^{UNIONTERRITORY,CHANDIGARH}

^{The Oriental Insurance Company Ltd., Divisional Office-2, SCO No.48-49, Sector 17-A, ChandigarhChandigarh.}

^{….…Appellant/Opposite Party}

^Versus

^{Ruhi Sharma daughter of Late Sh.Par Brahm Sharma (P.B.Sharma) resident of House No.2653, Sector 40-C, Chandigarh.}

^{…..Respondent/Complainant}

^BEFORE:

^{Argued by: Ms.Swatantar Kapoor, Adv. for the appellant.}

^{PER PADMA PANDEY, MEMBER}

^“12.             

^{i)            To reimburse the claim of the father of the complainant and the other two heirs of Sh.P.B.Sharma to the tune of Rs.2 lacs alongwith interest @9% p.a. from the date of the claim till realization.}        

^{ii)           To pay compensation for mental harassment and agony to the complainant and the remaining two legal heirs of Sh.P.B.Sharma to the tune of Rs.15,000/-.}

^{iii)          To pay the cost of litigation of Rs.7500/- to the complainant.}

^{13.         This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S.No.(i) & (ii) of the para aforesaid shall carry penal interest @12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.}

^{14.         The total amount paid by the OP shall be shared by the complainant and her sister Ms.Shivranjani and brother Master Sidhant Sharma in equal shares. However, the share of Master Sidhant Sharma, minor shall be deposited in a fixed deposit account through complainant in his name till he attains majority.}

^{15.         The certified copies of this order be sent to the parties free of charge. The file be consigned”.}

^{2.                    In brief, the facts of the case, as alleged by the complainant, are that her father namely Sh.Par Brahm Sharma (in short P.B.Sharma) now deceased took a Happy Family Floater Policy No.231200/48/2011/561 dated 11.2.2011, Annexure C-1, from the Opposite Party commencing from 12.2.2011 to 11.2.2012, for a sum insured of Rs.2 lacs, under the silver plan by paying a premium of Rs.7787/- through cheque.  It was stated that, at the time of filling up the proposal form, the father of the complainant gave all the information, regarding his health, which was true and correct to the best of his knowledge. The father of the complainant was fully well and was not suffering from any disease. It was further stated that on 28.11.2011 father of the complainant got problem of chest pain and was admitted in PGIMER,Chandigarh, but during the course of treatment, he expired on 6.12.2011. At the time of admission, acute chest pain was reported to the doctor on duty and, ultimately, the father of the complainant died due to pneumonias refractory cardiogenic shock. Copy of the death certificate is Annexure C-2. It was further stated that after a few days, Mrs.Minakshi, mother of the complainant also expired on 27.12.2011, leaving behind the complainants (complaint was filed by only one person i.e. Ms.Ruhi Sharma only). Copy of her death certificate is Annexure C-3. It was further stated that an amount of Rs.3,23,980/- was incurred, on the treatment of the father of the complainant i.e. Sh.P.B.Sharma, as per the details of expenses, Annexure C-4. It was further stated that the complainant submitted all the documents vide claim, Annexure C-5, to the Opposite Party. It was further stated that thereafter, Chandigarh for the settlement of claim. However, the Opposite Party rejected the claim of the complainant vide letter dated 30.4.2012 (Annexure C-9) with the observation that the father of the complainant suffered from Refractive Cardiagenic Shock, Aspired Pneumonia, Post PTCA, CAD, hypertension and} 

^{3.                    In its written reply, the Opposite Party admitted that the father of the complainant Sh.P.B.Sharma took the Insurance Policy for the first time, which was valid from 12.2.2011 to 11.2.2012. It was stated that the Opposite Party rightly repudiated the claim of the complainant as per the repudiation letter dated 30.4.2012, in which, it was specifically mentioned that the deceased had died due to Refractive Cardiogenic Shock, Aspirated Pneumonia, Post PTCA, CAD, hypertension and diabetic mellitus. It was further}

^{4.                    The Parties led evidence, in support of their case.}

^{5.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above.} 

^{6.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.}

^{7.                    We have heard the Counsel for the appellant/Opposite Party, and have gone through the evidence and record of the case, carefully.} 

