(Delivered on 27/11/2019)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Appellant – Oriental Insurance Company Ltd. has preferred the present appeal challenging the judgment and order passed by the learned District Consumer Forum, Nagpur dated 17/01/2012 in consumer complaint No. 357/2011 whereby the learned District Consumer Forum, Nagpur allowed the complaint of the complainant and directed the appellant to pay sum of Rs. 1,87,500/- with interest and compensation of Rs. 5,000/- and litigation cost of Rs. 2000/-. Short facts leading to filing of the present appeal may be narrated briefly as under. (Appellant and respondent shall hereinafter be referred by their original nomenclature)
2. Complainant – Mr. Amulya Sinha , is a resident of Trimurti Nagar, Nagpur and had taken medical insurance policy namely Family Floater Policy from Oriental Insurance Company and same was for the period from 20/06/2009 to 19/06/2010. The complainant had also paid premium of Rs. 20,681/-. Earlier to the same, the complainant had also taken the medical policy from 2002 to 2009 but complainant had not submitted any claim. On 27/08/2009 the complainant felt pain in the chest and so he came to be examined Dr. Nikhil Balankhed and he referred him to Wockhardt Hospital. The complainant has contended that on 01/04/2010 the Angioplasty was performed and complainant incurred medical expenses to the tune of Rs. 3,95,908/-. The complainant therefore, submitted the claim with the O.P.- Oriental Insurance Company Ltd. for the sum of Rs. 3,00,000/- but O.P.- Oriental Insurance Company Ltd accepted the claim only to the extent of Rs. 1,25,000/- and repudiated rest of the claim for remaining sum of Rs. 1,75,000/- on the ground that the complainant has suppressed his illness and he was already suffering from chronic hyper tension. The complainant has suffered from great mental agony and also pecuniary loss due to repudiation of the claim and so the complainant was constrained to file complaint under section 12 of the Consumer Protection Act, 1986.
3. The O.P. has appeared and resisted the complaint by filing written version. The O.P. has admitted that the complainant had taken the Happy Floater Policy for a sum of Rs. 3,00,000/-. The O.P. has categorically denied that the complainant was not suffering from any illness or hyper tension prior to the time when he had taken the Floater Policy. The O.P. has taken a stand that the complainant was suffering from hyper tension since one year prior to taking the Happy Floater Policy and so as per exclusion clause Nos. 4.1 and 4.3 of the terms and conditions, the complainant was not at all eligible for a sum of Rs. 3,00,000/-, but complainant was eligible only to the extent of Rs. 1,25,000/-, which was already paid. The O.P. therefore, has contended that the complaint filed by the complainant deserves to be dismissed with cost.
4. The complainant as well as O.P. thereafter laid their evidence affidavit on record as well as written notes of argument . The learned District Consumer Forum, Nagpur then heard the learned advocates for both the parties and thereafter came to the conclusion that there was no material to show that the complainant was suffering from any pre disease illness or hyper tension and there was also not suppression of the fact on the part of the complainant. The learned District Consumer Forum, Nagpur also reached to the conclusion that the exclusion clause will not be attracted and complainant was entitled for total sum of Rs. 3,00,000/- as insured in the Happy Floater Policy. The learned District Consumer Forum, Nagpur thereby partly allowed the complaint and directed the O.P. to pay balance amount of Rs. 1,87,500/- with interest at the rate of 9% and also to pay compensation of Rs. 5,000/- towards mental and physical harassment caused to the complainant. Against this impugned order dated 17/01/2012 passed by the learned District Consumer Forum, Nagpur ,the present appellant has come up in appeal.
5. We have heard Mr. Rahate, learned advocate for the appellant and Mr. J.S. Bamrah, learned advocate for the respondent/complainant. We have also gone through the written notes of argument filed by appellant as well as respondent and both appellant and respondent have reiterated the contentions raised in the pleading.
6. The foremost contentions raised by Mr. Rahate, learned advocate for the appellant before us is that the learned District Consumer Forum, Nagpur has not properly appreciated the fact that the complainant was known case of hyper tension since one year prior to the period of policy. Secondly , the learned District Consumer Forum, Nagpur has also not properly appreciated the exclusion clause Nos. 4.1 & 4.3 on the basis of the claim of the complainant came to be repudiated. Mr. J.S. Bamrah , learned advocate for the respondent has strongly rebutted this contention. However, before dealing with the contentions which were advanced by the learned advocate at the bar it would be useful to deal with the letter to repudiation dated 31/08/2010 about which there is no dispute between the parties. It is also not in dispute that there was exchange of correspondence on this aspect between the complainant as well as appellant –Oriental Insurance Company Ltd. Coming now back to the letter of repudiation dated 31/08/2010 the appellant – Oriental Insurance Company Ltd. had given reason for Repudiation that as per pre authorization form the patient –Mr. Amulya Sinha who was father of the complainant was known case of the hyper tension since one year prior to the policy. The record shows that the complainant had given reply to the Oriental Insurance Company from time to time and more particularly on 02/02/2011 denying the stand of the Oriental Insurance Company. The respondent /complainant had pointed out that prior to being admitted in the Wockhardt Hospital , Nagpur on 01/04/2010 his father namely Mr. Amulya Sinha was examined by Dr. Nikhil Balankhed of G.T. Memorial Hospital and the prescriptions also do not show that he was suffering from hyper tension since last one year. The respondent has also stated in the reply that his father was keeping good health till he consulted Dr. Nikhil Balankhed on 28/08/2009 in the O.P.D. where medicines were prescribed after taro medical examination. The respondent also clarified that he had no availed of any claim in the previous policy and had also paid premium for the Floater Policy which was for the period from 20/06/2009 to 19/06/2010. Admittedly, The Family Floater Policy was issued for first time on 20/06/2009 for sum of Rs. 3,00,000/- and the father of the complainant had also under gone medical treatment during this period. However, Mr. Rahate, learned advocate for the appellant has placed much emphasis on the exclusion clause in the terms and conditions of the insurance policy and so it would be convenient to deal with the same and they read as under.
Exclusion Clause No. 4.1:-Any ailment /disease/injuries/health conditions which are pre-existing (treated /untreated , declared/not declared in the proposal form), when the cover incepts for the first item are excluded for such insured person upto 4 years of the policy being in force continuously. For the purpose of applying this conditions, the date of inception of the policy taken from the Company shall be considered, provided the renewals have been continuous and without any break in period. This exclusion will also apply to any complications arising from pre-existing ailments/diseases and such complications shall be considered as a par of the pre-existing health condition or disease.
Exclusion Clause No. 4.3.:- If the continuity of renewal is not maintained with the Company then subsequent cover shall be treated as fresh policy and clause 4.1 shall apply unless agreed by the Company and suitable endorsement passed on the policy. If the sum insured is enhanced subsequent to the inception of the policy , the exclusion No. 4.1 will apply afresh for the enhanced portion of the sum insured for the purpose of this section.
7. Mr. Rahate, learned advocate for the appellant has submitted that above exclusionary clause comes into play if the patient suffers from any pre existing ailment which is not declared in the proposal form prior to the inception of the policy. At the cost of repetition it may be stated that the claim was also repudiated on this count. Mr. J. S. Bamrah, learned advocate for the respondent has vehemently challenged this aspect and we have already referred to the correspondence which took place between the complainant and respondent. Mr. J.S. Bamrah, learned advocate for the respondent has submitted that the Oriental Insurance Company had not placed on record any documents which would go to show that the father of the complainant was a known case of hyper tension. Mr. J.S. Bamrah, learned advocate for the respondent has submitted that the appellant had also not placed on record any affidavit of the person who filled the claim form nor any medical case papers have been placed on record to show that the father of the complainant was a known case of a hyper tension as mentioned in the letter of repudiation. We have also considered the documents placed on record and pleadings and they show that Mr. Amulya Sinha complained of muscular pain and heaviness in shoulder and so he consulted Dr. Nikhil Balankhed on 28/10/2009 and thereafter Dr. Nikhil Balankhed again referred him to Wockhardt Hospital. It is necessary to point out that the appellant – Oriental Insurance Company has not placed on record any other medical record or medical papers to show that Mr. Amulya Sinha was suffering from hyper tension since one year prior to inception of Family Floater Policy due to which he would become disentitled for the benefit of the Family Floater Policy for which he had already paid the premium. On this aspect Mr. J.S. Bamrah , learned advocate has also heavily relied upon the series of judgments. At the outset Mr. J. S. Bamrah learned advocate has relied upon one judgment of Maharashtra State Commission, reported in 2013(1)ALL MR (Journal)1 in the case of Star Health and Allied Insurance Company Ltd. Vs. Anil Chandrant Argade. In that case also the facts were quite similar and insurance claim was repudiated on the ground of pre- existing disease relating to heart which was also congenital. It was observed that there was no material to demonstrate that the disease was pre-existing and so the repudiation was not accepted. Mr. J.S. Bamrah, learned advocate for the respondent has also relied upon another judgment of Hon’ble National Consumer Commission in the case of New India Assurance Company Ltd. Vs. Rakesh Kumar, reported in III(2014) CPJ 340 (NC). In that case also the claim was repudiated but the O.P. did not produce any evidence to show that the complainant was suffering from hyper tension. It was observed by the Hon’ble National Commission that people can live for months, even years without knowing about disease and repudiation was not justified. On this count alone when concealment was not established. Here in the present case also before us there was no material to draw any inference that there was concealment of facts relating to the illness. In the present case before us appellant – Oriental Insurance Company had also not laid any other evidence nor examined any medical expert on this aspect and so no such inference can be drawn . In the same way Mr. J.S. Bamrah, learned advocate for the respondent has also relied upon another judgment of the Hon’ble National Commission in the case of Ravindra Singh Bindra Vs. National Insurance Co. Ltd. , reported in I (2017)CPJ 498 (NC). Here also the facts were identical. Mr. J.S. Bhamrah, learned advocate for the respondent has also relied upon one judgment of the Hon’ble National Commission in the case of Bajaj Allainz Life Insurance Company Ltd. Vs. Sowbhagyalaxmi and other, reported in 2013(2) CPR 137 (NC). In that case also it was observed that pre existing ailment must be proved from medical reports. We find that the facts in the present case before us are squarely covered by the facts in the judgments on which reliance has been placed by Mr. J.S. Bamrah, learned advocate for the respondent We have also find that the learned District Consumer Forum, Nagpur have also elaborately dealt with this aspect and has rightly given findings that the exclusion clause is not attracted and so we find no material to disturb or interfere with the said findings.
8. Lastly it is submitted by Mr. Rahate, learned advocate for the appellant that the terms and conditions in any contract of insurance had to be strictly construed to determine the extent of insures liability. On this aspect he has relied upon the judgment of Hon’ble Apex Court in the case of M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Company, reported in 2011(1) ALL MR 453 and Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd., reported in I (2009) CPJ 6 (SC). We have gone though both these judgments on which reliance has been placed by Mr. Rahate, learned advocate for the appellant and there can be no dispute regarding this proposition which is firmly settled. In view of the discussion already held above, we feel that these judgments relied upon by the learned advocate for the appellant will not go to help the case of the appellant. In the light of the aforesaid discussion we are unable to accept the contentions of the appellant that the learned District Consumer Forum, Nagpur has not appreciated the evidence in the proper perspective or has given findings which were erroneous in nature. As such by way of sequel , we proceed to pass the following order.
ORDER
i. The appeal is hereby dismissed.
ii. No order as to cost in appeal.
iii. Copy of order be furnished to both the parties, free of cost.