CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.143/2017
Mr. Ram Parkash Aggarwal,
S/O late Sh. A.N. Aggarwal,
R/O C-8/8457, Vasant Kunj,
New Delhi-110070.…..COMPLAINANT
Vs.
M/s Reliance General Insurance Company Limited
Plot No. D-160/2, 2nd & 3rd Floor,
Okhla Industrial Area, Phase-I,
New Delhi-110020 ..….RESPONDENT
Date of Institution-13/04/2017.
Date of Order-30/03/2022
O R D E R
MONIKA SRIVASTAVA– President
The present complaint has been filed by the subscriber of a Travel Care Insurance Policy for Senior citizens issued by sole OP-M/s Reliance General Insurance Company Limited claiming deficiency in service by the OP on account of its failure to provide cash less service/reimburse medical expenses incurred by the complainant in getting treated at Royal Jubilee Hospital, Vancouver, Canada. The Claim before this Commission is for payment of Rs. 6,50,000/- being equivalent to Canadian $ 12,193.64 towards hospital bills and Rs. 5,00,000/- towards mental pain and agony. The complaint was filed on 10.04.2017.
It is stated in the complaint that complainant opted to get travel care insurance from OP on the recommendation of its travel agent M/s Maple Tours and Travels. It is further stated that the medical insurance was taken by the above mentioned travel agent who neither obtained the signature of the complainant nor asked for details of any pre-existing health and medical conditions. The policy subscribed by the complainant was valid between the period 09.09.2016 and 26.01.2017. It is stated that the complainant on 17.09.2016 suffered a sudden pain in his leg associated with fever and chills to the point that he was unable to stand and had to be rushed to Royal Jubilee Hospital where he remained hospitalized between 17.09.2016 till 20.09.2016. It is further stated that OP vide its letter dated 24.12.2016 in an illegal and perverse manner rejected the claim of the complainant. It is noteworthy that above mentioned letter was issued by M/s Europ Assistance India Private Limited. The reason for rejection is reproduced herein below:
“On evaluation, your current presentation was attributed to Cellulitis of left lower extremity in this setting of Chronic Venous Stasis as well as diabetes mellitus”
“The issued policy shows that; you have not disclosed your past pertinent medical history of Diabetes Mellitus, Chronic Venous Stasis, Coronary Artery disease, Hypertension, Hyperlipidemia, Arthritis, and on continuing treatment for the same at the policy inception.
As the ailment was a result, consequence, complication of your pre-existing disease (Diabetes Mellitus- Chronic Venous Stasis) which was not disclosed in the policy along with the co-morbid conditions, we regret to inform you that the claim is not admissible”
It is further stated that complainant had no occasion to disclose any pre-existing medical elements as neither any proposal form was handed over to the complainant nor any signatures wherever obtained or any such form. The complainant has produced a medical certificate dated 20/02/2017 from his family general physician which records that illness of the complainant at Vancouver was not related/due to old diabetic and was probably caused due to some local infection.
The complainant has produced a preliminary and final report of the treating hospital wherein “Left lower leg Cellulitis” was recorded as most responsible diagnosis and other diagnosis was recorded as follows:
1.Hypertension
2. Arthritis
3. Non-insulin dependent Diabetic Mellitus
4. Hyperlipidaemia,
5. Coronary Artery disease with CABG in the past as well as Coronary Stenting in 2010
6. Anaemia, Normocytic, Low B12 and iron on Labs in hospital and
7. Elevated creatinine, Query chronic versus acute, likely at least an element of acute discharge creatinine.
The medical report noted that item no. 1-5 of the above list also as past medical history. It further noted the following:
“ A 78 year old male visiting with his wife from India in Canada currently visiting their son. They do have medical insurance protection. He has a history of coronary artery disease and diabetes but reassured me that has been medically well prior to this visit now presenting with fever and chills in lethargic looking which could make one concern of an early bacteraemia the obvious source of infection is the lower leg is with suspected Cellulitis and started on Ancef”
OP filed its reply stating there is no deficiency on the part of the OP. It is stated that the claim was repudiated because of non-disclosure of pre-existing disease. It is further stated that during investigation the treating doctors found that the element for which the claim has been filed was the result of complication of his pre-existing disease i.e Diabetes Mellitus, Chronic Venous statis which was not disclosed in the policy. It is further stated against the entry of pre-existing disease complainant has remarked “NO”. It is further stated that the policy was taken on-line therefore there was no requirement of handing over of physical forms. OP has also challenged the jurisdiction of this Commission primarily because of complicated facts which require leading of evidence and cross-examination. It was thus prayed that the matter be referred to Civil Court and should not be adjudicated under summary procedure prescribed under the Consumer Protection Act.
The complainant has filed a rejoinder wherein contents of complaints have been reiterated and extracts of judgements passed by High Court, SCDRC and NCDRC were reproduced. Both the parties have lead evidence by way of affidavit and written submissions.
