Haryana

Karnal

363/2013

Davinder Singh Bali S/o Kishan Singh Bali - Complainant(s)

Versus

ICICI Prudential Life Insurance Company., Sachin Gupta Associate Manager., Vikash Sharma, Business M - Opp.Party(s)

Vihal Kundi

09 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                               Complaint No.363 of 2013

                                                               Date of instt.21.08.2013

                                                               Date of decision:24 .08.2015

 

Davinder Singh Bali son of late Sh.Kishan Singh Bali r/o House No.10, Minar road, Karnal.                                         

                                                                  ……….Complainant.

                             Versus

 

1.ICICI Prudential life Insurance Company Ltd. ICICI Prulife Towers, 1089, Appasahed Maratha Marg, Prabhadevi, Mumbai 400 025.

 

2.Mr.Sachin Gupta, Associate Manager,

 

3.Mr. Vikas Sharma, Business Manager, ICICI Prudential Life Insurance Company Ltd. SCO No.255-256, Sector 12, Urban Estate, Karnal.              ……….Opposite Parties.

 

                   Complaint u/s 12 of the Consumer

                   Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Smt. Shashi Sharma ………Member.

                   Sh.Anil Sharma ……………..Member.

 

 

Present         Sh.Vishal Khundi Advocate for the complainant.

                   Sh.Vikash Chauhan Advocate for the Ops.

 ORDER:   

 

                   This complaint u/s 12 of the Consumer Protection Act, 1986 has been filed by the complainant on the averments that he purchased  a medical insurance policy No. 1670573 on 13.6.2012 from Opposite Party ( in short OP)  for Rs.40,000/-. The Ops no.2 and 3 got signed some blank forms from him on the pretext that they  would fill  details themselves  and get policy issued.   In the application  for the said policy, they included name of his wife Smt. Sarabjeet Kaur and their three children. He had disclosed to Ops no.2 and 3 that none of his family members had medical history except his wife, who was recently hospitalized for treatment of fever.  He and his wife were called for  medical check up and the medical checkup was conducted by the doctor duly authorized by the OPs. When he received the policy, he found that some wrong informations were mentioned in the proposal form and he immediately informed the Ops no.2 and 3  in that regard and asked them to get those informations rectified and they promised to do so, but the informations were never corrected. It has further been submitted that in January, 2013 his wife felt some uneasiness and after thorough check up she was diagnosed of Arterial septal defect commonly known as ASD and a case of left and right chambers of heart having opening between them.  She was admitted in the hospital on 6.2.2013 and surgery was conducted.  The policy was cashless one and he told the hospital authorities about the same but at the time of discharge, hospital authorities told that Ops had refused to provide cashless benefit, therefore, he had to make the payment of Rs.4,28,145/- as per bill dated 8.2.2013.  OP No.1 had assured for early settlement of the claim, but on 17.5.2013 he received letter regarding repudiation of the claim on the ground that medical history prior to proposal was not disclosed in the proposal form.  He again wrote letter to the OP no.1 on 3.6.2013 for re-consideration of the claim but vide letter dated 11.7.2013, the OP confirmed the repudiation. The repudiation of the claim was completely wrong, unjustified and illegal. In this way, there was deficiency in services on the part of Ops which caused mental agony and harassment to the complainant apart from financial loss.

2.                Notice of the complaint was given to the Ops who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that complaint is not maintainable in view of Section 45 of the Insurance Act, 1932, as the complainant gave false information in the proposal form regarding health of his wife; that complainant has suppressed material facts and that the complaint has been filed just in order to harass the Ops and claim  unjustified money from them.