^{8.                    The Counsel for the appellant/Opposite Party submitted that the Policy, in question, was issued subject to its terms and conditions. She further submitted thatthe Opposite Party rightly repudiated the claim, vide repudiation letter dated 30.4.2012, in which, it was specifically mentioned that the deceased had died due to Refractive Cardiogenic Shock, Aspirated Pneumonia, Post PTCA, CAD, hypertension and diabetic mellitus. She further submitted that he had been suffering from hypertension and diabetic mellitus for the last two years and both these being confirmed risk factors of coronary artery disease, were not covered under the terms and conditions of the Happy Family Floater Policy as per condition Nos.4.1 and 4.3. She further submitted that the father of the complainant deliberately concealed the fact relating to the pre-existing diseases from the Opposite Party in order to avail of the false claim.  She further submitted that, as such, the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. She further submitted that the District Forum was wrong, in holding to the contrary. She further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside.}

^{9.                    After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant/Opposite Party, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter.}The question, that falls for consideration, is, as to whether, the insured namely Sh.Par Brahm Sharma had been suffering from any preexisting diseases, such as hypertension and diabetes mellitus II, and failed to disclose the same, at the time of submitting the proposal form. No doubt, repudiation of the claim of the complainant was made, by the Opposite Party, vide letter dated 30.04.2012, on the ground, thatthe deceased had died due to Refractive Cardiogenic Shock, Aspirated Pneumonia, Post PTCA, CAD, hypertension, diabetic mellitus as he had been suffering from hypertension and diabetic mellitus for the last two years and both these being confirmed risk factors of coronary artery disease and were not covered under the terms and conditions of the Happy Family Floater Policy as per conditions No.4.1 and 4.3.It may be stated here, that it was for the Opposite Party, to prove, by way of producing cogent and convincing documentary evidence, that the insured/complainant, suffered from any preexisting disease, at the time of inception of the Policy, but he failed to disclose the same.  The complainant was only required to disclose those diseases, from which he was suffering, and which were in his knowledge, at the time of inception of the Policy, and not the other diseases, which were not in his knowledge. Human machinery is such, as nobody can predict, as to from which disease, he/she has been suffering until and unless, some symptoms appear, and the person concerned undergoes the requisite tests, and diagnosis are made by the doctor(s), with regard to the same.  In  P.Vankat Naidu Vs. Life Insurance Corporation of Indiaand Anr. 2011(4) CLT Supreme Court 494= IV (2011) CPJ 6 (SC), it was held that it was for the Opposite Parties, who had come out with the case, that the insured did not disclose the correct facts, relating to his/her illness, to produce cogent evidence, to prove the allegation. In support of her submission, the Counsel for the Opposite Party placed reliance on the Medical Certificate of Cause of Death, Annexure P-3 to establish that the hypertension and type-II diabetes mellitus were stated to be the significant conditions, contributing to the death of the insured. , it was held that onus to prove the pre-existing disease of the insured at the time of taking the policy lay on the insurer. Further in the absence of verification of discharge summary by the doctor, who treated/issued the same, no reliance can be placed on it. In the instant case, the Opposite Party failed to produce any such medical record, which could show that the deceased Sh.P.B.Sharma was suffering from pre-existing diseases of hypertension and type-II diabetes mellitus at the time of taking the Policy. Even no evidence was produced, on record, that the insured had the knowledge of symptoms of hypertension and type-II diabetes mellitus diseases prior to the inception of policy. The Certificate of Hospital Treatment, Annexure C-8 of PGIMER,Chandigarh

^{10.                  The District Forum was also right in observing that the immediate and antecedent causes of death of the insured were Refractive Cardiogenic Shock, Aspirated Pneumonia, Post PTCA, CAD and that the deceased did not die on account of hypertension or diabetes, which were only significant conditions contributing to death but not related to the disease or conditions causing it. The District Forum was right, in holding that the repudiation of claim was illegal and arbitrary. The District Forum was also right, in holding that the Opposite Party was, thus, deficient, in rendering service to the complainant.}

^{11.                  In view of the foregoing discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.}

^{12.                  For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage,  with  no  order as to costs. The order of the District Forum is upheld.}

^{13.                  Certified Copies of this order be sent to the parties, free of charge.}

^{14.                  The file be consigned to Record Room, after completion.}

Pronounced.

11.04.2014  [JUSTICE SHAM SUNDER [RETD.]

                                                                                                                       [DEV RAJ]

Sd/-

^{[PADMA PANDEY]}

^MEMBER

cmg