Delhi

New Delhi

CC/216/2017

Mahabir Parshad - Complainant(s)

Versus

M/S. The Manager/ Authorised Singnatory Star Health & Allied Insurance Company Ltd - Opp.Party(s)

18 Nov 2019

ORDER

 

 

 

 CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

         I.P.ESTATE, NEW DELHI-110002.

 

             Case No.C.C.216/2017                                          Dated:

              In the matter of:

Mahabir Parshad,

S/o late Sh. Ram Kumar,

R/o FC-115, 1^st Floor,

Tagore Garden,  New Delhi-27.

 

            ……..COMPLAINANT

VERSUS

              The Manager/authorized Signatory,

              Star Health & Allied  Insurance Co. Ltd.

              First  Floor, Himalaya Marg,

              23, Kasturba Gandhi Marg,

               New Delhi-110001.

 

Opposite Party.

                

                                                                                

ARUN KUMAR ARYA-PRESIDENT

ORDER

The complainant has filed the present complaint against the OP. The gist of the complaint is that the  complainant is insured in the subject policy and his daughter is proposer thereon  and she had paid a payment of Rs.69,798/- and Rs.71,127/- as premium of the said policy for two successive years.  The representative of OP, Sh. Kuldeep Singh contacted the complainant and obtained the entire relevant information in paper form along with medical prescriptions of doctors.  Thereafter, one Vishabh gupta, from OP Co. contacted the complainant for premium of the next year and after receiving the premium of Rs.71,127/-.  It is stated that while filling the proposal form, the complainant has declared to the OP that he is suffering from diabetes and kidney disease and has also handed over the medical record pertaining to the said disease to the agent of the OP namely, Sh. Kuldeep Singh, who after going through the medical record issued the policy in question and assured that the treatment of dialysis is covered under the policy.  On 8.7.2016, the complainant lodged the reimbursement claim for dialysis and artificial kidney with the OP, instead of making the reimbursement, OP asked for certain documents vide letter dt.27.7.2016 which was duly replied on 11.8.2016 along with required documents. Vide letter dt. 26.10.16, OP Co. cancelled the policy by giving the reasons of non-disclosure of material facts.  The complainant served two notices to the OP, the same was not replied by the OP.  It is further alleged that the OP Co. repudiated the claim of the complainant on gospel truth which was unjustified, hence this complaint.

2.         Complaint has been contested by OP.  In its written statement,   OP has not disputed that complainant had taken policy referred above. OP has stated that there is no deficiency in service on its part as alleged by the complainant.  It has been further stated that the insured has consulted after five days from the date of commencement of the policy i.e. 23.5.2015, within the shorts span of five days, it is not possible to develop the chronic kidney disease and that too at stage 5.  Thus, the insured was suffering with chronic disease prior to the inception of the policy. Moreover, as per the consultation report dt.8.4.2015 of Dr. Ashish Kalra, the insured was advised for hem dialysis twice a week, as per the consultation slip of Bhatia, dentopulse dt. 15.5.2015, the insured has an history of hypothyroidism since 7-8 years and CKD 2 years.  It is further submitted that at the time of inception of the policy i.e 23.5.2015 to 22.5.16 the insured has not disclosed the above mentioned medical history in the proposal form which amount to mis-representation/non-disclosure of the material facts and as such the claim of the complainant was rightly repudiated as per the clause 8 of the terms and conditions of the medical policy and same is not payable.  He further prayed for  dismissal of present complaint.           

3.         Both the parties have filed their evidence by way of affidavits.

4.         We have heard argument advance at the Bar and have perused the record.

5.        Ld. counsel for the OP has contended that as per the consultation slip of Bhatia, Dentopulse dt. 15.5.2015, the insured has a history of hypothyroidism since 7-8 years and CKD 2 years,  for which he was on medication prior to the solicitation of the policy. It was argued that the insured had given false replies in the application for insurance as such the policy was obtained by concealment and suppression of material facts. In support of its contention counsel for OP has drawn our attention towards the proposal form as well as the copies of consultation report dt.8.4.2015 of Dr. Ashish Kalra and consultation slip of Bhatia, dentopulse dt. 15.5.2015. It was further argued that the claim was rightly repudiated as the policy was obtained by concealment and suppression of material facts.

6.         On the other hand, ld. counsel for the complainant has contended that there is no concealment of material facts by the insured and  he had already submitted the medical history to the OP before inception of the policy. Further, prayed that the relief claims be granted.

