DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 57 of 2015
Date of filing: 23.02.2015 Date of disposal: 26.8.2015
Complainant: Mr. Mohan Mondal, S/o. Late Gopal Mondal, resident of Naba Waria, Opp. of Piyali Kali Bari, Durgapur, District: Burdwan, PIN – 713 208.
-V E R S U S-
Opposite Party: 1. Star Health & Allied Insurance Company Ltd., having its Registered Office at: 1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai – 600 034, represented through its Chairman.
2. Star Health & Allied Insurance Company Ltd., having its Branch Office at Durgapur SM-10, Ambedkar Sarani, City Centre, Durgapur, District: Burdwan, PIN No. 713 216, represented through its Branch Manager.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party (s): Ld. Advocate, Ahi Bhushan De.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as the Ops have arbitrarily repudiated his legitimate insurance claim on false pretext.
The brief fact of the case of the complainant is that he obtained one Medi Classic Health Insurance Policy (Individual) issued by the OP-2 for the period from 06.8.2012 to 05.8.2013 and accordingly paid Rs. 12,023=00 to the Ops towards the total premium. The maximum limit of the sum assured of the policy was of Rs. 5, 00,000=00. Before inception of the policy the complainant was medically checked up by the medical team of the Ops and the doctor certified medical fitness of him and thereafter the said policy was issued by the Ops. The policy was renewed for the period from 06.8.2013 to 05.8.2014 and he paid Rs. 15,230=00 towards policy premium. All on a sudden the complainant became seriously ill and suffered from certain abdominal pain the last week of December 2013 within the validity of the said policy. He went to Vivekananda Hospital Pvt. Ltd., Durgapur on 26.12.2013 for treatment wherein he was examined and advised for certain medical tests. He was directed to approach before the said hospital with all medical reports. Accordingly he had done all the medical tests as prescribed by the concerned doctor and went there with all medical reports. Upon examining the same on 30.12.2013 the doctor certified that the complainant was suffering from Cholecystectomy and therefore needed to undergo an operation. Upon hearing the same the complainant became mentally perplexed and for better treatment he went to the Apollo Gleneagles Hospital, Kolkata wherein he was treated under Dr. Joydip Bhadra Ray. The said doctor examined him and perused all the medical reports and advised for operation of Laparotopic Cholecystectomy /Gall-Bladder to avoid further complication and advised him to get admission in the said hospital. The complainant got admission at the Apollo Gleneagles on 17.01.2014 under the treatment of Dr. Joydip Bhadra Ray and 18.01.2014 Laparotopic Cholecystectomy was performed and the complainant got discharge from there on 20.01.2014. Due to such treatment the complainant had to incur the medical expenses to the tune of Rs. 97,126=00 in both the hospitals. The complainant intimated the said fact to the Ops on the last week of January 2014 and requested them to issue the claim form for further correspondences. Upon receipt the intimation letter the Ops have remitted the claim form to the complainant and thereafter the complainant after observing with all formalities submitted the same along with relevant papers and documents to the Op-2 for settlement of the claim. Upon receipt of the claim form along with documents the Ops sent a letter dated 28.3.2014 to the complainant requesting to submit additional documents i.e. copy of indoor test papers and previous brain surgery details along with discharge summary to enable them for processing the claim. Though the previous medical documents of brain surgery were not required to process the instant claim but the complainant on good faith and honest mind submitted all the documents as per requirements of the Ops on 16.4.2014 and requested to release the claim amount as early as possible. But very surprisingly the OP-1 illegally and with ulterior motive repudiated the claim of the complainant on 23.4.2014 on the ground that as per discharge summary of AMRI Hospital for the period from 01.12.2010 to 15.12.2010 the insured patient had undergone surgery for aneurysm in December 2010, which are prior to inception of the instant insurance policy and the complainant being the proposer did not disclose the aforesaid medical history/health details, which amounts to misrepresentation /non-disclosure of material facts and so the Op is not liable to make any payment in respect of any claim and the policy is liable to be cancelled. Upon receipt of the repudiation letter dated 23.4.2014 the complainant requested the Ops for perusal of all the medical documents in detail because from the discharge summary issued by AMRI Hospital it is very much clear that he had to undergo surgery for aneurysm which is a neurosurgery and on the other hand during existence of the instant policy he underwent an operation of Gall-Bladder which is completely different from the previous one and there is no connection by and between the two operations. So there is no question of pre-existing disease as well as suppression of any material fact by the complainant in the proposal form as alleged by the Ops. Therefore the ground of repudiation of the claim of the complainant are vague, illegal, arbitrary and beyond the provision of law. It is also to be noted that the complainant had proved his honesty by sending all the medical documents of the previous operation of neurosurgery to the Ops and if he suppressed the previous operation of neurosurgery, then he would not sent those documents to the Ops. So there is no question of suppression of any material facts on behalf of him. Inspite of this the Ops without perusing all the medical documents and without considering the request of the complainant have repudiated the claim of him which amounts to deficiency in service as well as unfair trade practice on the part of the Ops. Thereafter the complainant again requested the Ops on several occasions to look into the matter and consider the claim but to no effect and the Ops did not pay any heed to his request, which reveals their deficiency in service, rather the Ops sent a cancellation noticed dated 30.4.2014 stating that a cheque for refund of premium calculate on prorate basis will be sent shortly to him and consequently the Ops sent a letter dated 30.5.2014 cancelling the policy due to non-disclosure of pre-existing disease along with a demand draft dated 30.5.2014 amounting to Rs. 2,420=00. Thereafter finding no other alternative the complainant had approached before this ld. Forum by filing this complaint praying for direction upon the Ops to pay a sum of Rs. 97,126=00 towards his medical expenses as incurred before two hospitals, Rs. 75,000=00 as compensation due to mental pain, agony and harassment and litigation cost of Rs. 25,000=00.
