Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is filed by original opposite party Nos.1 & 2, which are hereinafter referred to as appellants, feeling aggrieved by the order dtd.22.10.2014, passed by District Consumer Forum, Gondia in Consumer Complaint bearing No.6/2013, by which the said consumer complaint has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under.
The original complainant, who is hereinafter referred to as respondent, had purchased policy bearing No.002684889 under the title as “Universal Health Policy” from the appellants by paying premium of Rs.13,198/- by way of cheque to the appellants. The period of policy was from 13.05.2009 to 13.05.2012. The sum assured was of Rs.8.00 Lacs. The respondent all of a sudden became ill on 20.11.2009 and therefore, he was admitted in the hospital of Dr. Bahekar of Gondia. He got no relief in that hospital. Therefore, he was shifted to Central India Institute of Medical Sciences (CIIMS) Hospital of Nagpur on 22.11.2009. He took treatment in that hospital from 22.11.2009 to 16.02.2010, then from 17.02.2010 to 13.03.2010 and lastly from 04.06.2010 to 06.06.2010. During that period he had undergone operation in that hospital. He alleged that he incurred total expenses of Rs.8.00 Lacs to Rs.9.00 Lacs for his above treatment. He, therefore, submitted a claim alongwith documents for reimbursement of the bills to the appellants. The appellants repudiated his claim vide letter dtd.07.06.2011. According to the respondent, repudiation of his claim is illegal as he was not suffering from any ailment prior to obtaining policy and he had also no knowledge about any ailment and he suppressed nothing while obtaining policy. Therefore, alleging deficiency in service on the part of appellants, he filed consumer complaint against the appellants claiming Rs.8.00 Lacs from them with interest @ 18% p.a. from the date of repudiation i.e. from 07.06.2011. He further claimed compensation of Rs.25,000/- for physical & mental harassment and litigation cost of Rs.5,000/- from the appellants.
3. The appellants appeared before the Forum below and filed their common reply. The appellants mainly submitted that the respondent suppressed material facts about his medical history prior to his applying for policy. He was suffering from Sickle Cell prior to submitting proposal for policy. Dr. N Chandak, Senior Consultant Neurologist of CIIMS Hospital issued medical certificate about his pre-existing disease. He had given false reply to the question Nos.VII C-2 (a) and 3(g) in the proposal form submitted by him. Therefore, his claim has been rightly repudiated by the appellants. Therefore, it was prayed by the appellants that the complaint may be dismissed with cost.
4. The Forum below after hearing both the parties and considering evidence brought on record, agreed with the aforesaid case of the appellants and partly allowed the complaint by passing impugned order. The Forum directed the appellants i.e. original opposite party Nos.1 & 2 to pay to the original complainant / respondent herein Rs.8.00 Lacs with interest @ 9% p.a. from 16.01.2013 till its realisation by him and also to pay him compensation of Rs.10,000/- for mental harassment & litigation cost of Rs.5,000/-.
5. As observed above, feeling aggrieved by the said order the original opposite party Nos.1 & 2 have filed this appeal. We have heard the learned advocate of both the parties and perused the entire record of the appeal.
- The learned advocate of the appellants relied on the certificate dtd.21.09.2010 issued by Dr. N Chandak of CIIMS Hospital, to show that the respondent herein had Sickle Cell disease as per record of that hospital dtd.31.04.2008. Thus, according to the learned advocate of the appellants, the respondent suppressed the Sickle Cell disease while submitting proposal Form for obtaining the policy and therefore, the contract of the policy is vitiated. Thus, he argued that the Forum below has not properly considered the said certificate and erroneously held that the respondent is entitled to Rs.8.00 Lacs with interest, compensation & cost. He, therefore, requested that the impugned order may be set aside.
7. On the other hand, the learned advocate of the respondent supported the impugned order and relied on the decisions in the following cases.
i. LIC of India Vs. Vinod Rani, II(2007) CPJ 58 (NC).
In that case, the LIC could not show that the declaration made in the proposal Form was given fraudulently. Therefore, the order of the District Consumer Forum, by which, the complaint was allowed, was upheld.
ii. LIC of India Vs. Tejalben Kananbhai Patel, (I) 2007 CPJ 275 (NC).
In that case, the life assured was hospitalised for five days for fever, throat pen, etc. His death was occurred thereafter eight months due to massive heart attack. The claim was repudiated on the ground of suppression about disease. It is held that suppression of common cold / fever is not at all relevant and thus, there is no suppression of material fact and insured is liable to pay the insured sum.
iii. LIC of India Vs. Patel Ganesh Bhai Ramji Bhai, II(2007) CPJ 242(NC).
