Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Narinder Kumar Uppal has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he got a mediclaim policy bearing No. 30140328201200 from Opposite Party for the period from 15.10.2012 to 14.10.2013 for himself as well as for his family members including his wife Rajni Uppal and daughter Anjana Uppal for a sum of Rs.3 lacs and paid premium thereof to the tune of Rs.9189/- to the Opposite Party. The Opposite Party also issued cashless hospitalization card in this respect, hence the complainant having hired the services of the Opposite Party for valuable consideration and being beneficiary of the said policy, falls within the definition of consumer as defined under Consumer Protection Act. During the tenure of the said insurance cover i.e. in June/ July, 2013, Smt.Rajni Uppal wife of the complainant suffered from jaundice and she had to go for the treatment of the same in Dayanand Medical College & Hospital, Ludhiana and she was hospitalised in the said hospital on 8.8.2013 and was discharged on 23.8.2013. Thereafter, she was admitted in Parvati Devi Hospital on 15.9.2013 and discharged on 19.9.2013 and again she was admitted in said hospital on 27.9.2013 to 29.9.2013 and ultimately she expired on 29.9.2013. The complainant spent an amount of Rs.1,70,000/- on the treatment of his wife which were incurred on medicines, various tests, x-rays etc. Thereafter, the claim was lodged with Opposite Party for the said amount followed by personal visits and reminders, but the Opposite Party dilly dallied the matter for one pretext or the other and ultimately, the Opposite Party has repudiated the claim of the complainant on false and frivolous grounds and without any cogent reason vide letters dated 8.12.2013 and 11.1.2014 alleging that the deceased Rajni Uppal was having problem of DM and HTN since the last 5 years whereas the wife of the complainant was never any such problem nor she died due to alleged problem. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Party be directed to pay the claim amount of Rs.1,70,000/- to the complainant as hospitalization and other charges alongwith interest @ 18% per annum.
b) Compensation to the tune of Rs.50,000/- on account of mental pain, agony, harassment and inconvenience suffered by the complainant may also be granted in favour of the complainant and against the Opposite Party.
c) Costs of the proceedings amounting to Rs.10,000/- and any other relief to which the complainant is found entitled under law, equity and justice may also be granted in his favour.
Hence, this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complainant has concealed the material facts from this Forum and has not come to this Forum with clean hands, therefore, he is not entitled to any claim. In this case, as per the documents provided by the complainant and after going through the documents, it was found that in the discharge summary, it is clearly mentioned under Past Medical History that the wife of the complainant namely Rajni Uppal was having problem of DM 5 years and HTN 1 year, as such it reveals that the wife of the complainant was suffering from pre existing disease, but this fact has not been mentioned in the proposal form, duly filed and signed by the complainant at the time of getting the policy from the Opposite Party, therefore, the complainant intentionally concealed the material facts from the answering Opposite Party, therefore, he is not entitled to any claim as alleged in this complaint. Had the complainant disclosed the disease at the time of procuring the policy, it could not have been issued by the Opposite Party; that in this case as alleged by the complainant, Rajni Uppal was admitted in the hospital on 8.8.2013 and intimation was given to the Opposite Party on 11.9.2013, therefore, there is delay in intimating the claim to Opposite Party, as such the complainant has violated the clause 5h3ii of the terms and conditions of the policy in question, therefore, he is not entitled for any claim; that the complainant has breached the terms and conditions of the policy in question, therefore, he is not entitled to any claim; that the complainant is estopped by his own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action; that the complainant has no locus standi to file the present complaint. On merits, the facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with costs was made.
3. In his bid to prove the case Sh.U.K.Gaind,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-15 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Sumeet Bajaj, Manager Legal Ex.R-1 alongwith documents Ex.R-2 to Ex.R-15 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.