The petition of complaint have been contested by the Ops by filing conjoint written version wherein it is stated that admittedly the complainant purchased the mediclaim policy from them and the sum assured was of Rs. 5, 00,000=00 which was valid for the period from 06.8.2012 to 05.8.2013 for first year and also for sum assured of Rs. 5, 00,000=00 for the period from 06.8.2013 to 05.8.2014 for the second year. The alleged claim was in the second year of the said policy. The Ops have duly perused the claim records send by the complainant seeking reimbursement of medical expenses for the treatment of cholelithiasis and hypertension at Apollo Gleneagles Hospital, Kolkata on 17.01.2014. On security of the claim record it was found that as per the treatment summary of AMRI Hospital dated 01.12.2010 the insured was diagnosed a Sub Arachnoid Hemorrhage with ACOM Saccular Aneurysm and a known case of Hypertensive on Medication. The consultation report of Vivekananda Hospital dated 26.12.2013 and Apollo Hospital, Kolkata dated 10.01.2014 & 15.01.2014 reveal that the insured had undergone Aneurysm surgery on 2010 and had a history of Hypertension, Diabetes Mellitus, T. B. and Asthma. It is also found from the letter dated 16.4.2014 of the insured issued to the OP-1 that he is suffering from Hypertension approximately for last 5 years and it is also appears from the discharge summary, which is prior to the inception of said mediclaim policy dated 06.8.2012. At the time of inception of first policy for the year 2013 the complainant did not disclose the above-mentioned medical history/health details of him in the proposal form, which amounts to misrepresentation/non-disclosure of material facts. Such non-disclosure of the past medical history of the insured in the proposal form during inception of the policy on 06.8.2012, tantamount to non-disclosure of the material facts. As per Condition no. 7 of the policy if there is any misrepresentation – non-disclosure of material facts, whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim. For this reason the claim of the complainant was duly repudiated by these Ops and the same was communicated to him by issuing letter dated 23.4.2014 accordingly. It is further mentioned by the Ops that the policy of insured is based on details furnished by the insured in the proposal form/renewal instruction and the medical examination report, if medical examination has been done. The said insurance policy has various exclusion clauses i.e. pre-existing disease which has been defined in the terms and the condition of the policy. If there is suppression of any material fact the contact shall become void and nothing is payable to the insured. As the insured intentionally suppressed the material fact in the proposal form his claim has been rightly repudiated and this complaint is also liable to be summarily dismissed because the complaint of the complainant is not at all tenable. According to these Ops this complaint is misconceived and vexatious one as there was no deficiency in service as well as unfair trade practice on behalf of the Ops, the complainant is not entitled to get any relief from them through this ld. Forum. Accordingly prayer has been made by the Ops for dismissal of the complaint with exemplary cost.
The complainant has filed evidence on affidavit along with several documents in support of his contention. The Ops have filed written notes of argument along with several documents by way of ‘firisti’ and the ld. Counsel for the complainant has relied on a Ruling in support of his argument.
We have carefully perused the record, documents filed by the contesting parties and the Ruling as relied on by the complainant. It is seen by us that there are some admitted facts in the instant case i.e. the complainant purchased one Medi Classic Health Insurance Policy (Individual) from the OP-2 in the year 2012, the said policy was valid for the period from 06.8.2012 to 05.8.2013, the complainant paid due premium amount for the said period, the policy was renewed for the period from 06.8.2013 to 05.8.2014, due premium amount was also paid, sum assured was of Rs. 5,00,000=00, during validity of the said policy the complainant became ill as he was suffering from abdominal pain in the last week of December 2013, he went to the Vivekananda Hospital, Durgapur on 26.12.2013, he was examined by the concerned doctor and advised for certain medical tests, after completion of such tests he again went at the said hospital, the concerned doctor upon perusal of all the medical reports on 30.12.2013 certified that the complaint was suffering from Cholecystectomy and he was advised for operation, for better treatment the complainant went to the Apollo Gleneagles, Kolkata and got admission under Dr. J.B. Ray, the said doctor also upon perusal of the medical reports advised for operation Laparotopic Cholecystectomy /Gall-Bladder, operation as done on 17.1.2014, the complainant got discharge from there on 20.01.2014 and due to such medical treatment the complainant had to incur Rs. 97,126=00 towards medical expenses in both the hospitals. Further admitted fact is that the Ops was intimate by the complainant on the last week of January 2014, claim form issued by the Ops, claim form submitted along with necessary papers and documents, request was made by the complainant for settlement of the claim, upon receipt of the claim form the complainant was further directed by the Ops to submit additional documents i.e. copy of indoor case record and previous brain surgery detail along with discharge summary to enable to processing the claim, the said papers was transmitted to the Ops by the complainant, the claim was repudiated by the OP-1 and the same was duly intimated to the insured by issuing repudiation letter on 23.4.2014, in the repudiation letter the cause of repudiation was stated by the OP-1 is as the complainant did not disclose the earlier brain operation/surgery under the column of his state of health properly, the claim has been repudiated, thereafter the complainant made several requests verbally as well as in writing, the Ops did not alter their opinion. The allegation of the complainant is that inspite of payment of due premium in respect of the mediclaim policy the Ops have illegally and arbitrarily repudiated his legitimate insurance claim on false pretext because there is no indirect or direct connection by and between the earlier brain surgery and the present Laparotopic Cholecystectomy. According to the complainant such repudiation is an example of unfair trade practice as well as deficiency in service on the part of the Ops and as his grievance has not yet been redressed he had to file this complaint before this ld. Forum praying for certain reliefs. On the contrary, the case of the Ops is that as in the proposal form the complainant did not disclose the material fact and concealed actual state of his health, the claim has rightly been repudiated and in this respect there is no deficiency in service as well as unfair trade practice on behalf of the Ops. Further argument of the Ops is that they have acted as per the terms and the conditions of the policy wherein it is clearly stated that in case of misstatement/misrepresentation the claim will be repudiated and policy will be vitiated. Prayer has been made by the Ops for dismissal of the complaint with cost.
During hearing the ld. Counsel for the complainant has argued that it is necessary to look into whether there was any material suppression of fact or the same was done fraudulently or not by the complainant in the proposal form at the time of inception of the policy. It is seen that the complainant obtained the questioned policy in the year 2012 and the same was renewed in the next year also for the period from 06.8.2013 to 05.8.2014. We have perused the proposal form as submitted by the insured during taking out the policy and it is seen by us that the proposer had mentioned his state of health as good. We have also noticed that prior to inception of the instant policy the complainant underwent brain surgery for Aneurism in the year 2010 and on that occasion he had to stay at AMRI Hospital for the period from 01.12.2010 to 15.12.2010. Admittedly the said fact had not been disclosed by the complainant in the proposal form during inception of his policy and it became the main cause for repudiation of the claim of the complainant by the Ops taking the plea that as the complainant had made misstatement /misrepresentation fraudulently, the claim cannot be payable as per terms and conditions of the policy and the policy will be vitiated as per the contract. The ld. Counsel for the complainant has further submitted that brain surgery for Aneurism cannot be regarded as material fact which the complainant was under compulsion to disclose the same in the proposal form because there is no nexus by and between the earlier surgery and the present surgery for which the claim has been lodged with the Ops. The ld. Counsel for the Ops has stated that though the complainant did not disclose his state of health along with brain surgery in the proposal form, but later on request, the same was transmitted to them for processing of the present claim and from the said document it was evident that the insured not only concealed the episode of brain surgery for Aneurism, he was also suffering from Hypertension for which he was on medication, the same was also suppressed by the complainant in the proposal form. If the complainant disclosed the same the Insurance Company had the opportunity either not to issue any policy in favour of the complainant or fix much premium amount in respect of the policy. Through such concealment of facts, as the complainant has violated the terms and the conditions of the policy, he is not entitled to get any amount towards medical expenditure as prayed for.
