Samaresh Kumar Mitra, Presiding Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant took a policy by paying premium named as “Family Health Optima Insurance-2017” being policy no. P/191120/01/2018/013685 and the policy was valid from 27.03.2018 to 26.03.2019 (but the said policy was expired with no claim) issued from the office of the opposite party no. 1 through the agent covering risk of the complainant and his wife and on 9.5.2018 at about 6:00 p.m. the wife of the complainant was stepping down from the down stairs on the first floor and she suddenly fell down and received severe injuries on the right leg and then she was taken for X-ray and the doctor opined that her right leg’s knee was fractured and thereafter she was admitted in Peerless Hospital & Research Centre Ltd. Kolkata on 11.5.2018 and operation was done on 15.5.2018 incurred expenses of Rs. 1,72,000/- and discharged on 19.5.2018 and the said incident was informed to the office of the opposite party no. 1 on 16.5.2018. Due to coverage of the policy, the complainant submitted a claim form before the office of the opposite party no. 1 being claim no. CLI/2019/191120/0080414 but the opposite party no. 2’s office sent a letter to the complainant on 5.7.2018 and 10.7.2018 repudiating the claim as “suppression of material facts” but the complainant requested to the opposite party no.1’s office by a letter to consider the matter as the said incident had no nexus relation with the earlier incident but they did not pay any heed to that matter.
Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs.1,72,000/- for medical expenses and to pay a sum of Rs. 50,000/- towards pain and suffering for non settlement of the said claim and to pay a sum of Rs. 20,000/- for the litigation cost.
The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them. These opposite parties submits that the proposal Form being number AA4865141dt. 17/03/2017 only after due satisfaction and understanding agreed to accept the Policy being fully aware of such terms and conditions, therefore, the Policy being contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy, the opposite party no. 1 also states that Mrs. Sima Paul was hospitalized at Peerless Hospital and Research Centre Limited, Kolkata on 11/05/2018 for the treatment of Closed Patella Fracture (Right) with no DNVD & Diabetes Mellitus and submitted a request for Pre authorization for cashless treatment o 18/05/2018 and the same was denied vide letter dated 19/05/2008.
These opposite parties also states that the Discharge Summary dated 19/05/2018 clearly shows that the patient has chronic, long standing disease prior to the inception of the policy which was not disclosed at the time of policy inception (Policy Inception period 27/03/2017 to 26/03/2018).
These opposite parties also states that as per Condition No. 6 of the policy clearly states that the Company shall not be liable to make any payment under the policy in respect of any claim if information furnished at the time of proposal is found to be incorrect or false or 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.
These opposite parties also states that with the condition 12 and issued 30 days prior, notice for cancellation on 10/07/2018 and the policy in respect of Mrs. SIMA PAUL stands cancelled with effect from 19/08/2018 due to non disclosure of Pre-Existing Disease.
These opposite parties submitted that the insured patient, Mrs. SIMA PAUL was hospitalized at Peerless Hospital and Research Centre Limited, Kolkata on 11/05/2018 for the period from 11/05/2018 to 19/05/2018 and subsequently after discharge the insured submitted a claim for reimbursement of medical expenses on 22/06/2018 which was registered by the answering respondent vide claim no. CLI/2019/191120/0080414 for an amount of Rs.1,72,000/- for reimbursement for the expenses incurred in the treatment at the Peerless Hospital Research Centre Ltd., Kolkata for the period from 11/05/2018 to 19/05/2018.
These opposite parties also further states that the patient Mrs. SIMA PAUL was not a minor and as such he/she shared her own past medical symptom/history with her treating Doctor at the said Hospital about the fact that insured-patient was suffering from “Pulmonary Embolism, Bilateral Pleural effusion and DVT (Deep Vein Thrombosis) since October, 2016 and is on ACITROM (4MG) Drug continuously which clearly appears to have been deliberately concealed by the insured- patient at the time of filling the proposal form.