6. On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that it is an admitted fact that the complainant, his wife Rajni Uppal and daughter Anjana Uppal purchased mediclaim Insurance policy from the opposite party valid w.e.f. 15.10.2012 to 14.10.2013 for a sum of Rs. 3,00,000/- , copy of the Insurance policy accounts for Ex.C-2. Opposite party also issued a cashless hospitalization card in favour of the complainant as well as for his wife and daughter. During the tenure of the said Insurance cover in June/July, 2013 , wife of the complainant Rajni Uppal suffered from jaundice and she had to go for treatment of the same in Dayanand Medical College & Hospital, Ludhiana and she remained hospitalized w.e.f. 8.8.2013 to 23.8.2013. Thereafter Rajni Uppal was again admitted in Parvati Devi Hospital on 15.9.2013 and was discharged on 19.9.2013. Rajni Uppal was again admitted in Parvati Devi Hospital on 27.9.2013 uptil 29.9.2013 and ultimately she expired in the hospital on 29.9.2013 due to damage of liver which was caused on account of jaundice. The complainant spent an amount of Rs. 1,70,000/- on the treatment of his wife , which was incurred on medicines, various tests, x-rays etc. Thereafter claim was lodged with the opposite party for reimbursement of the amount. But , however, opposite party dilly dallied the matter on one pretext or the other. Ultimately ,opposite party repudiated the genuine claim of the complainant on false and flimsy grounds and without any cogent reason vide letter dated 11.1.2014 Ex.C-3/C-4 and Ex.R-10, R-11 and Ex.R-12 on 8.10.2013 alleging that deceased Rajni Uppal was having problem of DM 5 years and HTN 1 year, whereas wife of the complainant was never suffering from any such problem nor she got the treatment of alleged diseases ever. The opposite party has not produced any evidence showing treatment to the insured before the date of proposal. Besides the representation and reminders, personal visits were also made to the opposite party by the complainant and his family members but till date claim of the complainant has not been accepted. It is,therefore, requested that claim for the reimbursement of the amount of Rs. 1,70,000/- as mediclaim may be allowed alongwith interest @ 18% p.a. The complainant has also prayed for grant of compensation to the tune of Rs. 50000/- as well as litigation expenses of Rs. 10000/-.
7. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that pre-authorization form Ex.R-5 was filled and submitted for cashless policy by Narinder Kumar Uppal which was duly filled and signed by him. The complainant himself stated that the past history of the deceased was Diabetes Mellitus duration period 5 years and Hypertension since 1 year and alongwith pre-authorization form, the complainant also submitted discharge summary. In support of the admission of the complainant Narinder Kumar Uppal, doctor specifically stated that the deceased was suffering from hypertension for 1 year and DM for 5 years. The medical record is Ex.R-15 which includes discharge summary. In this case at the time of taking policy Ex.R-2, the proposal form Ex.R-4 was duly filled in , in which the answer to the question regarding previous history was given as ‘NO’. As per terms and conditions Ex.R-3, there is a clause 5g(3)(ii) which says that “you or any insured person has not disclosed any true,complete and all correct facts in relation to policy and/or” as well as other grounds vide which the complainant was bound to disclose the previous history of ailment. But in the present case the insured concealed the pre-existing disease, therefore, the claim was repudiated vide letters Ex.R-10 to Ex.R-12. Opposite party has also proved on record certificate Ex.R-13 , claim form Ex.R-14. Since there is admission on the part of the complainant in the request for pre-authorization form Ex.R-5 regarding pre-existing disease which is supported by the medical record of the deceased as per law laid down in LIC Vs. Kuldeep Singh delivered by the Hon’ble National Commission that non disclosure of material fact is a valid ground for rejection of claim and has stated that the term material fact has not been defined in the Insurance Act, it is understood to mean any fact which would influence the judgement of a prudent insurer in fixing the premium for determining whether he would like to accept risk. Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be “Material”. The Hon’ble National Consumer Disputes Redressal Commission in the matter of Jaspreet Singh Vs. ICICI Home Finance Co.Ltd., Jalandhar and ICICI Home Finance Co.Ltd., Mumbai, RP No. 113 of 2013 has held that the person approaching the court and seeking relief must come to the court/Forum with clean hands. However, the complainant has suppressed material facts not only from the opposite party but also from this Hon’ble Fourm and as such, the complaint is liable to be dismissed on this score alone. In Satwant Kaur Sandhu Vs. New India Assurance Company Limited 2009(8) SCC 316, the Hon’ble Supreme Court of India has held that when information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer.
It has further been held that a mediclaim policy is a non-life insurance policy meant to assure the policy-holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not.
8. From the aforesaid discussion, it transpires that the complainant has with-held the information regarding the health of Rajni Uppal in the proposal form filled by him at the time of getting the Insurance policy in dispute. However, the fact came to the light when at the time of getting the Insurance claim, the complainant filled performa Ex.R-5 wherein information regarding suffering of Diabetes Mellitus for 5 years and Hypertension since 1 year was specifically mentioned by the complainant being suffered by Smt.Rajni Uppal. Copy of the medical history is also placed on record which is Ex.R-9.
9. In the light of the admission made by the complainant in document Ex.R-5, the amount claimed to the tune of Rs. 1,70,000/- for reimbursement of medical expenses on behalf of Rajni Uppal , is not available to the complainant and the same has rightly been repudiated by the opposite party. Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 14.9.2016
/R/
