BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.298 of 2018
Date of Instt. 17.07.2018
Date of Decision: 22.07.2022
Balkar Chand S/o sh. Lachhman Dass R/o House No.1010, Urban Estate Phagwara, District Kapurthala.
..........Complainant
Versus
1. Religare Health Insurance Company Limited, SCO-5, 1st Floor, Near PUDA Complex, Ladowali Road, Jalandhar.
2. Religare Health Insurance Company Limited, 5th Floor, 19 Chawla House, Nehru Place, New Delhi-110019.
3. Religare Health Insurance Company Limited, Vipul Tech Square, Tower C, 3rd Floor, Golf Course Road, SEC -43, Gurugram- 122009 (Haryana)
4. Star Health and Allied Insurance Company Limited, Corporate Office:1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai-600 034.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. H. S. Kathar, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 to 3.
Sh. A. K. Arora, Adv. Counsel for OP No.4.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant took insurance policy from the OP, vide policy no.11508760 and he paid the lump sum premium Rs.23,278/-. The said policy commenced on 10.08.2017 and was valid upto 09.08.2018. The complainant took the said insurance policy for himself and for his family members namely Rashpal Kumari (wife), Tinaz Haimy (son) and Imraz Bhutta (son). Before the above said insurance policy, the complainant took a health insurance policy bearing No.P/700002/01/2017/028695 from the OP No.4, which policy commenced from 10.08.2016 valid upto 09.08.2017. Thereafter the complainant got ported the present insurance policy from the OP No.4 with the opposite party No.1 to 3 as per their repeated allurements. The complainant received several telephonic calls from mobile bearing No.09902511233 to his mobile phone bearing No.98722 19198, the OP No.1 to 3 also sent a chart/benefit as "Portability Benefits and Comparison Chart" with his previous policy. The above said policy has been cancelled by the OP No.1 to 2, vide letter dated 08.01.2018 with false allegation that in the proposal form, the complainant did not disclose that he had filed a claim with previous insurer as he got examined Angiography which was found normal. The above said fact disclosed by the complainant during conversation with the OP before buying the said policy as well as he mentioned the same in his proposal form, which was filled by him with his own hand. The copy of the proposal form sent by the OP No.1 to 3 is not that form, which was filled and signed by the complainant. The said signature on the proposal form is forged and fabricated one. When the OP No.1 to 3 sent a letter dated 08.01.2018 to the complainant, then he read and studied the proposal form thoroughly, then he came to know the above said fact of forgery of proposal form and his signature. The complainant moved an application before the OP on 19.01.2018 and contacted with them several times, but all in vain. The complainant has sent a legal notice on 04.04.2018 to OPs through his counsel and the OPs No.1 to 3 have sent the reply dated 14.05.2018 of the said legal notice in which they admitted that during tele-underwriting call made to complainant, then he disclosed all the facts of the OPs. In fact, the complainant had disclosed all the facts in his proposal form, it will be clear when the OPs will bring the original proposal form of the complainant on record before this Commission. Due to cancelation of the above said policy, the complainant as well as his insured family members suffered great mental tension, harassment and financial loss caused by the OPs No.1 to 3 and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs No.1 to 3 be directed to return the premium Rs.23,278/- as paid by the complainant alongwith interest @ 12% per annum from the day of payment till its realization. Further, OPs No.1 to 3 be directed to pay a compensation of Rs.10,00,000/- to complainant for causing mental tension and harassment and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 to 3 appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and no cause of action has arisen in favour of the complainant and against the OP. All the allegations and averments made against the OP in the complaint are false, frivolous and vexatious. The complainant has the least concern for the sanctity and dignity of the judicial process. The complainant in their endeavor to harass and humiliate the answering OP has not only concealed the material facts from this Commission, but has also misrepresented the material facts before this commission. The complainant being guilty of suppressioveri and suggestion falsi have no right of maintaining the present complaint and the present complaint is liable to be dismissed. The complainant has failed to produce even a single document so as to substantiate the