Haryana

StateCommission

A/806/2018

ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. - Complainant(s)

Versus

MAHESH CHAND - Opp.Party(s)

KARANDEEP SINGH CHEEMA

02 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.806 of 2018

                                                Date of Institution: 26.06.2018

                                                          Date of order: 02.05.2023

 

ICICI Prudential Life Insurance Company Limited, Vinod Silk Mills, Compound Chakravarthy, Ashok road, Ashok Nagar, Kandivali €, Mumbai 400101 through its Managing Director.

…..Appellant

Versus

Mahesh Chand S/o Sh.Kanwar Chand R/o 109, Ward No. 15, Model town, Tohana 125120, Distt. Fatehabad, Haryana.

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                  

Present:-    Mr.HitenderKansal, Advocate for theappellant.

                   Mr.Gaurav Grover, Advocate for the respondent.

 

First Appeal No.873 of 2019

Date of institution:03.10.2019

Date of order: 02.05.2023

 

Mahesh Chand S/o Sh.Kanwar Chand R/o 109, Ward No. 15, Model town, Tohana 125120, Distt. Fatehabad, Haryana.

…..Appellant

Versus

1. The ICICI Prudential Life Insurance  through its MD, Vinod Silk Mills, Compound Chakravarthy, Ashok road, Ashok Nagar, Kandivali E, Mumbai 400101 email:- lifelineiciciprulife.com.
2. Ms. Nisha Rani, Agent Code 1225064, C/o ICICI Prudential Life Insurance Fatehabad, contact No.9467605501.

…..Respondents

CORAM:    S.P. Sood, Judicial  Member

                  

Present:-    Mr.Gaurav Grover, Advocate forthe appellant.

                   Mr.HitenderKansal, Advocate for respondent No.2.

                   None for the respondent No.3.

CORAM:    S.P. Sood, Judicial  Member

                  

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

Vide this common order above mentioned two appeals bearing No.806 of 2018and F.A. No.873 of 2019will be disposed of as both the appeals have been preferred against the order dated 27.04.2018 passed by the District Consumer Disputes Redressal Forum, Fatehabad (in short ‘District Commission).

2.      Delay of 20 days in filing the appeal bearing No.806 of 2018 is condoned for the reasons stated in the application for condonation of delay.

3.      There is a delay of 483 days in filing the appeal bearing No.873 of 2019.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  483 days wherein,  it was alleged that impugned order was passed on 27.04.2018 and certified copy of the same was received by the appellant on May 2018. The appellant already facing several health issues which delayed of his engaging counsel to file this appeal. Thus, delay of 483 days in filing of the present appeal may please be be condoned.

4.      Reply to the application for condonation of delay has been filed alleging inter alia of appellant having concealed the material fact from this Commission. In fact an execution was also filed by the appellant before District commission Fatehabadwherein factum of cross appeal No.906 of 2018 also cropped up. So when this appellant was actively pursuing his execution so the question of his being unwell does not arise.  As such there was no much-less sufficient to not has filed it intime. The condonation of delay is not as a matter of right.

5.      Arguments Heard. File perused.

6.      Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    The appellant has been suffering from ill health so he could engage the present counsel to file appeal belatedly.Thus the delay be condoned in the interest of justice.

7.      Learned counsel for the respondent vehemently argued that  the appellant has concealed the material fact before this Commission. The execution filed by the appellant was still pending before District commission Fatehabad for 08.05.2023.  The reason to explain the delay by the appellant stood exposed very well. The condonation of delay was not as a matter of right. Thus the delay application be rejected.

8.      This argument is not available because the appellant has not mentioned the exact date of receiving the certified copy of the impugned order.  The complainant  has not placed on record any medical treatment chart.  As per the old Act, a period of 30 days has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days as per the old Act if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

9.                      The inordinate delay of 483 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

                In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

10.    Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 483 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.873 of 2019 is hereby dismissed. 

11.    The brief facts of the case are that on 07.09.2013, the complainant has purchased medical insurance policy namely ICICI Pru Health Saver Plan of opposite party No.1 for his family through OP No.2 and complainant paid Rs.32,000/- as premium.   Before issuance of policy, OPs conducted all type of medical test of the complainant on 10.10.2013 and found to be free from any ailment.During the subsistence of the policy, the complainant had to go for heart surgery in the month of January 2017 at Max Healthcare Centre, Saket, New Delhi for which he spent Rs.4,36,965/-. The medical claim of the complainant was repudiated by the Ops vide letter dated 06.01.2017 on the ground that Coronary artery Disease was diagnosed prior to the issuance of policy hence claim was denied. As per terms and conditions of the policy in question he could not claim any re-imbursement related to the said heart disease within the period of two years.  Faced with this situation, he got issued legal notice to the Ops, but all in vain.  Thus there being deficiency in service as well as unfair trade practice on the part of the Ops, hence the complaint.

