STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 07.05.2018
Date of final hearing: 24.08.2023
Date of pronouncement: 16.10.2023
First Appeal No.589 of 2018
IN THE MATTER OF:-
Jagdish Kumar S/o Sh. Hari Singh, R/o 567, Old Housing Board Colony, Rohtak. ....Appellant
Versus
National Insurance Company Ltd., through its Divisional Manager, Outer Quilla Road, Rohtak. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Rahul Makkar, counsel for appellant.
Sh. Sandeep Suri, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 40 days in filing of this appeal stand condoned for reasons as stated in application for condonation of delay.
2. Challenge in this appeal No.589 of 2018 is invited by unsuccessful complainant-Jagdish Kumar, to the legality of order dated 23.02.2018/26.02.2018 passed by District Consumer Disputes Redressal Forum-Rohtak (In short “District Consumer Commission”) in complaint No.400 of 2016 vide which his complaint was dismissed. Note: In operative part of this order (last page); date when order is announced in open court has been mentioned as 26.02.2018, whereas, at first page of order, above title of parties, it is mentioned that complaint is decided on 23.02.2018.
3. Complainant has alleged that: his daughter-Kanika booked Family Medi-claim Policy No. 251100/46/13/8500001689/167692 for Rs.5.00 lacs for period from 09.06.2014 to 08.06.2015 from OP which covered insured and her parents. On 20.07.2014, complainant suffered chest pain; got treatment from Holy Heart Hospital-Rohtak. On being medically examined and on related tests conducted by hospital; it was found that three arteries of heart were blocked and complainant was advised for bypass surgery. He was brought at Apollo Hospital-Delhi. At the time of admission in Apollo Hospital-Delhi; his family members told to hospital authority regarding Medi-claim Policy; after that hospital authority filled form and submitted documents to OP for cashless treatment, but on 30.07.2014, OP-insurer repudiated claim for cashless treatment on the ground that: it seems a pre-existing disease at that moment and it advised complainant to get treatment and thereafter submit documents for reimbursement. On 28.07.2016, open heart surgery was done and he (complainant) remained in hospital from 24.07.2014 to 07.08.2014. Rs.3,70,000/- were spent upon treatment, medicines, special diet, transportation, attendant (including hospital bills). After discharge from hospital; he remained on bed for about 5-6 months; he lost his income, as he could not do any activity without help of attendant. After discharge from hospital; he submitted claim form with documents and bills of his treatment to OP/insurer for reimbursement, but it refused to make reimbursement of Rs.3,70,000/- on the ground that: it was a pre-existing disease. It is pleaded that doctor of Holy Hospital and of Apollo Hospital-Delhi have nowhere mentioned in entire record that he (complainant) was having any symptoms of pre- disease. He was a healthy person; completely fit earlier to this disease which was suddenly came in short span of time. He approached OP/insurer, personally and through mails for reimbursement of expenses borne by him, but OP did not give satisfactory reply and flatly refused for reimbursement of expenses. On these pleas; complaint has been filed with prayer to direct OP/insurer to pay him Rs.3,70,000/- with interest; to pay him Rs.1,00,000/- as compensation for mental harassment and agony and Rs.21,000/- for litigation expenses.
4. OP-insurer in its defence has submitted that: complainant has no cause of action. Complaint is not maintainable. He has suppressed true and material facts and has not come to forum with clean hands as complaint has been filed for pre-existing ailment/disease, so he (complainant) is not entitled to any claim amount. It is pleaded that date of inception of policy was 09.06.2014 and as per clinical history on discharge card; complainant had similar complaint with breathlessness and chest heaviness, three months ago, prior to inception of policy. He had also undergone Cardic Stress Test which was positive for Ischemia. As per terms and of conditions; pre-existing disease and its related complications are not covered during first claim three years from date of inception of policy. It is pleaded that claim is inadmissible under clause 4.1, therefore, cashless facility was denied on ground that: possibility of pre-existing ailment cannot be ruled out. Thus, as per insurer’s case; claim has rightly been repudiated and there was no deficiency in its services.
5. Parties to this lis led their respective evidence, oral as well documentary.
6. On critically analyzing on pleas on foundation of evidence as led; learned District Consumer Commission-Rohtak vide order dated 23.02.2018/26.02.2018 has dismissed the complaint, thereby giving rise to filing of this appeal by complainant.
7. Learned counsel for appellant has contended that impugned order is unjustified and illegal on all fronts. Evidence has not been evaluated in proper legal perspective. Complainant did not suffer any pre-existing ailment, prior to his hospitalization at Apollo Hospital-Delhi from 24.07.2014 to 07.08.2014 due to ‘open heart surgery’ performed on him on 28.07.2014. It is urged that complainant had suddenly felt symptoms of chest pain on 20.07.2014 which eventually led him to face open heart surgery. On these submissions; learned counsel for appellant has urged for acceptance of appeal.
8. Refuting the contentions, learned counsel for OP/insurer has urged that impugned order passed by learned District Consumer Commission-Rohtak is legally justified on given facts and evidence, warranting no interference in this appeal.
9. This Commission has subjectively analyzed rival submissions, so put before it.
10. Poser put across to this Commission is: whether insurer/respondent has rightly repudiated complainant’s claim of reimbursement of Rs.3,70,000/-, allegedly spent by him in relation to his treatment in Indraprastha Apollo Hospital or not, citing reason of pre-existing heart related disease of complainant?
11. Undisputedly, Medi-Claim Insurance Policy (Ex.C-1/Ex.R-9) had currency from 09.06.2014 to 08.06.2015. It was for sum assured of Rs.5.00 lacs. Complainant, his wife and daughter are insured. Discharge summary Ex.C-10 reflects following history:-
“Mr. Jagdish Kumar (complainant), 61-years male was asymptomatic till about 3 months back when he developed heaviness in chest associated with breathlessness which is gradually increasing in intensity. He was evaluated locally and a TMT was done which was positive and was advised CAG. He underwent coronary angiography in Rohtak, Holy Heart Care Centre on 20.07.14 which revealed Triple Vessel Disease and was advised to undergo CABG. He is now admitted to IAH for further evaluation and management.”
12. Discharge summary Ex.C-10 also recites that complainant had been diagnosed with Coronary Artery Disease, Tripple Vessel Disease, LVEF 55%. Open heart surgery (Coronary Artery Bypass Graft Surgery) was performed on him on 28.07.2014 in Indraprastha Apollo Hospital-Delhi and he was discharged in stable condition on 07.08.2014. Above facts significantly indicate that: heaviness in chest with breathlessness had an increasing tendency, prior to inception of policy. It was not a sudden occurrence on 20.07.2014, as alleged. Obviously, complainant had landed in Indraprastha Apollo Hospital-Delhi with medical history, intrinsically linked with heart ailment and he eventually had to encounter open heart surgery. His medical history linked with heart had been in existence, prior to inception of Medi-claim Policy which began to operate from 09.06.2014.
13. Hon’ble Apex Court in case titled as “Satwant Kaur Sandu Vs. New India Assurance Company Ltd.”, Civil Appeal No. 2776 of 2002 decided on 10.07.2009 has held as under in Para 12 of its judgment:-
- There is no dispute that Section 45 of the Insurance Act, 1938 (for short “the Act”), which places restrictions on the right of the insurer to call in question a life insurance policy on the ground of mis-statement after a particular period, has no application on facts at hand, inasmuch as the said provision applies only in a case of life insurance policy. The present case relates to a mediclaim policy, which is entirely different from a life insurance policy. 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. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. (See: Joel Vs. Law Union & Crown Ins. Co.1 )
Hon’ble Apex Court in this judgment has also observed that: the expression “material fact” is to be understood in general terms to mean as any fact which would influence the judgment 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 their 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-uberrima fides. 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 fact and his believing the contrary.”
14. Having given anxious consideration to the material on record of this appeal, in the light of above cited pronouncement; this Commission of firm opinion that: pre-existing heart relating ailment which was revealed on 20.07.2014 as Triple Vessel Disease was very much in knowledge of complainant, as on the day (09.06.2014) of inception of Medi-claim insurance policy. There was clear suppression of material fact in regard to the health of insured. At any rate, act and conduct, visible as such, on the part of insured were based accentuated by non-disclosure of material facts, falling foul of condition No. 4.1 of policy Ex.R-10.
15. At legal pedestal, it would justify that insured/complainant has been rightly non-suited. While observing so, this Commission gain strength from the observation laid down by Hon’ble Apex in cases titled as “National Insurance Co. Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd.” (Civil Appeal No.4979 of 2019) decided on 17.05.2023, and “National Insurance Company Limited vs. Ishar Das Madan Lal” (2007) 4SCC 105 wherein it has been held that: “It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of insured.”
In the case in hand, exclusion of OP/insurer from Medi-claim policy is ex-facie established from evidence brought on record.
16. Thus, the answer to this poser is that: insurance company (OP) has successfully proved the exclusion clause No. 4.1 and rightly repudiated the claim vide document Ex.C-9/Ex.R-1 dated 30.07.2014 addressed to Indraprasth Apollo Hospital-Delhi. Repudiation through communications Ex.R-3 to Ex.R-6 have also been conveyed to Kanika (Principal Insured) concerning her father Jagdish Kumar on 14.10.2014, 22.10.2014, 25.10.2014 & 28.10.2014. It is more than clear from the evidence that information about the past medical history of complainant, cogently linked with his heart ailment, should have been supplied to insurer. Had, it been supplied, then insurer/OP might not have issued Medi-claim insurance policy covering complainant therein. However, in wisdom of insured; material information regarding past medical history linking his heart ailment has been withheld. Hence, on that pedestal he (complainant) has been rightly non-suited by learned District Consumer Commission-Rohtak through its order dated 23.02.2018/26.02.2018 (impugned herein). This order dated 23.02.2018/26.02.2018 does not carry any manifest error, legal or factual. It is accordingly affirmed and maintained. Present appeal, being devoid of merits, is hereby dismissed.
17. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
18. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room.
Date of pronouncement: 16th October, 2023.
Naresh Katyal
Judicial Member
Addl. Bench-II
