefit of doubt is to be given to the insured/ complainant. He further stated that interest of 9% is totally justified because, the complainant has suffered a lot. The District Forum has granted payment of medical bills only along with meagre compensation and cost of litigation.

8.     I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material on record. Both the fora below have given a concurrent finding so far as deficiency on the part of the insurance company is concerned. Both the fora have also given a finding that the cancer has not been caused due to smoking and intake of alcohol and they have relied mainly on the report of the treating doctor that the cancer might have been caused due to injury from the molar tooth. Against the concurrent finding by the fora below, the facts cannot be reassessed by this Commission in revision petition as held by the Hon’ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

9.     It is also seen from the record that there is no record on the file to show that cancer has been caused due to intake of alcohol or smoking though, the doctor of the insurance company after examining the medical record has given his report to this effect. Clearly, there is no report given by any doctor who had examined the patient before his death nor there is any treatment record or discharge summary which mentions this fact. Therefore, without any report given by any treating doctor that the cancer was caused due to intake of alcohol and smoking, the assertions of the doctor of the insurance company or of the insurance company cannot be accepted. Hence, I do not find any merit in the assertion made in the revision petition that the case of the complainant is covered under the exclusion clause 4.3.

10.    Coming to the question of interest, it is seen that the District Forum has not awarded any interest on the insurance amount, however, the State Commission has allowed interest @ 9% per annum. In the present interest scenario 9% per annum interest seems to be on a higher side as there is no agreement to pay interest on the medical bills and in my view interest of 6% per annum will be reasonable and justified, in the facts and circumstances of the case. Moreover it seems that the State Commission had awarded interest from the date of rejection of claim but this is not accepted in principle. The accepted principle is that the interest is payable from the date of filing of the complaint. Accordingly, the order of the State Commission is liable to be modified.

11.    Based on the above discussion, the revision no. 1220 of 2019 is dismissed and RP no. 1221 of 2019 is partly allowed wherein the order of the State Commission is modified to the extent that the rate of interest shall be 6% per annum and the same shall be payable from the date of filing of the complaint, i.e., from 18.09.2017 till the date of payment.

12.    Learned counsel for the petitioner seeks four weeks’ time to comply with this order. Order be complied within four weeks from the date of receipt of this order.