In the District Consumer Disputes Redressal Forum Murshidabad,

Berhampore, Murshidabad

Case No. CC/102/2012

Date of filing: 03 /09 /2012                                                 Date of Final Order: 31/07/2015

1). Gobinda Roy.

S/O- Late Sanjoy Roy.

2). Hena Roy.

W/O- Gobinda Roy.

Both of 64/2, Vivekananda Pally.

P.O.+ P.S.- Berhampore, Dist- Murshidabad ………………………………….Complainant                                  

                       Vs

 1).Senior Branch Manager,

Life Insurance Corporation of India,

 K.N.Road., Berhampore Branch,

P.O.& P.S.- Berhampore, Dist.- Murshidabad. PIN-742101

2). Medicare TPA Service (I) Pvt. Ltd.

6, Bishop Road. Kol.-20

3)Sr. Divisional Manager, LICI.

Kolkata Suburburn Divisional Office

I/DD-5, Sector-I, Salt Lake City, Kolkata-64…………………………….   Opposite Parties

Mr.Subhash Saha., Ld. Advocate…………………………………………..for the Complainants.

Mr.Saugata Biswas, Ld. Advocate………………………………………….for the Opposite Party No.1.

                      Present:   Hon’ble President, Anupam Bhattacharyya.           

                                        Hon’ble Member,  Samaresh Kumar Mitra.

FINAL ORDER

Samaresh Kumar Mitra, Member.

                The simple version of this complainants as enumerated in the complaint is that that Complainant No.-1 is a policy holder being policy No.-426859677 named as health Plus under OP No.3 that covers the complainant No.1,2 and their daughter namely Swati Roy having installments of Rs.12000/- per w.e.f. 12.03.2008. After being satisfied all the formalities OP No.1 issued policy certificate. That on 25.11.2010 complainant No.2  Hena Roy unfortunately attacked with cerebral stroke and admitted at Berhampore Sadar Hospital but due to her serious health condition she was further admitted at Apollo Glenegles Hospital (Kolkata) Nursing Home on 25.11.2010. where Complainant No.2 was admitted for 8 days in ICU and 22 days in general bed, in total she was admitted for 30 days from 25.11.2010 to 24.12.2010. After discharge complainant No.1 contacted to OPs for getting his proportional medical expenses. But OPs rejected his bonafide claim basing upon pre-existing illness of Hypertension. Due to such refusal of bonafide claim, the complainants are suffering from great financial hardship. As the OPs did not entertain the bonafide claim of the complainants which amounts to deficiency in service for which the complainant took the recourse of this Forum for redressal.

               Getting notice from this Forum the OP No.1 appeared by its advocate and filed written version on 3^rd May,2013 denying the allegation as leveled by the complainant and also stated that this Forum has no jurisdiction as complainant is a policy holder of OP NO.3 i.e. K.S.D.O. having its office at Salt Lake City, Kol.-64. The answering OP filed evidence on affidavit dated 22.7.2014 in which he averred that the policy holder of the policy being No.426859677 under Senior Divisional Manager LICI KSDO having its office at DDS, Sec-I, Salt Lake City so this Forum lacks jusrisdiction. That the complainant No.2 admitted at Berhampore Sadar Hospital as because she was attacked cerebral stroke and on the same date she was admitted at Appollo Gleneagles Hospital where she was kept eight days in ICU and 22 days in general bed aqnd she was under the treatment of Dr. Vinod Kumar Singhania who treated the complainant No.2 of CVA right Basal Ganglia Bleed with left haemosiri…….. He also averred that the treating doctor certified that the complainant No.2 had history of hypertension for lst three years and diabeties for last two years and she was admitted in the Appollo Gleneagles Hospital on 25.11.2010 and discharged on 24.11.2011 due to hypertension and diabetes and the OP No.2 rejected the claim of the complainant No.2 as she had pre-existing illness i.e. hypertension since 2007. It is also stated in the evidence of the OP No.1 that the complainants took LICI Health Plus policy in which it is clearly indicated in clause 6(i) that in case of pre-existing illness no benefit are available and no payment will be made by the corporation for the hospital cash benefit under this policy and clause 6(ii) of the said policy clearly indicates that no benefit are available and no payment will be made by the corporation for major surgical benefit under this policy if there is pre-existing illness and the complainants at the time of taking the said policy stated that she has not been suffering from hypertension or high blood pressure and diabetes in the health detail and medical information, so the OP rightly repudiated the claim of the complainant and the instant suit is liable to be dismissed with cost.

       The complainant filed evidence on affidavit on 4^th March,2014 in which he stated that the OP No.1 issued policy certificate to this complainant after being satisfied. That on 25.11.2010 his wife namely Hena Roy unfortunately attacked with cerebral stroke and admitted to Berhampore Sadar Hospital but due her serious health condition she was further admitted to Appollo Gleneagles Hospital ( Kolkata) on 25.11.2010. There the wife of the complainant admitted 8 days in ICU and 22 days in general bed i.e. from 25.11.2010 to 24.12.2010 for total 30 days. After discharge he made several correspondences to OPs  to get the proportional medical expenses covered under the policy. But OPs only basing upon pre-existing illness of Hypertension are rejecting the claim of this complainant.

        Despite receiving notice Op No.2 &3 did not turn up so the proceeding run ex-parte against the OPs.

                Argument as advanced by the agent of the parties on 14.07.2015  heard in full.

                From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant ‘ Gobinda Roy & Others’ are  ‘Consumers’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant ‘ Gobinda Roy & Others’ are ‘Consumers’ of the opposite party?

                    From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainants herein being the consumers of the OP, who insured their life before the OP company.