                   On merits, it has been submitted that policy was issued by the OPs on the basis of information provided by the complainant and his wife in the proposal form.  It was not disclosed in the proposal form that wife of the complainant was diagnosed of type II Diabetes Mellitus with Hypertension with Hypovitaminosis D with Urosepsis with  Diabetic Ketosis with Uncontrolled Hyperglycemia and was given treatment for the same on March 21,2012. She was  further diagnosed  Diabetic Ketoacisosis.  Thus, life assured had knowledge of her adverse  medical condition and suppressed the same from Ops, which led to issuance of the policy.  On 6.2.2013,  wife of the complainant was again hospitalized for Diabetes Mellitus with Hypertension and Hypothyroidism with Ostium Secundum Atrial Septel Defect (Left to Right Shunt), therefore, Ops had right to repudiate the claim of the complainant on the ground of concealment of material facts. The claim was repudiated by a speaking order and there was no deficiency in services on the part of Ops.  It has also been averred that compensation claimed by the complainant is arbitrary, without any basis and abuse of the process of law.  The complaint is frivolous and vexatious, therefore, liable to be dismissed u/s 26 of the Consumer Protection Act.

3.                In the evidence of complainant, he filed his affidavit Ex.C1 and documents Ex.C2 to Ex.C9.

4.                On the other hand in the evidence of Ops, affidavit of Sudha Sharma, Associate Vice President, Legal  and copy of proposal form have been produced. However, they did not tender the evidence despite granting last opportunity and their evidence was closed vide order dated 18.11.2014.

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

6.                The complainant for himself and family members including his wife Smt.Saravjeet Kaur obtained insurance policy from OP no.1 through Ops No.2 and 3 who were agents of the OP No.1. The policy was to commence on 13.6.2012.  In January, 2013 Smt. Saravjeet Kaur felt uneasiness and after checkup she was diagnosed of Arterial septal defect (ASD).  She was admitted in the hospital on 6.2.2013 and operation was conducted.   On 8.2.2013 she was discharged. The amount of Rs.4,28,145/-  was received by the hospital from the complainant. The claim was submitted by the complainant to the OP no.1, but the same was repudiated on the ground that medical history prior to proposal was not disclosed in the proposal form.

7.                The learned counsel for the Ops put a great thrust upon the contention that prior to submission of the proposal form, Smt.Saravjeet Kaur  remained admitted in Indraprastha  Apollo Hospital  from 21.3.2012 to 28.3.2012 and she was diagnosed as a case of  Type-2 Diabetes Mellitus, Hypertension, Hypovitaminosis D, Urosepsis, Diabetic Ketosis and Uncontrolled hyperglyeaemia, but these ailments were not disclosed in the proposal form. Thus, the complainant concealed the material facts regarding ailments of his wife from the insurance company, which is a breach of terms and conditions of the Insurance policy. Therefore, the insurance company is not liable to pay any amount spent on the medical treatment of Smt. Saravjeet Kaur and the claim of the complainant was rightly repudiated.  In support of his contention, he has placed reliance on  LIC  of India Vs. Smt.Rukma 2012(2) CPC 243 and  Pushpadevi Babulal Punamiya (Jain) Vs. Life Insurance Corporation of   India 2012(3) CPC 201.

8.                To wriggle out of the aforesaid contention, the learned counsel for the complainant has vehemently argued that wife of the complainant was medically examined by the doctor of the Insurance company before issuing the insurance policy and she was found hale and hearty. She got  treatment only for fever prior to taking of the policy and that fact was  disclosed.  However, some  informations were not mentioned in the proposal form by Ops no.2 and 3, the agents of OP No.1. Thus, there was no concealment of any material fact by the complainant and his wife in the proposal form.  It has further been argued that even if the wife of the complainant was diagnosed for Type-2 Diabetes Mellitus, Hypertension, Hypovitaminosis D, Urosepsis, Diabetic Ketosis and Uncontrolled hyperglyeaemia and remained admitted for treatment of the same in Apollo Hospitals from 21.3.2012 to 28.3.2012,  then also it cannot be said that at the time of submitting the proposal form she was suffering from  such  ailments. The learned counsel for the complainant further laid emphasis on the contention that not disclosing about the aforesaid ailments of his wife regarding which she remained admitted in the Apollo Hospitals from 21.3.2012 to 28.3.2012, cannot be considered as concealment of any material fact,  because no amount for  treatment of these diseases was ever claimed by the complainant, rather his wife got treatment for ASD and surgery had to be performed for that purpose regarding which he had to pay the bill of Rs. 4,28,145/-   to the hospital.  Therefore, the claim of the complainant cannot be repudiated by the OPs on the ground that material facts were concealed by the complainant in the proposal form.  In this regard he sought sustenance from Branch Manager, Life Insurance Corporation of India Versus Harjinder Singh   2013 (1) CLT 449.