It is a general practice within the medical parlance that the line of treatment depends upon sharing of past medical symptom/ history of the patient, the insured patient herein with his/her treating doctor and in the present case the complainant shared her own past medical symptom/ history with her treating doctor at the said hospital about the fact that insured patient was suffering from “Pulmonary Embolism, Bilateral Pleural effusion and DVT (Deep Vein Thrombosis) since October 2016 and is on ACITROM (4mg) drug continuously which clearly appears to have been deliberately concealed by the insured patient at the time of filing the proposal form and it is important to mention here that the main spirit and object of insurance is to meet the risk of uncertainty of the insured by the insurer during the term of the policy and the complainant is not at all entitled to any of the relief as prayed for and the policy issued to the complainant under which the dispute has been raised is governed by the limits of liability as per various clauses and the rights and liabilities of both insured and insurer are strictly governed by policy of insurance and the complainant failed to establish any exact cause of action and/ or deficiency of service by the answering opposite party backed by evidences which is also a pre-condition in cases misrepresentation and non disclosure of material facts as laid down time and again by NCDRC and the Hon’ble Supreme Court from time to time and therefore the Ld. Court may be pleased to reject this complaint petition and pass any such order/ orders as deem fit and proper.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief or not?
DECISION WITH REASONS
All the points are taken together for easiness of the discussions of this case.
-
2).Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding 20,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3). Complainant in his written argument averred that he took an insurance policy namely, “Family Health Optima Insurance, 2017” valid from 27.03.2018 to 26.03.2019 issued from the office of the opposite party no. 1, covering the risk of this complainant and his wife. That on 9.5.2018 the wife of the complainant namely, Sima Pal suddenly fell down on the downstairs and received severe injuries on her right leg. She was taken to Kolkata before the doctor Chandra Shekar Kundu who opined that her right leg’s knee was fractured and thereafter she was admitted in Peerless Hospital and research center on 11.5.2018 and operation was done on 15.5.2018 and she was discharged on 19.5.2018. Complainant informed this incident to the opposite party no. 1 on 16.5.2018. Total expenditure incurred for this treatment is Rs. 1,72,000/- then the complainant submitted a claim before the opposite party no. 1 but the opposite party no. 2 sent two letters to this complainant dt. 5.7.2018 and 10.7.2018 repudiating the claim as suppression of material fact. Complainant further submits that before taking the present policy in the year 2016 once the complainant’s wife Sima Pal fell down from the bolder at Puri Sea beach and her right leg has been fractured and hospitalized at Howrah People Hospital for four days, the treating doctor diagnosed that the said case was Pulmonary Embolism. The said fracture was completely cured and she entered into a normal life. So, there is no question of continuing the said disease and there is also no question of mentioning the same in the proposal form of the later policy. According to this complaint the opposite parties in a clandestine manner to avoid their liability and to pay the risk coverage repudiated the claim of the complainant which is deficiency in service and unfair trade practice under Sections of Consumer Protection Act, 1986. Complainant by citing the case decision on Consumer Protection Act, part III, 2019 page 22 (NC), Insured was subsequently diagnosed with Pulmonary Embolism in the year 2016, it cannot be said that insured concealed her disease while filling the Proposal Form. So the opposite party insurance company failed to prove that the disease was pre-existing disease and was willfully concealed and the repudiation was not justified. Simply writing Pulmonary Embolism disease is not sufficient until any previous report of doctors is not placed on the file. The opposite parties are not able to bring any medical report/ treatment on the file brought by the complainant’s wife from any hospital before the date of purchase of the policy dt. 27.3.2018 to 26.3.2019 wherein the said hospital has reported that the complainant’s wife is having any chronic pulmonary embolism disease. The complainant referred another case decision of Hon’ble National Commission in CPJ 2019 vol. III, page no. 1 (NC) nothing on record that doctor has earlier examined and treated complainant’s wife for Pulmonary Embolism disease in the year 2016 – suspicious medical certificate was issued- it prima facie amounts to professional misconduct under the Code of Medical Ethics of Resolution, 2002 of Medical Council of India. Medical records of Peerless Hospital and Research Center Ltd. Kolkata does not explicitly and categorically confirmed that the complainant’s wife was having Pulmonary Embolism disease prior to this policy- act of Insurer in using suspicious certificate to repudiate claim is unfair and defective act and amounts to Unfair Trade Practice. Lastly the complainant assailed that the history of Pulmonary Embolism disease and DVT October, 2016 operative fixation of late Proximal Trivial Fracture has no nexus relation with the said diagnosis by the Peerless Hospital and Research Center, Kolkata as the repudiation of claim is unfair trade practice and deficiency of service.
