Mr. Rajeev Agarwal S/o. Sri. Nathulal Agarwal, Raichur
...........Appellant(s)
Vs.
M/s. The New India Assurance Company Ltd., Raichur The Regional Manager, Medi Assist India Pvt., Ltd., Bangalore
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Rajeev Agarwal against New India Assurance Company Ltd., and another under section 12 of Consumer Protection Act for directing the opposites to pay an amount of Rs. 3,00,000/- with interest and cost. 2. The brief facts of the complainants case are that, he subscribed The policy Medi Claim covering his health and the health of his family members from opposite No-1 and paid premium to it, hereafter he opted the scheme Cash Less Medi Claim Policy as per the advise of opposite No-1. During the cover age period of insurance, he took treatment in Yashodhara Super Specialty Hospital, Sholapur for his leg pain, he was admitted as an in patient in the said hospital on 11-06-09 and thereafter he was discharged on 15-06-09. The said hospital diagnosed the illness of him as DVT with Moderate Pulmonary Embolism, he made expenditure for his treatment in Sholapur hospital as well as by consulting in Hyderebad. Thereafter he filed claim petition along with original bills and records for Rs. 83,468.17 ps. before opposite No-1, it denied his claim by stating that opposite No-2 Medi Assist India Private Ltd., is responsible for to make the payment as Insurance Company made tie up with opposite No-2. He also submitted his claim before opposite No-2, but his claim was repudiated on untenable grounds. Therefore, he issued legal notice and filed this complaint against both of them for the reliefs as prayed in it. 3. Opposite No-1 appeared in this case through its Advocate and filed written version by denying all the allegations made against it and contended that, Insurance Company tied up with opposite No-2 for to settle the claim, as such Insurance Company is not settled the claim of complainant. However the claim of complainant was repudiated by opposite No-2 on the ground of suppression of material facts as the complainant under went treatment from 11-06-09 for DVT with moderate pulmonary embolism. This fact was not diseased by him in proposal form, it is a breach of condition of the policy, the company shall not liable to make any payment under the policy in respect of such pre existing disease. Hence it is contended that there is no deficiency in its service on its part and thereby, it is requested to dismiss the complaint among other grounds. 4. Opposite No-2 appeared through its Advocate filed written version by contending that, it is only an agent of the opposite No-1, it has to take action in respect of settlement, thereafter it is liable to make such payment as recommended. In the present case, the complainant took treatment in Yashodhara Super Specialty hospital from 11-06-09 to 15-06-09 for Deep Vein Thrombosis, Moderate Pulmonary Embolism, Diabetes Mellitus, Hypertension, and Astama. The history of the treatment shows that, he was suffering from the said disease more than three years prior to date of policy. Hence this is violation to the terms and conditions of the policy and thereby it rejected the claim of complainant, there was no deficiency in its service and accordingly it prayed for to dismiss the complaint among other grounds. 5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he subscribed medi claim policy by covering himself and health of his family members from opposite No-1 Insurance Company and thereafter at the advise of opposite No-1 he opted and paid premium towards cashless medi claim policy, thereafter he fell ill and approached Yashodhara Super Specialty at Sholapur, he was admitted in the said hospital from 11-06-09 to 15-06-09 for DVT with Moderate Pulmonary Embolism and thereafter he took regular treatment at Sholapur hospital and at Hyderabad Hospital those hospital were not accepted cashless policy issued by opposite No-1 and after that, he approached opposite No-1, filed claim petition with bills and records but both of them have repudiated his claim on untenable grounds and thereby both opposites are found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 6. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-12 are marked. On the other hand the affidavit-evidence of Senior Manager of opposite No-1 Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked. Written argumens are filed. 8. Affidavit-evidence of Senior Manager of opposite No-2 was filed, he was noted as RW-2 and one document is marked as Ex.R-4. 9. On going through the pleadings of the parties and their respective evidences and documents it discloses that parties are not in dispute on the following points. 1) The complainant subscribed Janata Medi Claim Policy from opposite No-1 Insurance Company by paying premium with effect from 31-10-07 it valid upto 30-10-07 as opposite No-1 admitted it in Para- 4 & 5 of its written version. 2) It is undisputed fact by opposite No-1 Insurance Company and opposite No-2 Medi Assist Private Ltd., that, complainant admitted and took treatment on 11-06-09 as in patient in Yashodhara Super Specialty Hospital, Sholapur and discharged on 15-06-09 for DVT with Moderate Pulmonary Embolism as well as he took treatment for the said disease in Hyderabad. 3) It is further undisputed fact that, the claim of complainant was repudiated under clause No. 4.1 and 4.3 of the terms and conditions of the Insurance Policy by alleging that, complainant is suffering from Varicose Veins since three years prior to taking the policy and also he known a case of diabetic, hypertension, astama since prior to three years of the policy, but he not disclosed pre existing disease in his proposal form for taking the policy and thereby there is a suppression of material facts. 4) Proposal form of complainant was accepted and opposite No-1 Insurance Company issued policy after getting the medical examination of its own doctor. 10. In the light of the admitted facts as stated above. Now we have to appreciate the case of both parties. 11. The definite stand taken by the opposite No-1 Insurance Company with regard to material suppression. Now it is a settled law that the burden of proving suppression of material facts is on the insurer, complainant need not prove anything in that regard, if insurer proved the suppression of material facts, then the repudiation on that ground is acceptable. In this regard we have followed the principles of the Honble Supreme Court in decided case LIC of India V/s. Smt. Channaabasamma reported in 1996 III CPJ 8 (SC) and another ruling of the Honble National Commission in a case of National Insurance Company V/s. Bipul Kunda reported in 2005 CTJ 377 (CP) (NC). 12. In the light of the observations of the Honble Supreme Court as well as Honble National Commission in the said ruling we have to appreciate the case of opposite No-1. Some of the rulings referred below deals with regard to suppression of material facts and repudiation of the claim by Insurance Company. 1) AIR 1962 Supreme Court 814 Mithulal Naij V/s. LIC of India. 2) 2008 ACJ 456. 3) The rulings referred by the learned advocate for complainant. The learned advocate for opposites also relied on the ruling reported in 2010 CJ 309 (H.P.) and 2010 (1) CPR 93 Jaipur both rulings are of the Honble National Commission dealing with the cases of material suppression of pre existing disease, he also elaborately submitted in his argument regarding suppression of material facts. 13. We have perused the entire facts brought to our notice in reference to the section 45 of the Insurance Act. As regards to fraudulent suppression of material facts by policyholder and repudiation of the claim by the Insurance Company in such cases, it is for the insurance company to prove that the information given by the complainant in his proposal form fraudulently, fully knowing well that the statement given by him in his proposal form are false or otherwise he intentional suppressed the pre existing disease with an intention to get wrongful gain out of that statement. Now the main contention of opposite No-1 is that, complainant is suffering from DVT with Moderate Pulmonary Embolism as on 11-06-09. No doubt, it might be within three years prior to the date of taking the policy. In the said circumstances, now we have to see whether such disease is of such serious nature wherein the complainant tried to make mis use of the policy for to get monetary benefit in getting treatment. The learned advocate for opposite No-1 produced Medical Literature to know the type of nature of disease DVT. It is a medical term which is known as Deep Vein Thrombosis. The said disease is in respect of blood clot in the deep venous system at leg, it is not dangerous to life itself at first stage. The situation becomes life threatening only if a piece of blood clot breaks off, travels down stream through the heart into the pulmonary circulation system and lodged in the lung. This is curable disease after full treatment. 14. Now considering such type of nature and using of complicated medical terms in respect of the disease. We cannot believe that, complainant might be knowing fully well about the nature of the disease and it consequence prior to signing the proposal form we may get the knowledge of the disease only by going through the literature and case papers but an ordinary man like complainant might not be knowing consequences such disease Deep Vein Thrombosis. Insurance Company not noticed such disease at the time of issuance of policy. Further there are no documents and other circumstances to show that, complainant intentionally subscribed that policy only with intention to get wrongful gain out of that policy, as such we are of the view that, repudiation of the claim of complainant by opposite No-1 and opposite No-2 on this ground is not correct. Other grounds regarding suffering from Diabetic, Hypertension, Astama etc., is not consider for the reason that, Yashodhara Hospital, Sholapur gave certificate Ex.P-5 that complainant is not suffering from diseases. Hence we are of the view that, repudiating the claim of complainant on that ground amounts to deficiency in their services. 15. The learned advocate for opposite No-1 submitted other grounds regarding non following the procedures of the cashless policy, non production bills, opposite No-2 is responsible for to settle the claim, Insurance company has no concerned to it are grounds themselves sufficient to say that insurance company has committed deficiency in its service. 16. As regards to violation of clause 4.1 and 4.3 of terms and conditions of the policy as submitted we are of the view that, in view of the facts and circumstances stated above there cannot be any violation of such conditions such contentions might be the contentions for defences by opposite No-1 thereby we answered Point No.1 in affirmative. 17. As regards to the quantum of amount claimed by the complainant is concerned, he has produced Medical Literature Yashodhara Super Specialty Hospital, Sholapur and medical bills of Raichur, Hyderabad and other places which totally works out more than the amount covered under the policy, at the time of arguments the learned advocate for complainant gave up his claim excess to the policy amount and requested us to direct the complainant to make the full amount covered under the policy. Under the said circumstances, we are of the view that the complainant is entitled for to recover an amount of Rs. 75,000/- from opposite Nos- 1 & 2 jointly and severally which is an amount spent by him for his treatment at various hospitals. 18. A lumpsum amount of Rs. 3,000/- is awarded to the complainant towards deficiency in service by opposites another lumpsum amount of Rs. 3,000/- is awarded to the complainant towards cost of this litigation. Hence the complainant is totally entitled to recover 81,000/- from opposites Nos. 1 & 2 jointly and severally as opposite No-2 steps in the shoes of opposite No.1. 19. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 81,000/- from the date of this complaint till realization of the full amount. Accordingly we answered Point No- 2. POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 81,000/- from opposite Nos. 1 & 2 jointly and severally. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 81,000/- from the date of the complaint till realization of the full amount. Opposite Nos-1 & 2 is granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 05-08-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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