9.                From the evidence produced by the parties, it is established that Smt. Saravjeet Kaur remained admitted in Apollo hospitals from 21.3.2012 to 28.3.2012.    The proposal form for obtaining the insurance policy was submitted on 13.6.2012. As per the case of the complainant, the proposal form was filled up by Ops no.2 and 3, the agents of OP No.1.  No evidence has been led by the Ops to establish that  proposal form was filled up by the complainant or his wife.

10.               Smt. Saravjeet Kaur remained in the hospital of Dr.S.K.Gupta from 6.2.2013 to 8.2.2013.  The discharge summary Ex.C4 shows that she was diagnosed for Diabetes Mellitus with Hypertension and Hypothyroidism with Ostium Secundum Atrial Septel Defect (left to right Shunt) ASD device  closure was done in the hospital  and she was discharged.

11.                    As per certificate issued by Dr.S.K.Gupta,  ASD ( Atrial Septel Defect) is a  Congenital heart disease and has no relation with Diabetes Mellitus with Hypertension. Copy of the Literature  of ASD Ex.C3  produced by the complainant   indicates  that  ASD is a  form  of  Congenital heart defect that  enables blood flow between two compartments of the heart called  the left and right atria. Normally, the right and left Atria are separated by a septum called the interatrial septum. If this septum is defective or absent, then oxygen  rich blood can flow directly from the left side of the heart to mix with the  oxygen – poor  blood in the right side of the heart, or vice versa. However, an ASD may not produce noticeable signs or symptoms, especially if the defect is small. During development of the fetus, the interatrial septum develops to separate the left and right atria. However, a hole in the septum called the foramen ovale allows blood from the right atrum to enter the left atrium during fetal development. This opening allows blood to bypass the non functional fetal lungs while the fetus obtains its oxygen from the placenta.  A layer of tissue called the  septum primum acts as a valve over the foramen ovale during fetal development. After birth, the pressure in the right side of the heart drops as the lungs open and begin working causing the foramen ovale to close entirely.  In approximately 25% of adults, the foramen ovale does not entirely seal.  In these cases, any elevation of the pressure in the pulmonary circulatory system( due to pulmonary hypotension, temporarily while coughing etc.) can cause the formen ovale to remain open. This is shown as a patent foramen ovale (PFO) which is a type of atrial septal defect. 

12.                       Thus,  the certificate of Dr.S.K.Gupta and Literature  regarding ASD make it clear that  ASD has no relation with Diabetes Mellitus with Hypertension.  Smt. Saravjeet Kaur was initially admitted in Apollo hospitals on 21.3.2012 with the complaint of  Diabetes Mellitus   Ketoacisosis and she was discharged on 28.3.2012. There is no evidence worth the name on the file from which even an inference may be drawn that the complainant or his wife knew that his wife was suffering from ASD at the time of submitting the proposal form. She was diagnosed for ASD when she was again admitted in the hospital of Dr.S.K.Gupta on 6.2.2013 i.e. after a period of about eight months from the date of issuance of the insurance policy.  Under such circumstance, it cannot be said that complainant and his wife intentionally concealed  about the material fact that his wife was suffering from ASD on the date of submitting the proposal form.

 

13.               In Harjinder Singh’s case (Supra) factum of pregnancy was concealed but the death took place due to heart attack. Under those circumstances it was held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, that there was no nexus between the fact of pregnancy concealed and cause of death. It is not the concealment of every fact which empowers the insurance company to repudiate the claim. It is only a material fact, which is concealed and that too with fraudulent intention.  In the cited case revival form was filled by the agent, but the agent as well as attestator of signatures on declaration form were not examined by the  insurance company, therefore, it was held that material evidence was withheld.

14.               The proposition of law laid down in the afore discussed authority  cited on behalf of the complainant is applicable to the facts of the present case.  Even if,  it is accepted that the  complainant concealed the factum of  remaining his wife admitted in the Apollo Hospitals from 21.3.2012 to 28.3.2012 and she was diagnosed of Type-2 Diabetes Mellitus, Hypertension, Hypovitaminosis D, Urosepsis, Diabetic Ketosis and Uncontrolled hyperglyeaemia, then also it cannot be said that material fact was concealed, because there is no evidence  to prove that  complainant and his wife knew that his wife was suffering from ASD at the time of submitting the proposal form. Moreover, Diabetes Mellitus, Hypertension have no direct nexus with the disease of ASD.

15.               The law laid down in the authorities cited on behalf of the Ops cannot be doubted, but the same do not cut any ice in favour of the Ops under the facts and circumstances of the present case.  In Rukma’s case (Supra) insured died of epilepsy disease, which was not disclosed at the time of submitting proposal.  Under those, circumstances, it was held by the Hon’ble National Commission that concealment of factum of disease of epilepsy was breach of terms and conditions of the insurance policy.          In Pushpadevi Babulal Punamiya(Jain)’s case (Supra), the insured was suffering from serious heart disease and  other diseases of Hypertension for  last 10/12 years which was not disclosed at the time when the  policies were obtained.   Under those circumstances, it was held by the Hon’ble National Commission that repudiation of the claim by the insurance company on the ground  of  concealment of material facts was justified. 

16.               In view of the foregoing discussion, we arrive at the conclusion that complainant and his wife had no knowledge that his wife was suffering from ASD at the time of submitting proposal form, because they came to know about the said disease for the first time when diagnosed in the hospital of Dr.S.K.Gupta, when she was admitted there and surgery was conducted.  ASD has no direct relation with Diabetes Mellitus with Hypertension and other diseases regarding which wife of the complainant remained admitted in the Apollo Hospitals prior to submission of the proposal form. Therefore, under such circumstances, the complainant and his wife had not concealed any material fact which violates any term or condition of the insurance policy. Therefore, repudiation of the claim of the complainant by the Ops cannot be considered as legal and justified. Thus, there was deficiency in services on the part of the Ops.

17.               As a sequel to our foregoing discussion, we accept the present complaint and direct the OP no.1 to make the payment of Rs.4, 28,135/- to the complainant alongwith interest @ 9% from the date of filing of the present complaint i.e.  21.08.2013 till its actual realization. The complainant shall also be entitled for a sum of Rs.10,000/- for the mental agony and harassment suffered by him and litigation expenses. The Ops shall make the compliance of this order within a period of thirty days from the date of receipt. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:24.08.2015                                                                         

                                               

                                                                   (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

              

 

 (Anil Sharma)          (Smt.Shashi Sharma)        

     Member.            Member.

 

 

         

 

 

Present         Sh.Vishal Khundi Advocate for the complainant.

                   Sh.Vikash Chauhan Advocate for the Ops.

 

                   Arguments partly heard. For remaining arguments, the case is adjourned to 24.8.2015.

 

Announced
dated:19.08.2015                                                                         

                                                

                                                                   (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

               

 

 (Anil Sharma)          (Smt.Shashi Sharma)        

     Member.            Member.

 

 

Present         Sh.Vishal Khundi Advocate for the complainant.

                   Sh.Vikash Chauhan Advocate for the Ops.

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:24.08.2015                                                                         

                                               

                                                                   (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

              

 

 (Anil Sharma)          (Smt.Shashi Sharma)        

     Member.            Member.