     (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the           case?

                Both the complainants and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.2,62,822/- as claim for medical treatment,Rs.25,000/-as compensation for harassment & mental agony ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.         

    (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

           It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts; the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which she ought to have known had she made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

             The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (SC),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether she would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, she is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.   

         The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people throughout the nation since a long back with self generated assets i.e. goodwill of the business. The credibility of the OP Insurance Company is unquestionable and that is why the complainants insured their life before the said company without any doubt. Dispute cropped up in between the parties when the complainant did not get the claim as expensed for the treatment of her wife. The complainant jointly insured their life with his wife and daughter.

        In order to bring the present case within the purview of fraud, misrepresentation or concealment of material fact, it was necessary on the part of the OP No.1 to establish that the insured at the time of obtaining insurance was aware of her medical condition and she had intentionally concealed the same. Since the insurer has failed to prove that on 26.2.2008 i.e. date of proposal insured was aware that she has been detected hypertension and diabetes mellitus, it cannot be said that insured has indulged in fraud, misrepresentation or concealment of material fact while obtaining the insurance policy. Thus the repudiation of the claim on the part of the OP was not justified and it amounts to deficiency in service.

        The treating doctor of complainant no.2 Dr. Binod Kumar Singhania attached to Appollo Gleneagles Hospital Kolkata by a letter dated 11.10.2011 opined that the patient had history of hypertension since three years and diabetes since one year. But it is not clear to us whether since three years means, three years from the issuing certificate or from the date of admission. And no evidence adduced by the OP No.1 to clear the point.

           It was pleaded that if an insured is not aware of an ailment he may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.

             No documents in respect of treatment of the complainant No.2 before the acceptance of Proposal Forum is in the C.R. The OP failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form she supplied the correct information regarding her health.

                Usually the authorised doctor of the Insurance Company examines the insured assesses the fitness and after complete satisfaction, then only the policy will be issued. In the instant case the medical examiner Amita Mazumder (Sinha) made a confidential report in the revised format of Health Plus Plan of OP Company in respect to the health of the LA. In which she stated that BP of the LA is 80/122, Pulse rate 72 and the question No.5, the questions are, whether at any time in the past he/she was hospitalized, was operated, met with accident, has undergone any bio-chemical, radiological, cardio-logical or other tests, is currently under any treatment in these questions the answer was written as ‘No’. And a lot of questions regarding the present and past history of the health were answered. Finally in the column No.15, On Examination whether he/she appears mentally and physically healthy ?  the examiner remarked yes and put her signature on 18^th Feb,2008 at 10.30 a.m. in which the LA also signed. It appears from the confidential report of the examiner of LICI that the LA i.e. Hena Roy was examined and declared that she was mentally and physically healthy. So the LA was unaware of her disease whether she was suffering from hypertension and her illness at the material point of time i.e. taking the insurance policy does not arise. She was not aware whether she will suffer from cerebral stroke in the future and have to make claim before the Insurance Company for which the Insurance Company by repudiating her claim destructed the myth of utmost on good faith.

                Therefore, we are of considered view that there is no proof of any previous illness or ailment of the insured prior to 25.11.2010, when she became ill. Hence, it cannot be presumed that the insured, Hena Roy was aware of her aforesaid illness and she concealed the previous illness, at the time of submission of proposal form on 26.02.2008.

                      Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence not did it prove that the said treatment had any nexus with the cause of CVA- Right Basal Ganglia Bleed With Left Hemiparesis. This Forum thus came to the conclusion that there was no suppression of any material fact by the Complainant No.2 and therefore, in not settling the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.

       We also carefully went through the judgment citation submitted before us by OP No.1, i.e. i). Life Insurance Corporation Of India –V/S- MU Jakia IV (2013) CPJ 129 ( NC) ii). SHNYNI VALSAN POMBALLY-v/s- State Bank of India & Anr., I (2014) CPJ 387 ( NC) iii). Ritaben G. Modi & Anr. -V/S- LIC of India & Anr. I (2013) CPJ 10B ( NC) iv). Life Insurance Corporation of India –V/S- Neelam Sharma IV (2014) CPJ 658 ( NC).

        The documents as produced by the OP No.1 (Annexure-B) a letter to the Manager  LICI , KSDO column 3. a) it is stated that the policy in question is not a  mediclaim policy but a health insurance policy. In this plan there is a fixed benefit depending on the coverage of hospital cash benefit and major surgical benefit and not an actual cost incurred by the PI. Hence in the case  only,…… Rs. 36,300/- would be payable if there is no pre-existing illness.

         So we are in a considered opinion to allow the complaint in part as complainant No.-2 was not suffering from any disease when she signed the policy proposal of this OP Insurance Company and OP No.1 could not prove the same. We direct the OP No.1 Insurance Company to pay the agreed amount of Rs.36,300/- to the Complainant.           

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

            The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party No.1 is liable to pay the desired amount. 

                                                                                ORDER

Hence, it is ordered that the complaint be and the same is allowed in part on contest against the Opposite party No.1, without cost.

               The Opposite party No.1 is hereby directed to pay the amount of Rs.36,300/- in the head of health insurance to the complainant within 45 days from receiving this order.

                 No other reliefs are awarded to the complainant for harassment and mental agony.

                At the event of failure to comply with the order  the Opposite Party No.1 shall pay cost @ Rs.50/- for each day’s delay, if caused,  on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

Dictated and corrected by me.

       Member,                                                                                      President, 

    District Consumer Disputes                                                     District Consumer Disputes                                        

 Redressal Forum, Murshidabad.                                            Redressal Forum, Murshidabad.