In that case, the life assured was medically examined before issuance of policy. At that time, presence of TB was not found. It is held that there is no suppression of material fact and claim has been wrongly repudiated.
- Surinder Kaur & Ors. Vs. LIC of India & Ors., II(2005) CPJ 32 (NC).
In that case, no record was produced to prove that the deceased life assured was chronic alcoholic for last 12 years. Doctor’s opinion based on hospital history is not sufficient to repudiate the claim as no treatment record prior to proposal was produced. Therefore, it was held that the repudiation of claim on the basis of hospital record is unjustified.
8. On the other hand, the appellants’ advocate relied on the decision of the Hon’ble Supreme court in the case of Satwant Kaur Sandhu Vs. New India Assurance Co Ltd., 2009 CJ (SC) 1392.
In that case in the proposal Form, the deceased had stated that he was in sound health and he had not undergone any treatment or operation in last 12 months. He had concealed in that proposal Form that he was a known case of chronic renal failure being a diabetic for sixteen years. Therefore, it is held that the insured has fully justified the repudiation of the claim on the ground of suppression of material fact.
9. Thus, it is to be seen whether the respondent fraudulently suppressed while submitting proposal Form for policy that he is a patient of Sickle Cell disease. According to the respondent, he had no knowledge of the said disease at the time of submitting proposal Form. The appellant relied on the certificate dtd. 21.09.2010 issued by Dr. N Chandak of CIIMS Hospital to prove pre-existing disease. As per that certificate the respondent was admitted in CIIMS Hospital on 22.11.2009 and he was diagnosed as a case of Viral Encephalitis with Sequelae SCD. It is further stated in the certificate that after conservative treatment he was discharged on 16.02.2010 and thereafter he was readmitted twice and discharged and that recently, he is reviewed in Neurology OPD on 18.09.2010. As per his old record dtd.21.04.2008, he has Sickle Cell disease. It is further stated in the certificate that his present illness does not have any relation to sickle cell disease.
10. Thus, it is found that Dr. N Chandak has no knowledge of alleged Sickle Cell disease of the respondent as he has not treated the respondent for said disease. He gave his opinion about Sickle Cell, only on the basis of alleged old record dtd. 21.04.2008 of CIIMS Hospital. However, copy of the said old record dtd.21.04.2008 was neither produced before the Forum below nor before us in appeal. Moreover, no explanation is given by the appellant as to why copies of actual record dtd. 21.04.2008 of the CIIMS Hospital was not produced in support of the said certificate to prove that in that hospital the respondent was diagnosed Sickle Cell disease on 21.04.2008 and he also took treatment for that disease in that hospital. Moreover, Dr. N Chandak has not stated in the certificate dtd. 21.09.2010 that he personally verified the old record dtd.21.04.2008 of that hospital before issuing that certificate or whether any of the employee of that hospital gave him that information orally about the old record of that hospital.
11. In our view, in the absence of copies of old record of the hospital, it cannot be proved that the respondent was diagnosed Sickle Cell disease as on 21.04.2008 and he was aware of the said disease on or about 21.04.2008. It is also not the case of the respondent that he was aware of the said disease when he submitted proposal Form for policy to the appellants. Therefore, it cannot be said that the respondent fraudulently suppressed the disease of Sickle Cell while submitting proposal Form for the Policy. It cannot be also said that he gave wrong answers in the proposal Form about his health condition while submitting proposal Form.
12. Moreover, there is no document on record subsequent to the date of policy that the respondent has been diagnosed Sickle cell disease and he took treatment for the same. Thus, we hold that as it is not proved that the respondent was suffering from Sickle Cell disease and he fraudulently and knowingly suppressed his said disease while obtaining policy from the appellant, repudiation of his claim for sum assured of Rs.8.00 Lacs, constitutes deficiency in service on the part of the appellant. Moreover, the respondent produced document on record showing that he incurred expenses of more than Rs.8.00 Lacs in hospital for his treatment of disease namely Viral Encephalitis with Sequelae SCD.
13. We also hold that the aforesaid decisions, relied on by the learned advocate of the appellant, are of no assistance to the appellant since it is not proved that respondent fraudulently suppressed alleged pre-existing disease. Hence, the appeal deserves to be dismissed.
In the result, following order is passed.
ORDER
i. The appal is dismissed.
ii. No order as to costs in this appeal.
iii. Copy of the order be furnished to both parties free of cost.
iv. The original record of the consumer complaint bearing No. 6/2013 called for, be sent back forthwith to District Consumer Forum, Gondia.