allegations made against the OP. The complainant has failed to establish any deficiency on the part of the OP. The answering OP reserves its right to amend and file amended written statement on discovery of any new facts or documents pertaining to the present complaint. The above mentioned policy was cancelled under clause 7.1 and 7.13 for disclosure to information norm and cancellation/termination of policy terms and conditions, the complainant did not disclose about the claim filed with previous insurer for conducting complainant’s angiography at the time of proposal. The same was communicated to the complainant through vide letter dated 08.01.2018 and 28.02.2018. The fact that the complainant filed a claim for Angiography with the previous insurer and the same was not disclosed by the complainant at the time of taking the policy. The complainant had the opportunity to declare this at the time of filling up the Proposal Form but no such disclosure were made for the reason best known to the complainant. On merits, the factum with regard to taking insurance policy by the complainant is admitted and it is also admitted that the complainant sent a legal notice dated 04.04.2018 to the OP and OP gave the reply to the same, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.4 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant had availed family health Optima Policy vide policy No.P/700002/01/2017/028695 from OP No.4 for the period 10.08.2016 to 09.08.2017 covering complainant and his family for Rs.5,00,000/-. The complainant had lodged two claims with the answering OPs and the same were registered by the complainant and same were processed as per the terms and conditions of the policy of insurance. It is further averred that the OP had been unnecessarily made party to the present complaint and has nothing to do with the claim of the complainant, therefore the present complaint is liable to be dismissed with heavy costs against the answering OP. No cause of action has arisen in favour of the complainant to file the present complaint. The OPs has acted strictly on the basis of the terms and conditions contained in the policy. The complaint has been filed by the complaint with the malafide intention, and further to grab the public money. Hence the present complaint is liable to be dismissed. The present complaint is the misuse of the legal process. The present complaint was filed only with the motive to harass the OPs. The complainant has no locus-standi and cause of action to file the present complaint.
4. Rejoinder not filed by the complainant.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-13 and closed the evidence.
6. In order to rebut the evidence of the complainant, the counsel for the OPs No.1 to 3 tendered into evidence affidavit of Arvind Singh Naruka as Ex.OP1to3/A alongwith some documents Ex.OP1to3/1 and Ex.OP1to3/6 and closed the evidence. Counsel for the OP No.4 tendered into evidence affidavit Ex.OP4/A alongwith some documents Ex.OP4/1 to Ex.OP4/15 and closed the evidence.
7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
8. It is admitted that the complainant took the policy from the OP No.4 as per Ex.C-2 and that was valid from 10.08.2016 to 09.08.2017. Thereafter, he purchased the policy from OPs No.1 to 3, which commenced on 10.08.2017 and the same was valid upto 09.08.2018. The same has been proved as Ex.C-1. This was a family health insurance policy. The policy was ported from the OP No.4 with the OPs No.1 to 3. The complainant has challenged that the OPs No.1 and 2 have wrongly cancelled the policy on 08.01.2018 with the false allegation that the complainant had not disclosed to the OP that he had filed a claim with previous insurer that he got examined angiography which was found normal. He has alleged that the proposal form, on the basis of which the information was found to be incorrect, was never filled and signed by the complainant. He has denied his signatures on the proposal form also. He has proved the letter for cancellation of policy Ex.C-4. He has further alleged that he had informed and disclosed all the facts in his proposal form, which was filled by him and the same has not been produced by the OPs. Thus he has challenged the order cancelling the policy as wrong and illegal.
9. OP No.4 has admitted that the complainant took the policy from OP No.4 for the period from 10.08.2016 to 09.08.2017 and he lodged two claims as he himself was hospitalized on 30.06.2017 in ACE in heart and vascular institute towards the treatment unstable angina, positive stress test and he again lodged another claim as Tinaz Haimy was hospitalized on 05.06.2017 in Vedanta Multi Specialty Hospital and he further submitted claim for reimbursement of expenses towards the treatment of Pilonidal Sinus.
