Chandigarh

DF-I

CC/743/2015

Balwinder Singh Jolly - Complainant(s)

Versus

SBI General Insurance Co. Ltd. - Opp.Party(s)

Gaurav Bhardwaj

29 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/743/2015
Date of Institution	:	03/11/2015
Date of Decision	:	29/08/2016

 

 

Balwinder Singh Jolly s/o Sh. Inderjeet Singh Jolly r/o H.No.1217, Phase – 10, Mohali.

…..Complainant

V E R S U S

1.     SBI General Insurance Company Limited, SCO 457-458, 1^st and 2^nd Floor, Sector 35-C, Chandigarh through its Manager.

2.     Paramount Health Services (TPA) Pvt. Limited, Plot No.A-442, Road No.28, MIDC Industrial Area Wagle Estate, Ram Nagar, Vithal Rukhmani Mandir, Thane (West), Maharashtra 400604 through its Managing Director.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                       

               

                                                                       

ARGUED BY	:	Sh. Rajesh Sood, Counsel for complainant
	:	Sh. Inderjit Singh, Counsel for OP-1
	:	OP-2 ex-parte

                       

PER DR. MANJIT SINGH, PRESIDENT

1.         Sh. Balwinder Singh Jolly, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against SBI General Insurance Company Limited and another, Opposite Parties (hereinafter called the OPs), for directing the OPs to pay the amount of Rs.5.00 lacs alongwith interest @ 18% p.a.; Rs.2.00 lacs as compensation for deficiency in service and unfair trade practice and Rs.33,000/- as litigation expenses.

                The facts, in brief, are that the complainant, who is an advocate by profession and practicing in Hon’ble Punjab and Haryana High Court, took a Group Health Insurance Policy from OP-1 in the year 2013 which was valid from 2.12.2013 to 1.12.2014 and the total sum insured was Rs.5.00 lakhs.  On 26.8.2014, the complainant suddenly fell from bed and became unconscious.  He was rushed and admitted in the Fortis Hospital and was diagnosed with intra cerebral hemorrhage and intra ventricular hemorrhage. His wife applied for cashless facility through the hospital, but, the same was denied on the ground that the complainant had been       suffering from pre-existing disease as he was having hypertension for the last 4-5 years. The complainant, remained admitted in the Fortis Hospital till 22.9.2014 where a major surgery was performed on him and he was discharged on 22.9.2014. Bill of Rs.10,00,631/- was raised by the Fortis Hospital which was paid by the family members of the complainant from their pocket. After repudiation of his claim, the complainant approached the OPs several times, but, to no avail.  Hence, this complaint claiming the reliefs mentioned above. 

2.         OP-1 resisted the complaint of the complainant, inter alia, taking the preliminary objections that he complaint being frivolous and vexatious is liable to be dismissed as the complainant has failed to make out a case of deficiency of service and unfair trade practice.  It is stated that as per the documents submitted by the complainant and the investigation made by the OPs, non-disclosure of pre-existing disease is evident and symptoms of pre-existing disease fall prior to policy inception. From the Discharge Summary of the complainant issued by the Fortis Hospital Mohali, it is clear that the complainant was having past history of hypertension from last 4-5 years. It is alleged that since the complainant has concealed the material fact about his previous ailment, as such, he has not come to the Forum with clean hands. It is also alleged that non-disclosure of material fact amounts to violation of the terms and conditions of the policy and by doing so the proposer had misled OP-1 to grant him insurance cover. The OP relied upon the judgments of the Hon’ble Supreme Court and Hon’ble National Commission wherein it has been held that in the contract of ‘Uberrimae Fidei insured under obligation to make true and full disclosure of statement within his knowledge and in case of non-disclosure the repudiation of the claim is justified.  Taking similar pleas on merits, OP-1 prayed for dismissal of the complaint.
3.         OP-2 did not appear despite due service, hence it was proceeded ex-parte on 23.12.2015.
4.         The parties led evidence in support of their contentions. 
5.         We have gone through the record, including the written arguments of the contesting parties, and heard the arguments addressed by the learned Counsel for the parties.
6.         The learned counsel for the complainant argued that in spite of having a valid policy, the complainant’s claim has been repudiated by the OPs without any just reason, particularly when he put his claim for cashless facility.  He argued that the complainant did not conceal material facts about his previous ailment from the OPs, as such, the claim could not be repudiated.  He argued that there is no material on record to support the stand of the OPs that the complainant concealed about his previous ailment. He further argued that the alleged disease of hypertension has no nexus with the ailment of the complainant and furthermore there is no evidence on record that the complainant was suffering from hypertension prior to taking the policy.  Hence, the complainant is entitled to the claim and there is deficiency on the part of the OPs.
7.         The learned counsel for OP-1, on the other hand, argued that the documents placed on record by the complainant themselves prove that he was suffering from hypertension for the last 4-5 years, as such, he concealed the material fact regarding his previous disease.  Hence, the OP was justified in repudiating the claim. Reliance has been placed on the judgment in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., 2009 (8) SCC 316 wherein at the time of taking the policy deceased was suffering from Diabetic Nephropathy/chronic renal failure.  This disease was not disclosed while taking the policy, which was within the knowledge of the deceased. After the death of the deceased after 7 months of taking the policy, wife claimed compensation which was repudiated by the insurance company.  It was held that fact suppressed was a material fact. There is no deficiency in service. Insurance company was justified in repudiating the claim.  It was also observed that material fact means any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether to accept the risk or not. Reliance has also been placed on the judgment Tata AIG Life Insurance Co. Ltd. Vs. Orissa State Co-operative Bank & Anr., 2012 (4) CPJ 310 (NC) wherein the deceased was having diabetic foot. Cause of death was shown due to chronic renal failure. Material facts were suppressed from the Insurance Company. Insured died within six or seven months of obtaining the insurance policy.  The repudiation of the claim was held to be justified.  Reliance has also been placed on Life Insurance Corporation of India & Anr. Vs. Mandava Geetha, 2012 (3) CPJ 644 (NC) wherein fraudulent information was given by the insured at the time of submitting the proposals and the repudiation of the claim was held to be justified.  Reliance has also been placed on the judgment Sadanand Bag Vs. Life Insurance Corporation of India & Anr., 2012 (3) CPJ 398 (NC) wherein the assured had deliberately withheld the information with regard to her suffering for a number of years from oesphageal perforation. She had certified that she was in good health in declaration furnished by her only ten months prior to her death. The said suppression was held to be suppression of material fact. Further reliance has also been placed on LIC of India Vs. Rukma, 2012 (2) CPJ 44 (NC), wherein the death of the insured was due to epilepsy which fact was not disclosed and even he had met with an accident and suffered head injury which was also not disclosed. In these circumstances, it was held that the insured had suppressed material facts pertaining to his previous head injury and health while filling the proposal form which amounts to breach of the terms and conditions of the contract of insurance. Similarly reliance has also been placed on some other judgments of the Hon’ble National Commission relied upon in the written statement wherein similar view was taken.
8.         It is admitted that the complainant took the group health insurance policy from OP-1 in the year 2013. The policy was valid from 2.12.2013 to 1.12.2014 and total sum assured was Rs.5.00 lakhs.  Annexure C-1 is the copy of that policy.  Annexure C-4 is the discharge summary of the complainant which proves that he was admitted to the hospital on 26.8.2014 and was discharged on 22.9.2014. He was diagnosed as “Intracerebellar hemorrhage with intraventricular hemorrage and subdural hemorrage uncontrolled hypertension”. As per the past history, there is mention of hypertension (4-5 years).  Annexure C-2 is the denial of cashless access to the complainant by the OPs and the operative part of the same reads as under :-

                “On primary scrutiny of your request we are unable to sanction cashless benefit for the said hospitalization for the following reason/s.

As per the instructions of the insurer SBI General Insurance Company Ltd., the claim is being denied on account of hypertension & its related complication are not payable for one since inception of policy hence claim denied.  Hypertension since 4-5 yrs which is pre-existing in nature hence claim denied.”

Thus it is proved that the claim of the complainant was denied on account of hypertension and its related complication and it is mentioned that there was hypertension since 4-5 years which is pre-existing in nature. We are of the view that the burden was on the OPs to prove that the complainant had concealed material fact of his pre-existing disease at the time of taking the policy.  There is no other document on record except the discharge summary of the complainant issued by the Fortis Hospital where he was admitted and remained under treatment. As per the discharge summary, the past history was hypertension since 4-5 years. The OPs have failed to produce on record any document to show that the complainant was suffering from hypertension from the last 4-5 years. The OPs have failed to get further information from the hospital as to whether the doctor who recorded the past history recorded the said information on the basis of the information given by the complainant or his relative or some medical prescriptions were consulted.  It was the duty of the OPs to prove who supplied this information to the hospital. In the present case, the complainant became unconscious and he was rushed to the hospital.  So, he himself was not in a position to disclose about his previous illness. The possibility of giving this information by some relative of the complainant on the basis of guess work cannot be ruled out.  It was the duty of the OPs to conduct a thorough enquiry about the previous treatment of hypertension obtained by the complainant. However, no such enquiry was conducted. Even the affidavit of the doctor who recorded the past history has not been produced on record.  So, merely on the basis of past history mentioned in the discharge summary, it cannot be said that the complainant was suffering from hypertension at the time of taking the policy and he has intentionally concealed the said material fact.

9.         In United India Insurance Co. Ltd. & Anr. Vs. S.K. Gandhi, 2015 (2) CLT 71 (NC), the insurance company had not placed on record either the discharge summary of the complainant or any medical document signed by the doctors who treated him in Kailash Hospital, to show that the complainant, when he was admitted to the said hospital, had himself stated that he was suffering from hypertension from last 8-9 years. In that case it was held that it is quite possible that the complainant, despite suffering from hypertension was not actually aware of the same and he cannot be accused of misstatement or concealment. Onus was upon the insurance company to prove that he had made a misrepresentation while obtaining the insurance policy and since the insurance company failed, it was held that it was liable to pay to the complainant to the extent of sum insured by it. In Satish Chander Madan Vs. M/s Bajaj Allianz General Insurance Co. Ltd., 2016 (1) CPJ 613 (NC) it was held that hypertension is a common ailment and it can be controlled by medication and it is not necessary that person suffering from hypertension would always suffer a heart attack.  It was further held that treatment for heart problem cannot be termed as claim in respect of pre-existing disease and the insurance company was held liable. In Oriental Insurance Co. Ltd. Vs. Naresh Sharma & Ors., 2015 (2) PLR 75, the Hon’ble Punjab and Haryana High Court held that the exclusion clause  has to be read to the benefit of patient in genuine circumstances. Where respondent was admitted in hospital suffering from headache, giddiness and hypertension, his claim cannot be rejected on the basis of exclusion clause. Reliance can also be placed on a Division Bench judgment of Hon’ble Punjab and Haryana High Court in CWP No.9738 of 2008-Life Insurance Corporation of India Vs. Permanent Lok Adalat & Anr. decided on 17.10.2008, wherein it was held that the duty to disclose is limited to the facts within the knowledge of the assured, a mistaken statement about a material fact made honestly, that is, with belief in its truth, will not affect the validity of the contract.  Reliance was also placed upon a decision of Division Bench of Hon’ble Madras High Court in All India General Insurance Co. Ltd. & Anr. Vs. S.P. Maheshwari, AIR 1960 Madras 484 wherein it was found that the answers to the questions are representations and a false representation will not operate to vitiate the contract or avoid the policy unless the fact is actually, material or clearly intended to be made material by the agreement between the parties.  The insurer can avoid the policy only by proving that the statement is false or fraudulent or that it was false and material to the risk.  It was further observed as under :-

“In the present case, there is no proof of the insured having been suffering from hypertension for a period of 10 years and assuming it to be so, hypertension is a disease which can escape attention of a person and is required to be diagnosed by experts.”

So, in the present case, the OPs have failed to produce cogent evidence to prove that prior to the date of taking the policy, the complainant was suffering from hypertension and was getting any treatment and that fact was in the knowledge of the complainant and he intentionally concealed the same. There is no dispute with regard to the law laid down in the judgments referred by learned counsel for the OPs, but, the same are not applicable to the facts of the present case because in the present case the OPs have failed to produce cogent evidence to the effect that the complainant had knowledge of hypertension and had intentionally concealed the treatment. It is pertinent to mention that except the discharge summary, there is no other evidence on record that the complainant was getting the treatment of hypertension at the time of taking the policy. Even otherwise, there is no proof on the record as to who disclosed to the doctor about the hypertension being suffered by the complainant for the last 4-5 years. 

10.         OPs have failed to prove that the complainant has suppressed material facts while obtaining the policy. As such, OP-1 was not justified in repudiating the claim of the complainant.  OP-2 is also jointly and severally liable with OP-1 to satisfy the claim of the complainant.  The complainant has placed on record Annexure C-3 which is a copy of the bill making the payment of Rs.10,00,631/- to the Fortis Hospital. The policy was to insure to the extent of Rs.5.00 lakhs.  As such, OPs 1 & 2 are jointly and severally liable to reimburse the amount of Rs.5.00 lakhs to the complainant. The complainant is also entitled to compensation because of denial of his rightful claim by the OPs.
11.         In view of the above discussion, the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under:-

(i)     To pay Rs.5.00 lakhs to the complainant being the sum assured with interest @ 9% per annum from the date of filing of this complaint till realization;

(ii)    To pay Rs.25,000/- as compensation for mental agony and harassment caused to the complainant;

(iii)   To pay Rs.11,000/- as costs of litigation to the complainant. 

12.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
29/08/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President