During argument the ld. Counsel for the complainant has argued that the insurance claim of the complainant has been repudiated by the Ops by issuing repudiation letter dated 30.4.2014 based on the terms and the Conditions no. 7 of the concerned policy wherein it is stated that the Company shall not be liable to make any payment under the policy in respect of any claim if such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the insured person or by any other person acting on his behalf. The ld. Counsel for the complainant has further submitted that admittedly the complainant did not declare the details of underwent surgery for aneurism during December 2010 which were found to be existing at the time of taking the policy for the first time and for the period from 06.8.2012 to 05.8.2013. But the same was not declared by him by adopting any fraudulent manner or device. Therefore, the company cannot repudiate his claim based on the terms and the Conditions no. 7 of the policy. On the contrary, the ld. Counsel for the Ops has argued that the company may cancel the policy on the ground of misrepresentation, fraud and non-disclosure of material fact or non-cooperation by the insured person. In respect of such argument the ld. Counsel for the complainant has stated that the non-disclosure fact in this case is not at all material because there is no nexus by and between the earlier operation and this operation for which the claim has been lodged. In this respect the complainant has relied on Section 45 of the Insurance Act, as well as, on judgment passed by the Hon’ble NCDRC in the RP No. 2049/2000 in the case of Smt. Santosh Kanwar Vs. LICI, dated 09.9.2008. We have very carefully gone through the said judgment and it is seen by us that the Hon’ble NCDRC after considering several landmark judgments of this land has passed this judgment, i.e. Smt. Dipashri Vs. LICI & Ors. (AIR 1985 Bombay 192), LICI & Ors. Vs. Smt. Asha Goel & Anr.([2001) 2 SCC 160, P.C. Chako & Anr. Vs. Chairman LICI & Ors. (2008) 1 SCC 321, Mithoolal Naik Vs. LICI (AIR 1962 SC 814), Asha Garg Vs. United Insurance Co. Ltd. (Original Petition No. 164/2001 decided on 24.11.2005), RP No. 3362/2001 [LICI Vs. Smt. Ayesha] decided on 25.10.2005, RP No. 1935/1999 [LICI Vs. Kishan Chander Sharma] decided on 23.01.2006, RP No. 2183/2004 [Subodh Chandra Shivlal Shah Vs. Bhartiya Jeewan Bima Nigam] decided on 29.3.2006, LICI Vs. Smt. Shobhadevi Sundar Lal Patni (FA Nos. 421/1993 and 391/1994) decided on 26.4.1996. The ld. Counsel for the complainant has mentioned Section 45 of the Insurance Act, 1938 which reads as under:
45 ‘Policy not to be called in question on ground of misstatement after two years.
No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which its was material to disclose.………………………………………………………………………………………………………………………………………………………………………………………….
Section 45 postulates repudiation of such policy within a period of two years. By reason of the aforementioned provision a period of limitation of two years had, thus, being specified and on the expiry thereof the policy was not capable on being called in question, inter alia, on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder known at the time of making it that the statement was false. Statute, therefore, itself provides for the limitation for valid repudiation of an insurance policy. It takes into account the social security aspect of the matter.
There are three conditions for application of second part of Section 45 of the Insurance Act which are:-
- the statement must be on a material matter or must suppress facts which it was material to disclose,
- the suppression must be fraudulently made by the policy holder, and
- 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.
