Haryana

Ambala

CC/345/2016

Sanjay Kumar Gupta - Complainant(s)

Versus

Star Health and Allied Insurance Co.Ltd - Opp.Party(s)

Gagan Kohli

12 Feb 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 345 of 2016.

                                                          Date of Institution         : 31.08.2016.

                                                          Date of decision   : 12.02.2018.

 

Sanjay Kumar Gupta aged about5 49 years House No.54-A, Ambala Cantt.

 

……. Complainant.

                                      Versus

 

1.Star Health and Allied Insurance Co.Limited, SCO No.257, 2^nd Floor, Sector-44C, Chandigarh through its Branch Manager.

2.Star Health and Allied Insurance Co.Limited, KRM Centre, VI Floor, No.2, Harrington Road, Chatpet, Chennai-600031.

3.Sarabjit Lal Lamba, House No.260, Housing Board Colony, Ambala Cantt. agent of the insurer company Start Health and Allied Insurance Co.Limited, e-mail Smallsaving@ymail.com.

                                                                             ….…. Opposite parties.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

Present:       Sh.Gagan Kohli, counsel for complainant.

                   Sh.Mohinder Bindal, counsel for OP Nos. 1 & 2.                                                OP No.3 exparte.

 

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 with the averments that he had purchased a medi-claim from Op No.1 through Op No.3 under Family Health Optima Insurance Plan for his family including wife Monica Gupta, his daughters ishita & Tanya & for his son Arjun on proposed dated 27.03.2012 with date of inception of first policy as 29.03.2012 for insured value of Rs.5 lac (basic floater sum) which he renewed in 2013, 2014 and continued till the year 2015-16 for insured value Rs.5 lac vide policy No.P/161113/01/2015/003083 valid from 29.03.2015 to midnight of 28.03.2016 having previous policy No.P/161113/01/2014/002533 for a consideration of premium value Rs.17742/-. The policy is continued for the last four years and he has been making the payment thereof regularly. In July, 2014 for the first time son of the complainant felt ear problem as he was suffering from Alopecia which developed in July, 2013. On 05.07.2014 the complainant for the first time got his son examined from Loomba Hospital, Ambala Cantt. for the said problem and then further on 30.07.2014 from Abhinil Hospital, Ambala Cantt. and simultaneously from MM Institute of Medical Sciences, Mulana from 05.08.2014 to 05.09.2014. Thereafter the complainant got his treated from Dr.Anuj Kaushal on 05.11.2014 & 04.05.20115 and after that got treatment from PGI, Chandigarh on 26.08.2014 and subsequently on 26.03.2015 from Dr.Girish Raheja. On the advice of the doctors Audiometry was got done by Anand Hearing on 30.07.2014 at PGI on 26.08.2014 by Dr.Girish Raheja on 26.03.2015 and by Dr.Kaushal on 11.05.2015. The complainant after consulting various ENT specialists got the MRI done from Rajeev Ultrasound, Ambala Cantt. and contrast MRI was got done on 27.03.2015 and the complainant was suggested to consult the neurologist for the treatment. After that Dr.Anupan Jindal was further consulted at Mayo Hospital, Mohali on 21.11.2014 & 22.08.2015 and Dr.P.N.Ranjen was consulted on 30.03.2015 and Dr.Gagandeep on 04.09.2015. On 29.09.2015 the complainant further visited Global Health Pvt.Ltd. Medanta Institute of Neurosciences, Gurgaon and his son was discharged on the same day. On 04.09.2015 the complainant took his son to Dayanand Medical College & Hospital, Ludhiana for treatment. The complainant spent approximately Rs.50,000/- to various hospitals for the treatment of his son. As per policy, the OPs were indemnify the cost of treatment and tests of his son and therefore, he had submitted Rs.1,43,345/- the payments receipts of various hospitals but the Ops repudiated the claim of the complainant vide letter dated 04.01.2016 with ulterior motive. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C42.

2.                          On notice Ops appeared and filed their separate replies. OP Nos. 1 & 2 in their joint reply have taken many preliminary objections such as jurisdiction, concealment of material facts and maintainability etc. The son of the complainant had developed decreased hearing left ear for 4 years and alopecia. The alopecia cannot develop all of sudden and proved to be a pre-existing disease. At the time of inspection of policy from 29.03.2012 to 28.03.2013, the insured have not disclosed about the medical history/health details of the insured person in the proposal form which amounts to misrepresentation of material facts. Hence, the claim was rightly repudiated as per condition No.8 of the policy and the same was communicated to the insured vide letter dated 04.01.2016. Due to misrepresentation and non disclosure of material facts, the insurance policy qua Mr.Arjun insured was cancelled as per condition No.15 of the policy and the complaint was communicated about the cancellation vide letter dated 07.01.2016 but the complainant has filed the present false complaint by exploiting the process of law.  The son of the complainant was having pre-existing disease which the complainant has concealed from the insurance company which is clear cut violation of terms and conditions of the insurance policy. The OPs have rightly repudiated the claim of the complainant and that too was without any discrimination.  There is no deficiency in service on the part of OPs. Other contentions have been controverted and prayer for dismissal of the complaint has been made.  

