Haryana

StateCommission

A/342/2015

NATIONAL INSURANCE CO.LTD. - Complainant(s)

Versus

SHIV CHARAN AND ORS. - Opp.Party(s)

P.S.BEDI

08 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                        First Appeal No.342 of 2015

                                      Date of Institution:15.04.2015

                                      Date of Decision : 08.11.2016

 

National Insurance Company Limited, 5C/1-2, B.P. RailwayRoad, Neelam Chowk, NIT, Faridabad through its Regional office,SCO No.367-37, Sector 17-A, Chandigarh, through its duly constituted Attorney.

                                                …Appellant

                                      Versus

1.      Shiv Charan Gupta R/o H.No.222, Ward NO.9, Kumharwara, Old Faridabad.

                                                …Respondent

2.      M/s Vipul Medcorp Private Ltd., 515, Udyog Vihar, Phase-V, Gurgaon.

…..Performa Respondent

CORAM:   Mr. R.K. Bishnoi, Judicial Member

                   Mrs. Urvashi Agnihotri, Member

Present:     Mr.P.S.Bedi, Advocate for the appellant.

Mr.Tanmoy Gupta, Advocate for the respondent.

                                      O R D E R

R.K. BISHNOI, JUDICIAL MEMBER

          It was alleged by the complainant that he was entitled for cashless facility under the health cover provided by the opposite parties (O.Ps.). His hip was replaced on 23.01.2006 at  G.M.Modi Hospital, Delhi where he remained admitted from 22.01.2006 to 29.01.2006 and spent Rs.1,72,648.45/-. After the renewal of policy he was again operated for Hip joint at that very hospital and remained admitted from 04.04.2007 to 10.04.2007. He spent Rs.1,63,641.70 at that time.  He submitted bills with the O.ps., but, his  claim was repudiated on the ground of concealment of previous disease and that his case was covered by exclusion clause 4.1 of medi-claim policy, whereas his case was not covered by the same.

2.      As O.P.No.1 was proceeded against ex parte so only O.P.No.2 filed reply controverting his averments and alleged that as per discharge summary Ex.R-2 issued by Gujarmal Modi Hospital, it is clear that complainant was already changed left hip, but, concealed this fact when he initially obtained insurance policy in the year 2006.  Under renewed policy he again suffered from same problem. The contract of insurance, including the contract of life assurance, are contracts uberrima fides and every material fact must be disclosed otherwise that was good ground to rescind of the contract. The concealment of previous ailment was sufficient to reject his claim. Even otherwise as per exclusion clause 4.1 he was not entitled for any claim.

3.      After going through evidence led by both the parties, Learned District Consumer Disputes Redressal Forum, Faridabad  (In short “District Forum”) allowed the complaint vide impugned order dated 18.02.2015 and directed as under:-

“Opposite parties are directed to pay Rs.1,63,641/- with interest @ 9% p.a. from the date of filing of this complaint till realization of amount within 30 (thirty) days from the date of receipt of this order to the complainant.  Opposite parties are also directed to pay Rs.5500/- as compensation towards mental agony, harassment alongwith Rs.2200/- as litigation expenses to the complainant.”

4.      Feeling aggrieved, therefrom, Appellant-opposite party has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellant vehemently argued that  from the perusal of discharge summary dated 29.01.2006 Ex.R-2 it is clear that he was suffering from secondary osteoarthritis right hip joints (AVN) and early changes on left hip, the painful restriction of right hip joints since 10 months, but, he did not disclose this fact when initial policy was obtained and subsequently when that policy was got renewed. His case falls under Exclusion clause No.4.1 of the insurance policy i.e. continuity of 48 months of policy.

7.      This argument is devoid of any force. At the time of obtaining insurance policy proposal form must have obtained by insurance company, but, that is not produced in the evidence. At that time insured must have been asked about previous illness.  In the absence of proposal form it cannot be seen whether insured answer in affirmative or negative. If insured answered in affirmative, then how insurance company can reject the claim. That was best piece of evidence which is with-held by the appellant. It is well settled proposition of law that if best piece of evidence is with-held by any party then it is to be presumed that the same was going against the same. In such like matter the benefit of doubt is to be given to the consumer and not to the service provider as opined by Hon’ble National Commission in Revision petition No.4544 of 2012 decided on 27.11.2013 titled as National Insurance Company Ltd. Vs. Gopanaboina Sathyam and revision petition No.3236 of 2013 decided on 07.08.2014 titled as Sh. Abhishek Jain Vs. HDFC Standard Life Insurance Co. Ltd. So it cannot be opined that the complainant concealed the fact of previous illness and obtained the insurance policy.  So he is entitled for compensation and impugned order dated 18.02.2015 cannot be set aside. Resultantly appeal fails and the same is hereby dismissed.

8.      The statutory amount of Rs.25,000/- deposited at the time of filing of the appeal be refunded to the appellant against proper receipt and identification.

 

November 08th, 2016             Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

 S.K.