Opposite Parties in their argument submits that the proposal Form being number AA4865141 dt.17/03/2017 only after due satisfaction and understanding. Therefore, the Policy being contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy, the opposite party no. 1 also states that Mrs. Sima Paul was hospitalized at Peerless Hospital and Research Centre Limited, Kolkata on 11/05/2018 for the treatment of Closed Patella Fracture (Right) with no DNVD & Diabetes Mellitus and submitted a request for Pre authorization for cashless treatment 18/05/2018 and the same was denied vide letter dated 19/05/2008.
These opposite parties also states that as per Condition No.6 of the policy clearly states that the Company shall not be liable to make any payment under the policy in respect of any claim if information furnished at the time of proposal is found to be incorrect or false or 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.
These opposite parties also states that with the condition 12 and issued 30 days prior, notice for cancellation on 10/07/2018 and the policy in respect of Mrs. SIMA PAUL stands cancelled with effect from 19/08/2018 due to non disclosure of Pre-Existing Disease.
These opposite parties submitted that the insured patient, Mrs. SIMA PAUL was hospitalized at Peerless Hospital and Research Centre Limited, Kolkata on 11/05/2018 for the period from 11/05/2018 to 19/05/2018 and subsequently after discharge the insured submitted a claim for reimbursement of medical expenses on 22/06/2018 which was registered by the answering respondent vide claim no. CLI/2019/191120/0080414 for an amount of Rs.1,72,000/- for reimbursement for the expenses incurred in the treatment at the Peerless Hospital Research Centre Ltd., Kolkata for the period from 11/05/2018 to 19/05/2018.
In the present case the wife of the complainant shared her own past medical symptom/ history with her treating doctor at the said hospital about the fact that insured patient was suffering from “Pulmonary Embolism, Bilateral Pleural effusion and DVT (Deep Vein Thrombosis) since October 2016 and is on ACITROM (4mg) drug continuously which clearly appears to have been deliberately concealed by the insured patient at the time of filing the proposal form. The opposite parties may invoke the condition 12 of the governing policy which states that the Company may cancel this policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material facts as declared in the proposal Form and/or claim form at the time of claim and non co-operation of the insured by sending the insured 30 days notice by regd. letter.
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the Opposite Party Insurance Company is unquestionable and that is why the husband of the complainant insured his life before the said company without any doubt.
It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure 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 is within his/her 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.
The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (SC),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and 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.
That the observation of the Apex court in Satwant Kaur’s case as :- “thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. 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. The obligation to disclose necessarily depends upon the knowledge one possesses.”
On the face of the case record it appears that the claim of the complainant was repudiated by the OP No.1 on the ground that she was suffering from pre existing disease and the life assured suppressed her suffering in the policy Form so it is breach of terms and condition on the part of the complainant. Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring treatment/operation. In the instant case the opposite party could not file any previous prescription of any doctor prior to taking out insurance policy that the life assured borne any symptoms or sickness relating to her disease.