7.        It is admitted position that the insured had taken  insurance policy, the claim has been repudiated by the OP on the ground that the insured was suffering from chronic kidney disease from last two years with diabetes and hypothyroidism since 7-8 years and having consulted doctor for the same on 8.4.2015 and 15.5.2015 i.e. before the inception of the policy. It was alleged by OP that  the insured had given false replies in the application for insurance as such the policy was obtained by concealment and suppression of material facts.

8.        To prove the aforesaid contention, OP has relied upon the queries answered by the insured in the proposal form. The relevant portion of the same is reproduced as under: ,

 

6	Have you being diagnosed or taking treatment for:
a.	Any heart disease	No
b.	Any problem related to eyes	No
c.	Any problem related to kidney
d	Any  non-healing wound/ulcer in the body	No
e.	Any problem infection( of foot/hand) in recent past	No

 

9.     We have gone through the proposal form as well as the copies of consultation report dt.8.4.2015 of Dr. Ashish Kalra and consultation slip of Bhatia, dentopulse dt. 15.5.2015 placed on record by the OP.  Perusal of the same shows that the insured was suffering from chronic kidney disease from last two years with diabetes and hypothyroidism since 7-8 years and having consulted doctor for the same on 8.4.2015 and 15.5.2015 i.e. before the inception of the policy for  which he was on medication  prior to the solicitation of the policy.  The insured in his proposal form in section 6( c)  against the  questionnaire for any problem related to kidney remained silent whereas the insured was suffering from chronic kidney disease from last two years with diabetes and hypothyroidism since 7-8 years and having consulted doctor for the same on 8.4.2015 and 15.5.2015 i.e. before the inception of the policy.   The material on record clearly shows that the insured had not given correct answers and had obtained the policy by suppressing material facts.

10.    The Non-Disclosure” of the true and correct facts pertaining to the medical history at the proposal stage by the insured  amounts to misleading the OP Insurance Co., resulting in the violation and infringement of the terms of contract between the parties, hence the repudiation is justified. 

11.    The contracts of insurance are contracts of uberrima fides and every material fact is required to be disclosed. In United India Page 11 of 13 Insurance Co. Ltd. v. M.K.J. Corpn., III (1996) CPJ 8 (SC), a two Judge Bench of Hon‟ble Supreme Court has observed: “It is a fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, „similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured‟.”

12.    In Satwant Kaur Sandhu v New India Assurance Company reported in IV (2009) CPJ 8 (SC), Hon‟ble Supreme Court has observed that in a contract of insurance, the expression “material fact” is to be understood in general terms, to mean as any fact which would influence the mind of a prudent Insurer, in deciding whether to accept the risk or not. If the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the Insurer to repudiate its liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance, which is based on the principle of utmost faith– uberrimae fidei. Good faith forbids either party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain, from his ignorance of that Page 12 of 13 fact and his believing the contrary. It has also been emphasized that it is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not.

13.    In PC Chacko and Anr. v. Chairman, Life Insurance Corporation of India & Ors. (2008) 1 SCC 321, the Hon‟ble Supreme Court has upheld the repudiation of the contract of insurance on the ground of non-disclosure and mis-statement in the proposal form to the various questions to which the answers were given by the insured.

14.    In the present case, the material on record discussed above clearly establishes that the insured had concealed material facts about his health as well as life style in the proposal form. The insured had failed to disclose that he was suffering from chronic kidney disease from last two years with diabetes and hypothyroidism since 7-8 years and having consulted doctor for the same on 8.4.2015 and 15.5.2015 i.e. before the inception of the policy.. Further, when the application for insurance was filled up by insured he failed to  answer to the question related to kidney disease. There is clear suppression of material facts in relation to diseases suffered by him prior to date of application for insurance. Material on record  proves that policy was obtained by concealment of material facts. In the facts and circumstances of the present case, we are of the  considered view that the OP was justified in repudiating the claim.

15.    In view of the above discussion, we find not merits in the present compliant, same is hereby dismissed.

A copy of this order each be sent to both the parties free of cost by post. This final order be sent to server (www.confonet.nic.in ). File be consigned to Record Room.

Announced in open Forum on 18/11/2019.

 

 

(ARUN KUMAR ARYA)

          PRESIDENT

 

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER