Order dictated by:

Sh.S.S. Panesar, President.

1. Smt.Simarjit Kaur and others, have brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that Inderjit Singh was the employee of Shiromany Gurudwara Prabandak Committee and was the holder of mediclaim policy of Rs.4 lacs bearing No. 235302/48/12/1785 of Opposite Party No.1 for the period 1.1.2012 to 31.12.2013. Inderjit Singh died on 20.12.2012 leaving behind Simarjit Kaur widow, Sukhjinder Singh son and Bhupinder Singh son of Inderjit Singh being legal heirs of Inderjit Singh. Inderjit Singh was suffering from diabetic foot and septic shock, as such, he was remained admitted in Fortis Escorts hospital, Amritsar from 11.12.2012 to 17.12.2012. Insurance claim was lodged with the Opposite Parties . All the medical bills amounting to Rs.2,30,623/- were supplied to Opposite Parties and thereafter, Inderjit Singh was shifted to Shri Guru Ram Dass Charitable Hospital, Amritsar and he remained admitted there from 17.12.2012 to 20.12.2012. Opposite Parties were informed about this fact and all the medical bills amounting to Rs.47,623/- were again supplied to the Opposite Parties. Unfortunately, Inderjit Singh died on 20.12.2012, but the Opposite Parties repudiated the claim of the complainants. The complainants number of times requested the Opposite Parties to reburse the amount of claim as per bills, but the Opposite Parties did not pay any heed to the request of the complainants, as such due to the illegal act and adamant conduct of Opposite Parties , the complainants have suffered great harassment as well as mental agony and the above said act of the Opposite Parties amounts to deficiency in service and unfair trade practice, hence the necessity to file the present complaint has arisen to the complainants. Vide instant complaint, the complainants have sought the following reliefs:-

a) To pay the genuine claim of the complainants amounting to Rs.2,78,246/- (i.e. Rs.2,30,623/- of Fortis Escort Hospital and Rs.47,623/- of Shri Guru Ram Dass Charitable Hospital, Amritsar) alongwith interest.

b) To pay compensation amounting to Rs.50,000/- for great harassment and mental agony suffered by the complainants.

c) T o pay litigation expenses to the tune of Rs.20,000/-.

Hence, this complaint.

2. Upon notice, Opposite Party No.1 appeared and contested the complaint, whereas on behalf of Opposite Party No.2 none appeared, so Opposite Party No.2 was proceeded against exparte vide order dated 27.02.2015 of this Forum.