12.    Notices were issued to the Ops and they filed reply submitting that they issued insurance policy bearing No.1800939 for an assured sum of Rs.5 lacs on 07.09.2013.  The complainant gave answers to the question in the proposal form as under:-

Q.No.	Question	Answer
10 D	Health Details: (iii) In the last 5 years, have you for any illness or injury been admitted to hospital for 2 days or more or received medical treatment for continuous 7 days or more or undergone any surgical procedures or diagnostic tests (including mammogram and PAP smear) or medical examinations with abnormal results or have you been advised to undergo any test or investigation or surgery?	No.
10 E	Have you ever suffered or are suffering from any of the following: (x) Chest pain, Palpitation, Theumatic Fever, Heart Murmur, Heart Attack, Shortness of breath or any other heart related disorder.	No.

The complainant approached to OP No.1 with Pre authorization form requesting cashless request on 05.01.2017 for hospitalization to be done on 05.01.2017.  It was noticed in the pre authorization form that life assured had past ailment of CAD (Coronary Artery Disease) with DVD (double Vessel Disease) and CAG (Coronary Artery Disease) with DVD and CAG (2011 LAD ( Left Anterior Descending) 75%, RCA  (Right Coronary Artery) 95%. Therefore the pre authorization request was rejected as per clause NBo.8.5 of the terms and conditions of the policy. The complainant was suffering from coronary artery disease since 2011 which was intentionally suppressed by the complainant in the proposal form submitted by him while obtaining the policy.  The claim of the complainant was rightly repudiated. Thus there was no deficiency in service as well as unfair trade practice on the part of the Ops.

13.    OP No.2 filed separate written statement submitting that the complainant deliberately concealed the material facts about previous ailment and treatment of heart from the OP with aoblique to get the medical insurance knowingly that he had to go for surgery in future.  The complainant was having ample opportunity to withdraw from the policy within 15 days of its issuing date after going through the terms and conditions as envisaged. Thus there was no deficiency in service  as well as unfair trade practices on the part of the OP No.2 and prayed for dismissal of the complaint.

14.    After hearing both the parties, the learned District Commission, Fatehabadhas allowed the complaint vide order dated 27.04.2018, which is as under:-

“Therefore the OP No.1 is directed to make a payment of Rs.1,68,400/- (Rs.One lac sixty eight thousand & Four hundred only) alongwith an interest @ 6% per annum to the complainant from the date of filing of present complaint till its realization, within a period of one month. The OP No.1 is also directed to make a payment of Rs.10,000/- (Rs. Ten Thousand only) to the complainant on account of harassment and cost of litigation.”

15     Feeling aggrieved therefrom, O.P Nos. 1and 2 as well as complainanthave preferred these appeals.

16.    Arguments heard. With their kind assistance entire record of both of these appealsas well as that of the District Commission including whatever evidence has been led on behalf of  both the parties has been properly perused and examined.

17.      It is admitted that On 07.09.2013, complainant obtained medical insurance policy namely ICICI Pru Health Saver Plan of OP No.1 company for himself as well as for his wife Smt.ChanderKanta through OP No.2 and premium of Rs.32,000/- per annum was paid. During the subsistence of the policy, the complainant suffered heart problem and he spent Rs.4,36,965/- on his treatment. The plea of the opposite parties were that the claim was repudiated on the ground that the complainant was already having  coronary artery disease since 2011 before issuance of the insurance policy which did not disclose therefore, the complainant was not entitled for the claim amount as prayed for.

18.    Perusal of the order shows that the total bill of Max Health Care was Rs.4,28,400/- and out of which an amount of Rs.2,50,000/- has been paid by the National Insurance company and an amount of Rs.1,68,400/- was to be paid by the complainant. Since the Ops had conducted all types of medical tests of the complainant including
ECG in Goel Nursing and Maternity Hospital, Hisar on 10.10.2013 and he was not diagnosed with any such heart problem by the doctors of the OPs. But as is evident the opposite parties have not placed on record any treatment chart of the complainant with regard to the said coronary disease of the year of 2011 and hence the complainant was entitled for the full claim amount.The complainant has not violated any terms and conditions of the insurance policy. The case laws relied upon by counsel for the appellant in appeal No.806 of 2018 titled  ICICI Prudential Life Insurance Company Limited Vs. Mahesh Chand2003(3) CPJ 15is not applicable in the case in hand because the facts and circumstances of the case isdifferent that from the present case.

19.    It is a matter of common experience, insurance companies often repudiate claims on grounds of non-disclosure of material information by the consumer. However they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell.

The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclousure on the part of the insurer.

          Here are two cases where the Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers.

          In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop located in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policy holder made a claim, the insurer repudiated it on the basis of the exclusion clause!

          While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said.

          Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”.

          Said the court: “Before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included thereunder”.

20.    The repudiation of the claim was bad in the eyes of law and was not justified. The OPs have illegally repudiated the claim of the complainant. The learned District Commission has rightly allowed the claim of the complainant. The learned District Commission has committed no illegality while passing the order dated 27.04.2018.  In the net analysis both of these appealsare devoid of merits and stands dismissed.

21.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal bearing No.806 of 2018 be refunded to the complainant-respondent-Mahesh Chandagainst proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

22.              Applications pending, if any stand disposed of in terms of the aforesaid order.

23.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

24.              File be consigned to record room after due compliance.

25.    The original judgement be attached with appeal No.806 of 2018 and certified copy be attached with appeal No.873 of 2019.

 

2ndMay, 2023                                                                      S. P. Sood                                                                                                                            Judicial Member    

S.K.(Pvt. Secy)