The Hon’ble Supreme Court in the matter of Manmohan Nanda vs United India Assurance Company Limited Civil appeal no. 8386/2015 has laid down the following tests in regard to disclosure of pre-existing disease:
On a consideration of the aforesaid judgments, the following principles would emerge:
(i) There is a duty or obligation of disclosure by the insured regarding any material fact at the time of making the proposal. What constitutes a material fact would depend upon the nature of the insurance policy to be taken, the risk to be covered, as well as the queries that are raised in the proposal form.
(ii) What may be a material fact in a case would also depend upon the health and medical condition of the proposer.
(iii) If specific queries are made in a proposal form then it is expected that specific answers are given by the insured who is bound by the duty to disclose all material facts.
(iv) If any query or column in a proposal form is left blank then the insurance company must ask the insured to fill it up. If in spite of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or nondisclosure of a material fact, and seek to repudiate the claim.
(v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors. If, on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre-existing illness, and on such satisfaction, it has issued the policy, it cannot thereafter, contend that there was a possible pre-existing illness or sickness which has led to the claim being made by the insured and for that reason repudiate the claim.
(vi) The insurer must be able to assess the likely risks that may arise from the status of health and existing disease, if any, disclosed by the insured in the proposal form before issuing the insurance policy. Once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition which was disclosed by the insured in the proposal form, which condition has led to a particular risk in respect of which the claim has been made by the insured.
(vii) In other words, a prudent insurer has to gauge the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so. Such an exercise is dependent on the queries made in the proposal form and the answer to the said queries given by the proposer.
Hon’ble SCDRC in its judgments in the matter of Life Insurance Corporation of India vs Sudha Jain II(2007) CPJ 452 (Del.) and Medicare Service Club vs Giri Raj Jung Rana Appeal no. 1284/2006 dealt with fact of concealment of facts like Diabetes etc. for the purpose of insurance claims wherein following was held:
“(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthrit is and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalised or operated upon form the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a 'diseased person' as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalised and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG, etc., the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.”
Undoubtedly, the complainant had in response to a pertinent question about pre-existing disease gave an incorrect reply which he was duty bound to disclose. The complainant was suffering from diabetes, however, it shall not entitle the OP to repudiate the claim for twin reasons, first being in terms of precedents in the matter of Life Insurance Corporation of India vs Sudha Jain II(2007)C PJ452(Del.) and Medicare Service Club vs Giri Raj Jung Rana Appeal no. 1284/2006 wherein it was held that diabetes is a life style disease which is normal wear and tear of modern day life and cannot be used for repudiation of insurance claim on grounds of concealment of pre-existing disease. Secondly, no evidence was led by the OP to show that the pre-existing condition of diabetes was the cause of illness of the complainant. On the contrary the doctor’s note clearly indicate that complainant was diagnosed as suffering from early bacteraemia which was suspected Cellulitis. It does not categorically say that diabetes was the cause of bacteraemia, rather it states that complainant has history of diabetes which was said to be under control.
OP has challenged the jurisdiction of this Commission to adjudicate upon this issue because the matter requires evidence to be led, cross examination to be conducted and cannot be decided summarily, which requires the matter to be tried by the civil court. The Hon’ble Supreme Court in the matter of J J Merchant vs Shrinath Chaturvedi AIR 2002 SC 2931 has held the following
“It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side is not necessary. It should be kept in mind that legislature has provided alternative efficacious, simple. Inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act providers sufficient safeguards”.
The Supreme Court reiterated the above position in CCI Chambers Co-op Housing Society Limited vs Development Credit Bank Limited AIR 2004 SC 184 by holding the following:
“The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the for a under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court, Each District Forum is headed by person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act”.
The Hon’ble NCDRC in the matter of Narinder Kumar vs Sanjiv Kumar Revision Petition no. 299 of 2000 has held Consumer Protection Act is a benevolent legislation and its provisions are to be given liberal consideration and NCDRC cannot put restriction on the jurisdiction of the Forum established under the Act. In view of the above-mentioned judgments, this Commission holds that it has jurisdiction to adjudicate upon complicated facts of law and their jurisdiction is not barred for the reasons stated by OP. In any case, in the present case, factually there is no dispute between the parties which would require trial. Hence this plea of the OP is rejected.
In view of the above, this Commission holds OP deficient in performance of its duty and allows the complaint and directs the OP to pay to the complainant a sum of Rs. 6,50,000/- along with interest @ 6% per annum towards the cost of medical expenses incurred by the complainant from the date of institution of complaint till its realisation. This Commission also grants compensation of Rs. 3,00,000/- in favour of the complainant towards mental harassment etc. It is directed that the above stated amount be remitted to complainant within three months of receipt of this order failing which OP shall be liable to pay interest @ 9 % per annum from the date of this order till realization.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