10. The OPs No.1 & 2 have alleged that he had not disclosed about the previous claim filed by him and hence the policy was cancelled. The OPs have proved the letter cancelling the policy Ex.OP-1/Ex.C4. The policy documents have been proved by the OPs No.1 to 3 as Ex.OP1to3/1 and the terms and conditions have been proved as Ex.OP1to3/1. The OPs have referred the clause 7.1, on the basis of which the policy of the complainant has been cancelled. The Clause 7.1 reads as under:-
“If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a Claim is fraudulently made or any fraudulent means or devices are used by the Policyholder or the Insured Person or any one acting on his/their behalf, the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited ab initio to the Company”
He has also referred the Clause 7.13 of the terms and conditions of the policy, which reads as under:-
“The Company may at any time, cancel this Policy on grounds as specified in Clause 7.1 by giving 15 days ' notice in writing by Registered Post Acknowledgment due recorded delivery to the Policyholder at his last known address and the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited and no refund of premium shall be effected by the Company .”
11. A letter in the shape of notice has been proved as Ex.OP1to3/2 in which the detail of the claim filed by the complainant for the treatment of Abnormal TMT findings with the previous Insurer Star Health and Allied Insurance Co. Ltd. was sought, has been given. The OP had served the complainant a notice of 15 days to furnish correct facts supported by valid documentary proof, if he disputes the same. On 28.02.2018 i.e. after the lapse of the period of 15 days of notice, which is Ex.OP1to3/2, the policy of the complainant was cancelled due to non-disclosure of material information and premium was stated to be forfeited as per the policy terms and conditions. The OPs have relied upon the proposal form Ex.OP1to3/4, which is allegedly duly signed by the complainant. The complainant has not disclosed about the previous claim lodged before his previous insurer. In this column, he has tick marked the word “N” and the declaration has been made by the complainant himself. This document bears the signatures of the complainant. The complainant has alleged that this proposal form was never filled by him and this is not the same form which was filled by him nor does it bear his signatures. The signatures on Ex.OP1to3/4 are forged signatures. To prove this fact that this is not the handwriting of the complainant in this form and the signatures are not of the complainant, the complainant has not examined any expert nor has produced on record any document to show and prove his specimen signatures nor has produced on record the copy of proposal form allegedly filled by him in his hand, which was duly signed by him as alleged. The complainant has not proved that this is a forged document. These are mere vague allegations. The OP No.4 has proved on record the claim lodged by him and has proved the documents produced on record by the complainant while lodging the claim, which has been proved as Ex.OP4/3 to Ex.OP4/15. As per the document Ex.OP4/15 the claim of the complainant of Tinaz Haimy was repudiated on 18.07.2017 and vide Ex.OP4/11, the OP No.4 has authorized and approved Rs.12,000/- to ACE Heart and Vascular Institute Hospital for his treatment as cashless. It has been held by Hon’ble Supreme Court, in a case titled as “Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd.”2009 (4) RCR (Civil) 692. The Hon’ble Supreme Court has referred “the term “Proposal Form” as defined under the Insurance Regulatory and Development Authority, 2002, which provides that proposal form means, form to be filled by the Proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake risk, and in event of acceptance of risk, to determine the rates, terms and conditions of a cover to be granted and further observed that in a contract of insurance, any facts which would influence the mind of prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering question in the proposal form. In case of non-disclosure of such fact, insurance company would be justified in repudiating the claim.” The Hon’ble Supreme Court has further observed that it is a fundamental principle of insurance law that utmost faith must be observed by the contracting parties. 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. The Hon’ble Supreme Court has referred MacGillivray on Insurance Law, who has summarized the assured’s duty to disclose as under:-
“The assured must disclose to the insurer all facts material “to an insurer’s appraisal of the risk which are known or deemed to be known by the assured but neither known nor deemed to be known by the insurer. Breach of this duty by the assured entities the insurer to avoid the contract of insurance so long as he can show that the non-disclosure induced the making of the contract on the relevant terms.
12. So, in view of the above discussion material facts, have been concealed by the complainant and he had given untrue statement and has not disclosed about the claims lodged by him with his previous insurer. In such circumstances, there is no deficiency in service on the part of the OPs and the OPs have rightly cancelled the policy as per the terms and conditions of the policy and thus, the complainant has failed to prove his case and the complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
22.07.2022 Member Member President