Had she has been suffering from leg fracture prior to acceptance of policy then what was her problem to receive treatment from the date of fracture. No one would like to remain without treatment when she has sufficient funds to take treatment. From the document it is clear that the wife of the complainant suffered left leg injury in the 2016 after getting treatment she became fit. So there is no question of suffering till 2018. It is transparent from the case record and documents that the wife of the complainant suffered from orthopedic problem in the year 2016 and after receiving treatment she became cure. So we do not find any reason why the opposite party used the leg injury in the year,2016 as pre-existing disease to repudiate the claim of the complainant. The act/omission on the part of the opposite party not only deficiency in service but also unfair trade practice.
During the period of argument the advocate on behalf of the opposite party assailed that the policy holder undergo treatment of fracture in her left leg and was under the treatment of a Orthopedic Surgeon before the acceptance of policy of opposite party. It does not mean that the fracture of left leg leads to knee injury year, 2018. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the LA that she was suffering from left leg fracture occurred in the year,2016. There is no material to show that there was any earlier treatment in respect of any Pulmonary Embolism. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defence which has taken by the opposite party Company having no legs to stand it is rightly discarded by this Forum/ Commission.
No documents in respect of treatment of the complainant before the acceptance of Proposal Form are in the case record which corroborates that the complainant has been suffering from Pulmonary Embolism which leads to suffering from knee injury in the year, 2018. The Opposite Party failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form LA supplied the correct information regarding her health.
So the life assured was unaware of her disease of Pulmonary Embolism and her illness at the material point of time i.e. taking the insurance policy does not arise. She was not aware whether she will suffer from knee problem in the future and she has to make claim before the Insurance Company for which the Insurance Company by repudiating his/complainants claim destructed the myth of utmost on good faith.
Upon consideration of the evidence adduced by the parties, this Forum/ Commission observed that the Insurance Company had failed to bring on record any proof in support of their plea that the wife of the complainant was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the wife of the complainant was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of knee problem. Every person may suffer from normal diseases like acidity, fever, common cold and indigestion which does not lead to knee problem or Pulmonary Embolism. So by mentioning the earlier history in the discharge certificate of Peerless Hospital and Research Centre Limited, Kolkata have no relevancy of suffering in the knee problem in right leg in the year, 2018 only to evade the responsibility of paying the claim incurred for the treatment of the wife of the complainant i.e. insured. This should not be the intention of the organisation who has been established for the purposes of benefit of the public. This Forum/ Commission thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in repudiating the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.
We also carefully went through the judgment /citation submitted by the agent of the parties, i). Diwan Sunder Lal -vs- The Oriental Insurance Company Ltd & Anothers I (2009) CPJ 117 NC ii). Satwant Kaur Sandhu Vs. New India Assurance Company Limited (2009) 8 Supreme Court cases 316. iii). Hon’ble National Commission in CPJ 2019 vol. III, page no. 1 (NC).
We do not find suppression of any material fact by the insured in the proposal form and opposite party has committed deficiency in repudiating claim on flimsy grounds. So we are in a considered opinion to allow the complaint, as policy holders/ insured persons were not suffering from any disease when he signed the policy proposal of this Opposite Party Insurance Company and Opposite Party could not prove the same. We direct the Opposite Party Insurance Company i.e. the Opposite Party No.1 to pay the claim amounting to Rs.172,000/- against the policy being no. P/191120/01/2018/013685, a sum of Rs.20,000/- for mental pain, agony and harassment and another Rs.10,000/- for litigation cost.
4). Whether the complainant is entitled to get relief or not?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party is liable to pay the ordered amount.
ORDER
Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite party No.1 with a litigation cost of Rs.10,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1 is directed to pay the assured sum amounting to Rs.172,000/- to this complainant within 45 days from the date of order.
The Opposite Party No.1 is also directed to pay a sum of Rs.20,000/- as compensation to this complainant for mental pain, agony and harassment.
The Opposite Party No.1 is further directed to pay a sum of Rs.10,000/- for unfair trade practice in the account of Consumer Legal Aid Account.
In the event of failure to comply with the order the Opposite Party No.1 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