After considering the Section 45 of the Insurance Act, 1938 entirely as well as its three conditions it is seen by us that admittedly the claim was lodged by the complainant within two years from the inception of the said policy. Therefore, no plea can be taken by the complainant that due to misstatement or misrepresentation whatever it may be the company is not entitled to vitiate the policy repudiating his claim. So in view of the said portion of Section 45 company is very much empowered to vitiate any policy along with repudiate any claim if misstatement is given by the insured adopting fraudulent means of device. Therefore, we are to see that in the case in hand as to whether the complainant did not disclose the fact of the brain surgery for aneurism in the proposal form fraudulently or supported by any fraudulent means or device or any misrepresentation as given by him or not. In our view if such concealment of fact was made by the complainant fraudulently then the complainant did not remit his entire medical papers and documents relating to his brain surgery to the Insurance Company on request. Moreover, where the complainant asserts that such non-disclosure was not made by adopting any fraudulent means then liability casts upon the Insurance Company that the complainant concealed the fact of his brain surgery in the proposal form fraudulently or supported by any fraudulent means or device. It is well settled principle that prima facie liability casts upon the complainant who asserts the complaint and if the complainant has discharged his liability on full satisfaction then liability goes to the shoulder of the Ops to prove with cogent documentary evidence that the statement made out in the complaint is false and the documents on which the complainant is relying the same are also false and vague. In the case in hand the Ops has failed to discharge its liability but at the same breath in our view the complainant has successfully satisfied us by producing cogent document that he did not disclose the episode of the brain surgery in the proposal form at the time of taking out the policy by adopting any fraudulent means. The judgment on which the complainant has relied on in that case also the insured was suffering from several diseases before taking out of the policy i.e. upper respiratory infection, tenderness or pain in muscles, vascular reaction on the skin etc., not only that the complainant provided incorrect answer in respect of specific question put to her but the detailed history of those diseases and the treatment taken as well as leave taken from her place of work did not disclose by the insured in the proposal form at the time of taking the policy. Inspite of this the Hon’ble NCDRC was pleased to allow the petition of the complainant relying on several landmark judgments of this land as aforementioned. The Ops did not contradict this judgment/Ruling by producing any further Ruling and therefore we can easily allow this complaint based on the said Ruling because the facts and circumstances of the instant complaint are almost same and identical with the relied case and hence in our view the relied case is applicable in the instant complaint.
The aliment/surgery which has not disclosed in the proposal form by the complainant and for which the claim was repudiated by the Ops has no connection with the instant claim cropped up from cholelithiasis. In our view there is no iota of evidence on behalf of the Ops that due to prior surgery the instant disease cropped up and the complainant was operated upon. Ld. Counsel for the Ops has further submitted that the complainant had also concealed that he was suffering from hypertension and used to take medicine for last five years. From the discharge summary dated 20.01.2013 issued by Apollo Gleneagles it is evident that during the operation for removal of gall-bladder the complainant was diagnosed as cholelithiasis and hypertension, but the complainant was not treated for hypertension and he did not get admission in the said hospital for hypertension and moreover no medicine was prescribed by Apollo Gleneagles in the discharge summary for hypertension. Therefore, it was not at all material fact for the complainant to disclose the hypertension in the proposal form. There are several judgments passed by the Hon’ble upper courts that hypertension is not a disease, it is a symptom.
In the para 9 of the complaint it is stated by the complainant that the Ops have sent a cancellation notice dated 30.4.2014 and stated that the cheque for refund of premium calculated on prorate basis will be sent shortly to him and consequently the Ops sent a letter dated 30.5.2014 cancelling the policy due to non-disclosure of pre-existing disease along with a demand draft amounting to Rs. 2,420=00 to him. This averment has been accepted by the Ops in their Written Version as well as the Written Notes of Argument and the complainant has successfully proved his averment by producing cogent documentary evidence. In this connection we are of the view that where in the instant case non-disclosure of the brain surgery for aneurism in 2010 was not at all material to disclose the same in the proposal form for taking out the policy by the complainant and moreover where the same was done by the complainant not by adopting any fraudulent manner, hence the Insurance Company cannot declare the instant policy vitiated. So the Insurance Company is not entitled to refund the premium amount to the complainant after cancelling the insurance policy. Such action of the Insurance Company can be termed deficiency in service. Therefore the complainant is at liberty to renew his policy after taking payment of due premium amount as per the terms and the conditions of the policy if he inclines to continue with the policy at all. The complainant has prayed for compensation and litigation cost from the Ops as he had to face unnecessary harassment and mental agony due to arbitrary repudiation of his legitimate insurance claim and ultimately approached before the court of law for redressal of his grievance. In this way he had to incur some expenses for such unnecessary litigation. Upon considering such prayer in our view the complainant is entitled to get compensation and litigation cost from the Ops.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost against the Ops. The Ops are hereby directed to pay Rs. 97,126=00 to the complainant towards medical expenses as incurred for his treatment within 45 days from the date of passing of this judgment, in default, it will carry penal interest @8% per annum for the default period. The Ops are also directed to pay Rs. 3,000=00 as compensation due to unnecessary harassment and mental agony and Rs. 1,000=00 as litigation cost to the complainant within 45 days from the date of passing of this judgment. The Ops are also directed to continue the policy if the complainant is interested to continue with the same subject to payment of due premium by the complainant, but in no way the Ops will be entitled to demand premium amount along with interest & penalty as the complainant did not choose not to continue with the same, in default, the complainant will be at liberty to put the entire decree in execution as per provisions of law.
Let a plain copy of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
policy continuation with due premium.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