                   OP no.3 in its reply has submitted that as per Section 230 of Indian contract Act an agent can neither sue nor be sued except under the special   circumstances mentioned therein. There is no deficiency in service and unfair trade practice on its part. Prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavit Annexure RA and documents Annexure R1 to Annexure R21.

3.                We have heard learned counsel for the parties and gone through the case file very carefully.

4.                Undisputedly, the complainant and his family members have obtained an insurance policy from the Ops and the same was renewed from time to time. The grouse of the complainant is that his son who is also insured fell ill and took treatment from various doctors at various hospitals but the OPs have repudiated the claim to the tune of Rs.1,43,345/-spent during his treatment despite the fact that it was the duty of the insurance company to indemnify the same.

5.                On the other hand learned counsel for the OPs argued that the policy in question for minor son of the complainant has been obtained by concealment the material facts because at the time of obtaining the policy in question Arjun Gupta was having pre-existing disease for which the claim has been submitted. The insurance company has rightly repudiated the claim of the complainant.  In support of his contentions he drew the attention of this Forum towards document Annexure R11 i.e. OPD slip of Medanta Global Health Pvt. Limited issued on 12.09.2015 wherein it has been mentioned that the patient was having such problems 4 years back (deceased hearing from left ear progressive hearing loss alopecia). He further drew the attention of this Forum towards document Annexure R18 i.e. prescription slip issued by Dayanand Medical College & Hospital  issued on 04.09.2015 wherein it has been mentioned that the patient is suffering ear problem for the last 3-4 years.   

6.                Perusal of the case file reveals that for the first time the policy in question was obtained on 29.03.2012 and prior to the purchase of the insurance policy in question Insured was a patient of ear problem as mentioned in document Annexure R11 i.e. OPD slip of Medanta Global Health Pvt. Limited issued on 12.09.2015 wherein it has been mentioned that the patient was having such problems 4 years back (deceased hearing from left ear progressive hearing loss alopecia). He further drew the attention of this Forum towards document Annexure R18 i.e. prescription slip issued by Dayanand Medical College & Hospital  issued on 04.09.2015 wherein it has been mentioned that the patient is suffering ear problem for the last 3-4 years

7.                   It is a well settled proposition of law that a contract of insurance is based on the principle of utmost good faith – uberrimae fidei, applicable to both the parties.  The rule of non-disclosure 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 are within his personal knowledge or which he ought to have known had he made reasonable inquiries.  A contract of insurance, therefore, can be repudiated for non-disclosure of “material facts.”  On this point reliance can be taken from case law titled as M/s Kotak Mahindra Old Mutual Life Insurance Company Limited and others 2017 (4) CLT 84 wherein Hon’ble State Commission Haryana has held as under :

7.      In Mithoo Lal V. Life Insurance Corporation of India , AIR 1962 Supreme Court 814, Hon’ble Apex Court held as under:-

“Contract of life insurance entered into as a result of fraudulent suppression of material facts by policy holder- Policy is vitiated and person holding assignment of policy cannot claim benefit of contract………….”

8.      Hon’ble Apex Court in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. – (2000) 2 SCC 734 held as under:-

“It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and the good faith forbids either party from non-disclosure of the facts which the parties know.  ………..”

9.      In Revision Petition No.967 of 2008, Life Insurance Corporation of India versus Smt. Neelam Sharma, decided on September 30^th, 2014, Hon’ble National Commission observed as under:-

“8.       In Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (2009) 8 SCC 316, it has been observed by the Supreme Court that the expression “material fact” is to be understood in general terms to mean as any fact which would influence the judgment of a prudent Insurer, in deciding whether to accept the risk or not.  If the proposer has knowledge of such fact, he 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, which is based on the principle of utmost faith –uberrima fides.  Good faith forbids either party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. (See: United India Insurance Co. Ltd. Vs. M.K.J. Corporation [(1996) 6 SCC 428].  It has also been emphasized that it is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known.”

“11.     Having given our anxious consideration to the material on record, we are of the opinion that the answers given by the Insured in the proposal form were untrue to his knowledge. There was clear suppression of “material facts” in regard to the health of the Insured.  It was not for the Insured to determine whether the information sought for in the aforesaid questionnaire was material for the purpose of the two policies…..”  

In the present case the proposal form Annexure R2 has been filled up by the father of the insured Arjun Gupta wherein it has been mentioned that the insured is having no pre-existing disease. The proposer in the proposal form Annexure R2 has given the answer in negative as mentioned in column (1) J with regard to disease such as disorder of ear/nose/throat.

7.                          In view of the position as discussed above, it is well proved that son of the complainant was having pre-existing disease before the inception of the policy in and the policy in question has been obtained by misrepresenting the material fact qua the health status form the insurance company and the repudiation made by is justified. Therefore, the present complaint is without any merit and the same is accordingly dismissed leaving the parties to bear their own costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.

ANNOUNCED ON:      12.02.2018

                                               

(PUSHPENDER KUMAR)     (ANAMIKA GUPTA)      (D.N.ARORA)                      MEMBER                  MEMBER               PRESIDENT