Tripura

StateCommission

A/22/2018

Life Insurance Corporation of India - Complainant(s)

Versus

Sri. Tinkunath Sharma - Opp.Party(s)

Mr. Prahlad Kr. Debnath

12 Jul 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.22.2018

 

 

1. Life Insurance Corporation of India,

Silchar Divisional Office,

Cachar, Assam.

 

2. Branch Manager, LICI, Teliamura, S.O.,

A.A. Road, Teliamura,

Tripura - 799201.

 

          [The Appellants are represented by the Branch Manager, LICI, Agartala Branch-I, Paradise Chowmuhani, Agartala, District - West Tripura, Pin: 799 001.]

… … … … … Appellant/Opposite Parties.

 

Vs

 

 

1. Sri Tinku Nath Sharma,

C/o Subhash Nath Sharma,

Durganagar, Khowai, P.S. Khowai,

Khowai, Tripura.

• … … … … … Respondent/Complainant.

 

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellants:                                         Mr. Prahlad Kr. Debnath, Adv.

For the Respondent:                                      Mr. Udai Sankar Singha, Adv.

Date of Hearing & Delivery of Judgment:     12.07.2018.

 

J U D G M E N T [O R A L]

  

U.B. Saha, J,

The instant appeal is filed against the judgment dated 03.04.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.108 of 2017 wherein the learned District Forum held that the petitioner is entitled to get the claim amounting to Rs.1,66,702/- (Rupees One lac sixty six thousand seven hundred two) as it is supported by sufficient documents and covered by policy and also to get Rs.25,000/- (Rupees Twenty five thousand) as compensation for deficiency of service of the opposite parties-Insurance Company and Rs.5,000/- (Rupees Five thousand) for cost of litigation, in total Rs.1,96,702/- (Rupees One lac ninety six thousand seven hundred two). Amount is to be paid within two months, if not paid, it will carry interest @ 9% per annum. An application has also been filed for condoning the delay of 33 days in preferring the appeal.   

2. Heard Mr. Prahlad Kr. Debnath, Ld. Counsel appearing on behalf of the appellants (hereinafter referred to as opposite parties/Insurance Company) as well as Mr. Udai Sankar Singha, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as complainant/petitioner).
3. We have gone through the reasons for delay as explained in the condonation petition. The prayer is not objected by the Ld. Counsel appearing for the respondent-complainant. According to us, the delay is properly explained. Thus, the delay of 33 days in preferring the appeal is hereby condoned. The condonation petition is accordingly, disposed of.
4. As agreed to by the Ld. Counsel appearing for the parties and as the record of learned District Forum has already been received, the appeal is taken up for final disposal at the admission stage itself.   
5. Brief facts needed to be discussed are as follows:-

The Complainant-petitioner purchased LIC's ‘Jeevan Arogya Policy’ from the opposite parties-Insurance Company and after purchased of the policy, he underwent angioplasty operation on 27.04.2016 at Apollo Hospital, Chennai. After recovery he submitted claim for Rs.1,66,702/- as cost of treatment with supportive documents, but the claim was repudiated on the ground that he has been suffering from hypertension at the time of purchasing the policy and he had suppressed the said fact. He then approached the Ombudsman, but did not get any relief. Thereafter, he approached the learned District Forum under Section 12 of the Consumer Protection Act, 1986 for redress.

6. The opposite parties-Insurance Company appeared and filed their written statement denying the claim. It is stated that the petitioner suppressed the material fact at the time of purchasing the policy. He committed fraud and his claim was rightly repudiated by the opposite parties-Insurance Company. There was no deficiency of service by the Insurance Company.
7. On the basis of pleadings made by the parties, the learned District Forum framed the following points for deciding the case:-

1. Whether the petitioner's claim for reimbursement for the cost of treatment was repudiated without reasonable cause?
2. Whether the petitioner is entitled to get cost of treatment and compensation as claimed? 