3. Opposite Party No.1 filed written statement taking preliminary objections therein inter alia that the insured had violated the basic terms and conditions of the policy and hence the present complaint is not maintainable. In the light of the terms and conditions of the policy in question, it was found that the claim was not payable as per Exclusion Clause 4.8 due to history of alcohol. Accordingly, the claim was considered as inadmissible by the competent authority of Opposite Party, therefore, the Opposite Party has rightly repudiated the claim on merits in accordance with law; that the complainants are estopped by their own act and conduct from filing the present complaint since the present case pertains to Lama Discharge (i.e. Left Against Medical Advice). In the present case, the deceased was admitted to Fortis Escorts Hospital, Amritsar on 11.12.2012 and was advised further treatment by the said hospital, but the complainants instead of continuing with the treatment, got the patient discharged improperly on 17.12.2012 against the advice of concerned doctors. Hence the complainants forfeited their right to get the cashless facility due to their own act/ omission. Moreover, the patient/ insured would probably have survived if he was given the proper treatment in accordance with the advice of the doctors at Fortis Escorts Hospital, Amritsar. Hence, its quite apparent that the insured died due to lack of proper and timely treatment, which was due to negligence and omission on the part of complainants themselves, as such, the complainants are not entitled to the relief claimed for; that the complainants have not approached this Forum with clean hands and have concealed the material facts. In number of judgements, it has been held that any person who approaches the court with unclean hands is not entitled to get any relief. It was found that the case of the insured was a case of alcoholism and the concerned doctor confirmed that the claim of the complainant pertains to the said category. The said doctor also recommended to Opposite Parties that as per the mediclaim policy does not cover treatment of problem arising out of alcoholism vide exclusion clause 4.8 of the policy, hence the claim is not admissible; that the parties to the complaint are strictly governed by the terms and conditions of the policy in question as it has been held by Hon’ble Supreme Court of India in various judgements. The contract of insurance is based on utmost faith and in this regard, it is submitted that by concealing material facts, it is apparent that the complainants have used fraudulent means for getting wrong claim. Hence, as per general clause of the contract of Insurance as well as terms and conditions of mediclaim policy, it has been clearly held that the insurance company will not be liable to pay any claim if found to be in any respect fraudulent or any one act is done on his behalf to take benefit under the policy, all the benefits under the said policy shall be forfeited; that the complaint filed by the complainants is otherwise bad for non-joinder of necessary parties and the cause of action. The Shiromany Gurudwara Prabandak Committee is also a necessary party to the present complaint; that the complainants have no locus standi to file the present complaint. The complainants are not the legal heirs of insured/ deceased Inderjit Singh; that as the claim already stands denied on the basis of pre-authorisation form of the hospital on the ground of history of alcohol, therefore, no consumer dispute survives, hence the complainants have no right to file the present complaint; even otherwise as the claim already stands repudiated on merits and has been found not payable in the light of aforesaid findings, therefore, there is no deficiency or delay on the part of Opposite Parties, as such the complaint is liable to be dismissed. On merits, it is stated that the complainants got the patient discharged improperly on 17.12.2012 against the advice of concerned doctors, hence the complainants forfeited their right to get the cashless facility due to their own act/ omission. There is no deficiency or delay on the part of Opposite Parties, therefore, the relief towards interest and dames, etc. is not payable. Basically there is no provision under the Consumer Protection Act nor there is any agreed clause in the contract of insurance to pay any such relief. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4. In his bid to prove the case, complainants tendered into evidence affidavit Ex.C1, copy of invoice consisting pages 1 to 17 Ex.C2, copy of receipt Ex.C3, copy of process sheet Ex.C4, copy of discharge certificate Ex.C5, medicine bills Ex.C6 to Ex.C19, copy of certificate issued by Shri Guru Ram Dass Charitable Hospital, Amritsar Ex.C20, copy of detail of medicines Ex.C21 to Ex.C23 and closed their evidence.

5. On the other hand, to rebut the evidence of the complainants, Opposite Party No.1 tendered into evidence the copy of no claim letter Ex.OP1/1, copy of discharge card Ex.Op1/2, copy of history sheet Ex.OP1/3, copy of policy Ex.Op1/4 and closed the evidence on behalf of Opposite Party No.1.

6. We have heard the ld.counsel for the complainant and have carefully gone through the evidence on record.

7. On the basis of evidence on record, ld.counsel for Opposite Party has vehemently contended that the insured was a case of habitual alcoholism , so as per clause 4.8 of the insurance policy the insurance claim of the insured has rightly been repudiated. The fact that the insured was a known case of alcoholism stands proved from the discharge slip issued by hospital. The terms and conditions of the policy in question are binding inter se insurer and the insured and the complainants can not wriggle out from the terms and conditions of the policy in question. The contention that the insured was not supplied with the complete insurance policy alongwith terms and conditions of the policy in question and therefore, he is not bound by the exclusion clause, is also not tenable because once the complainants chose to file the insurance claim on the basis of insurance policy in dispute, they are estopped from stating that the terms and conditions of the policy in question were not binding on them because no terms and conditions of the policy in question have been supplied to the insured.

8. On the basis of aforesaid contentions, ld.counsel for the Opposite Parties has vehemently contended that claim of the complainants has been repudiated in accordance with law. The insured had fraudulently withheld the material information regarding the fact that he was alcoholic, from the Opposite Parties at the time of getting the insurance cover, therefore, the claim has rightly been repudiated and the instant complaint has got no force. There is absolutely no deficiency in service on the part of the Opposite Parties and a prayer for dismissal of the complaint with costs has been made.

9. But however, from the appreciation of the facts and circumstances of the case, it becomes evident that Opposite Parties have wrongly repudiated the insurance claim of insured Inderjit Singh (now deceased). Opposite Party has failed to produce the proposal form alongwith original insurance policy despite the fact that an application was filed before this Forum directing the Opposite Parties to produce those documents, but however, both these documents were not produced by the Opposite Parties for the reasons best known to them. In such a situation, to contend the insured had concealed material facts from the Opposite Parties at the time of getting the insurance cover does not seem to be reasonable. Reliance in this connection can be had on National Insurance Company Limited Vs. Kanti Devi (MPSCDRC) 2001(2) CPJ 1 wherein it has been held that from the record produced before this Forum it is evident that the conditions or exceptions were not the part of the proposal form nor any such condition was brought to the notice of the deceased. Even the policy was not filed before the District Forum. Therefore, the Insurance Company can not absolve from its liability to pay the sum insured on the well settled principle that contract of insurance is of utmost good faith which must be observed by contracting parties.

10. The Opposite Parties have repudiated the claim of insured Inderjit Singh (now deceased) on the pretext that he was a known case of alcoholism and for that purpose, they have relied upon the remarks of the doctor appearing on the Bed Head Ticket, copy whereof is Ex.OP1/3 on record. But it is settled principle of law that remarks of the doctor on the Bed Head Ticket can not be made the basis for repudiating the claim because in the case in hand, neither the doctor has been examined nor any previous record pertaining to treatment of alcoholism regarding insured Inderjit Singh (now deceased) has been brought on record. In such a situation, the onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer. Reliance in this connection can be had on LIC Vs.Smt.G.M.Channabasemma, I (1991) ACC 411 (SC) wherein it has been held that burden of proving that the insured had made false representation and suppressed material facts is undoubtedly on the LIC of India. Furthermore, mere concealment of some facts will not amount to concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy could be vitiated otherwise not. Since in this case, even the proposal form has not been produced on record, therefore, ratio laid down in the judgement supra is applicable to the facts of the present case. We further find support in this respect from National Insurance Company Limited Vs. Swaraj Jain 2008(2) CPJ 59 of Hon’ble Rajasthan State Commission, Jaipur, wherein it has been laid down that it may be stated here that the past history recorded in the bed head ticket of hospital could not be treated as primary piece of evidence to prove any fact until and unless the doc or who had recorded that history had been produced and primary evidence would be of the doctor, who had recorded the information in he bed head ticket. For that, the law laid down by Hon’ble National Commission, in LIC of India and Ors. Vs. Dr.P.S.Aggarwal, 1(2005) CPJ (NC) may be referred to. In this case, the doctor who had recorded the previous history had not been produced and, therefore, no reliance could be placed on past history recorded in discharge ticket. Further reliance can be had on United India Insurance Company Vs. Rajesh Bassi and Anr. 2008(2) CPJ 485 Union Territory, Chandigarh, wherein it has been laid down that three conditions are necessary for the application of second part of Section 45(a) of the Insurance Act, 1938 namely, (a) the statement must be on a material matter or must suppress facts which were material to be disclosed; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that he had suppressed facts which were material to be disclosed. Mere inaccuracy or falsity in respect of some recitals in the proposal was not sufficient. The burden of proof was on the insurer to establish these circumstances and unless it is done by the insurer, the policy can not be avoided on the plea of mis-statement of facts.

10. From the aforesaid discussion, it transpires that mediclaim of the policy of insured Inderjit Singh (now deceased) has been wrongly repudiated by the Opposite Parties. The complainants being the legal heirs of insured Inderjit Singh (now deceased) are entitled to get insurance claim of insured Inderjit Singh (mow deceased) to the tune of Rs.2,78,246/- (i.e. Rs.2,30,623/- of Fortis Escort Hospital and Rs.47,623/- of Shri Guru Ram Dass Charitable Hospital, Amritsar) in equal shares. Opposite Parties are directed to comply with the order within a period of 30 days from the receipt of copy of this order, failing which the awarded amount shall carry interest @ 9% per annum from the date of filing of the complaint until full and final recovery. The costs of litigation are assessed at Rs.2000/-. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.