8. Complainant-petitioner produced the Policy Certificate, Rejection letter, Discharge Summary, Claim Form, Bills of the Apollo Hospital, Reports, Deposit receipt of Apollo Hospital, C.T. Scan Report, Boarding Pass of the flight, Copy of memo of appeal to the Ombudsman, Receipt of complaint, Award of Insurance Ombudsman. Complainant-petitioner submitted his statement on affidavit and examined himself as P.W.1. He also examined another witness, namely, Sri Bijoy Choudhury as P.W.2.
9. Opposite parties-Insurance Company, on the other hand, produced the Proposal Form of Insurance Policy, Copy of Insurance Policy, Discharge Summary of Apollo Hospital and also statement on affidavit of one witness, namely, Md. Ali Chowdhury, Manager, (Admn.), Life Insurance Corporation of India, Agartala Branch-I.
10. Upon consideration of all the evidence on record, the learned District Forum passed the impugned judgment allowing the complaint petition as stated (supra).
11. Mr. Debnath, Ld. Counsel while urging for setting aside the impugned judgment would contend that though the insured complainant was suffering from hypertension for the last two years, but he did not get this disease recorded in the proposal form. Thus, he committed fraud for which as per terms and conditions, he is not entitled to the claim as sought for. In support of his contention, he has relied upon the discharge summary issued by the Apollo Hospital, Chennai, Department of Vascular Surgery wherein it is mentioned that history of hypertension for two years and not on medication. He also pointed out that in the discharge summary particularly the column of ‘Diagnosis’ it is mentioned that ‘Critical ischemia - Right lower limb/Right internal iliac artery stenosis Polycythemia vera Systemic Hypertension’. Thus according to him, the complainant-petitioner suppressed those facts at the time of purchasing the policy. Therefore, he is not entitled to get any of his claims for treatment.
12. Mr. Singha, Ld. Counsel while supporting the impugned judgment passed by the learned District Forum would contend that the complainant-petitioner in his evidence specifically stated that he was never treated nor underwent any treatment for hypertension prior to his surgery at Apollo Hospital, Chennai though it is stated that he had fallen from bicycle in the year 2003, but there was no necessity for any treatment for the said incident. He further submits that the complainant-petitioner in his examination-in-chief by way of affidavit also stated that he did not commit any fraud at the time of purchasing the policy, but the opposite parties-Insurance Company did not cross-examined the complainant-petitioner on any point, rather the cross-examination was dismissed with. He again submits that his claim was for the purpose of his angioplasty operation at Apollo Hospital, Chennai and for deficiency of service of the opposite parties-Insurance Company as well as the cost of litigation. He has also contended that the onus to prove that there was material concealment of hypertension by the complainant-petitioner was on the Insurance Company before the learned District Forum which they failed. He has finally contended that it is not the case of the opposite parties-Insurance Company that before the angioplasty operation, the complainant-petitioner was aware about his hypertension. In support of his aforesaid contention he has relied upon a judgment of the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.2372 of 2003, Decided on 25^th October, 2004 [Life Insurance Corporation of India and others Vs Dr. P.S. Aggarwal, Distt. Hardwar] wherein the Hon’ble National Commission decided almost a similar case.
13. We have considered the evidence on record and the impugned judgment. It is the admitted fact that the petitioner purchased LIC’s ‘Jeevan Arogya Policy’ from the opposite parties-Insurance Company and after purchased of policy, he underwent angioplasty operation on 27.04.2016 i.e. within the lifetime of the policy. The complainant-petitioner in his statement on affidavit admittedly stated that he had undergone treatment in the Apollo Hospital, Chennai. He also stated that he never underwent any treatment for hypertension. Admittedly, the complainant-petitioner was not cross-examined by the opposite parties-Insurance Company. It is also admitted position that for the angioplasty surgery, the complainant-petitioner was admitted at Apollo Hospital, Chennai on 26.04.2016 and was discharge on 29.04.2016. The learned District Forum in its findings specifically stated that the evidence produced before it do not support the facts that the petitioner was a patient suffering from hypertension in the year 2016 which will be evident from the Paragraph-16 and 17 of the impugned judgment and the same are given below:-

“16. The evidence as produced before us do not support the facts that the petitioner was patient of hypertension in the year 2016. He was not taking any medicine for hypertension. At the time of his treatment after more than one year in the Apollo Hospital his systemic hypertension was detected by the doctors. It was assumed that he was suffering from that disease at the time of purchasing policy. It is clear that petitioner was not aware about such hypertension at the time of purchasing policy. O.P. Insurance company also did not arrange for his examination by any doctor and relied on the statement that he was hypertensive at the time of purchasing policy. Accordingly direction given by them which was accepted.

17. Some question were put to the petitioner to describe the health details and petitioner replied that he had no blood pressure, hypertension or high blood pressure as he was not aware about it on 29th April 2015 when he signed in the declaration. He was also not under medication. In such a position we can not say that petitioner suppressed the material fact knowing fully that he was a patient of hypertension. It is true that in case of suppression of material fact he is not entitled to get the cost of treatment. But in this case on scrutiny of the evidence it is found that petitioner was not aware about his hypertension and there is no specific evidence to support that on 29.04.2015 he had been suffering from high blood pressure. He did not make any false statement as such.”

14. We have also gone through the award of Insurance Ombudsman. According to us, the reasons given by the Ombudsman for rejecting the claim of the complainant-petitioner is wholly unreasonable and unsustainable. In Dr. P.S. Aggarwal (supra) the Hon’ble National Commission while dismissing the Revision Petition preferred by the Life Insurance Corporation of India specifically stated that “The onus to prove that there was material concealment of any disease, which directly proved fatal, was on the petitions Insurance Company. In addition to above, the petitioner was supposed to prove that at the time of taking policy, the person who gave the information, knew about such a disease and he withheld it with an intention to defraud the Insurance Company.” The Hon’ble National Commission also took note of a judgment of the Hon’ble Supreme Court in LIC and others. Vs. Asha Goel, 2001(2) SCC 160, wherein the Hon’ble Apex Court considered the judgment of Mithoolal Nayak. For the ready reference, Paragraph-3 of the said judgment is quoted herein under:-

“3.The onus to prove that there was material concealment of any disease, which directly proved fatal, was on the petitions Insurance Company. In addition to above, the petitioner was supposed to prove that at the time of taking policy, the person who gave the information, knew about such a disease and he withheld it with an intention to defraud the Insurance Company. In LIC and others. vs. Asha Goel - 2001(2) SCC 160, the said judgment of Mithoolal Nayak was considered:

“In this connection, we may notice the decision of this Court in Mithoolal Nayak vs. LIC of India in which the position of law was staled thus:

“The three conditions for the application of the second part of Section 45 are-

1. the statement must be on a material matter or must suppress facts which it was material to disclose;
2. the suppression must be fraudulently made by the policy-holder and
3. the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose...”

But one thing was further observed in para-12 as under:

“.....For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person”.

In Paragraph-4 of the said judgment the Hon’ble National Commission stated, inter alia, that “In the present case, it is evident that the information collected from the records of Apollo Hospital is not primary piece of evidence but the primary evidence would be of the doctors who recorded the information in Discharge Summary. The doctor who prepared the Discharge Summary has not been produced.” In the instant case, though the opposite parties-Insurance Company relied upon the discharge summary of the complainant-petitioner issued by the Apollo Hospital, Chennai, but the doctor who prepared the discharge summary has not been produced and examined.

In view of the judgment of the Hon’ble National Commission, the discharge summary relied upon by the Insurance Company cannot be as primary piece of evidence. More so, the Insurance Company did not adduce any evidence to show that at the time of purchasing the policy, the complainant-petitioner was aware regarding his hypertension as mentioned in the discharge summary. Thus, we are unable to accept the contention of the opposite parties-Insurance Company that the complainant-petitioner had suppressed the facts of his suffering from hypertension at the time of purchasing the policy for which the Insurance Company has repudiated the claim of the complainant-petitioner. Before issuance of the insurance policy by the Insurance Company, it is the duty of the Insurance Company to examine the insured, but in the instant case, there is no such evidence as to whether the complainant-petitioner was examined by the doctor of the Insurance Company or not. Thus, it cannot be said that the complainant-petitioner suppressed the facts of his suffering from the disease like hypertension while he purchased the policy.

Upon perusal of the impugned judgment and the reasons given therein, we are of the considered opinion that this is not a fit case for reversing and/or setting aside the impugned judgment in absence of anything to show that the learned District Forum committed any wrong. Thus it is not necessary to interfere with the judgment impugned. Accordingly, the same is not interfered with. For the aforesaid reasons and discussions, the appeal is dismissed being devoid of merit. The parties are left to bear their own costs.  

Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura