Delhi

East Delhi

CC/118/2021

DEEPSHIKHA MISRA - Complainant(s)

Versus

TATA AIG GEN. INS. - Opp.Party(s)

21 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 118/2021

 

	Deepshikha Mishra W/o Late Dr. Anurag Misra R/o AK-1/98, AbhayKhand-I Indirapuram, Ghaziabad U.P. 21014	….Complainant
Versus
1	M/s Tata AIG General Insurance Co. Ltd. Peninsula Business Park, Tower-A, 15th Floor Ganpatrao Kadam Marg, Lower Tower Mumbai 400 013 Maharashtra   Also at : A-501, 5th Floor, Bldg No. 4, IT InfinityPark, Gen. A.K. Vaidya Marg, Dindoshi, Malad (East), Mumbai 400 097 Maharashtra   Also at : F-25, FF, Vikas Marg, Preet Vihar Near Preet Vihar Metro Station, Above KFC Restaurant, Delhi 110092	……OP1
2	M/s Tata Capital Financial Services Ltd. Peninsula Business Park, Tower-A, 11th Floor Ganpatrao Kadam Marg, Lower Tower Mumbai 400 013 Maharashtra   Also at : 7th Floor, Videocon Tower, Block-7E, Jhandewalan Extension, New Delhi 110055	……OP2

 

                                                         

 

Date of Institution: 19.3.2021

Judgment Reserved on: 16.3.2022

Judgment Passed on: 21.3.2022

                  

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order I shall dispose off present complaint filed by the Complainant against M/s Tata AIG General Insurance Co. Ltd. / OP1 & M/s Tata Capital Financial Services Ltd./ OP2 w.r.t. deficiency of service by declining and repudiating the claim of the complainant.
2. Brief facts as stated by the Complainant in nutshell are, that the Complainant’s husband Dr. Anurag Misra had purchased a medical insurance policy on 30.3.2019 named ‘Group Credit Secure Plus Plan’ of the OP1 through OP2 vide Policy bearing no. 235955201 for period of 05 years with effect from 30.03.2019 to 29.03.2024, for a sum of Rs. 1,40,00,000/- (Rupees One Crore Forty lacs only) and deceased husband of the complainant paid a sum of Rs.5,33,596/- as premium for the same, receipt of which was issued by Preet Vihar Branch of OP1. It is stated that prior to purchase of said policy the deceased husband of complainant had taken a home loan, bearing loan account no. 555 for sum of Rs. 1,40,00,000/- (Rupees One Crore Forty Lacs only) from OP2 on 10.02.2018. (appears to be incorrect date as date of Loan is 28.03.2019). It is further stated that however, instead of granting / sanctioning a  loan of Rs. 1,40,00,000/-, the OP2 sanctioned a loan of Rs.1,45,33,596  i.e. Rs. 5,33,596/- more than  the required amount which in fact was the premium of insurance policy, as purchased by complainant’s deceased  husband. OP2 also additionally charged a sum of Rs.1,71,496/- on account of processing  fee and Rs. 12980/- inclusive of GST towards technical and legal charges.
3. Prior to purchase of said policy the deceased husband of complainant was admitted in Max Super Specialty Hospital at Vaishali, Ghaziabad on 15.12.2018 with the complaint of “sudden Acute onset of Giddiness, Instability while Walking, Vomiting and Multiple Episodes of LOC” and he was discharged on 17.12.2018 with stable condition alongwith medical advice of certain prescription with follow up advise.
4. After approx. 10 months (not matching as per dates which comes about 13 months) of the date of purchase of said policy from OP1, the deceased husband of complainant was admitted at Kailash Hospital at NOIDA on 25.01.2020 at about 05.13 hours (perhaps morning) with the complaint of shock, breathlessness for last two days alongwith Pedal Ederna & Cellulitis in Lower Limbs. He was also gradually progressing skin Lessons (perhaps lesions) for last two months in lower limbs and feet. However, he was discharged as LAMA (Left Against Medical Advice) on same day being not satisfied with treatment there and then the Complainant was admitted to Max Super Specialty Hospital at Vaishali, Ghaziabad on 25.1.2020 at about 4:00 p.m. and was in the ICU. Since his condition was not improving the family member again requested the Hospital to discharge him as LAMA and although he was documentarily discharged on 26.01.2020 at 12:26 p.m  but on account of his physical condition he could not be shifted from ICU and remained admitted there in same hospital where he took his last breath at 8:40 p.m. on 27.1.2020.
5. The Death Summary issued by said Hospital mentioned the cause of his death as “Septicemia with Refractory Shock with MODS with AKI Etilogy Bilateral Pneumonitis/ ARDS”. The information of the death of the husband was given to OP1 with request to pay the amount of sum assured in the said policy i.e. Rs. 1.40 Crore, alongwith all the documents i.e. Death Certificate issued by Nagar Nigam,Ghaziabad on 14.07.2020. On further requirement complainant  submitted her claim in the ‘Claim Form’ provided by OP1 and again requested to process the claim on an emergent basis but despite having completed all the formalities and submitting all the documents,  the OP1 through one Dr. Vishal Sawant AVP-A & H intimated the sister-in-law of the complainant through e-mail that the claim of the complainant cannot be paid as there was no valid insurance / coverage policy on the ground that

“the insured did not declare the facts about his medical condition i.e. Diabetes, Mellitus, Hypertension, diabetic neuropathy and posterior circulation stroke with seizures at the time of proposing for this insurance and it amounts to non declaration of facts while applying the policy. In view of serious misrepresentation the policy stands cancelled ab initio in line with provisions of the cancellation clause under the policy”.

However, the sister in law of the complainant again wrote an email on 24.9.2020 thereby requesting and clarifying that deceased husband of complainant was not suffering from any critical illness as disclosed in the Enrolment/ Proposal Form signed at the time of purchase of said policy and he was performing all his duties as doctor and as such it was requested to OP1 to reconsider the death claim of Dr. Anurag Misra but again vide email dated 28.9.2020, Dr. Vishal Sawant AVP-A & H repudiated/declined the claim due to non disclosure of material facts in the Enrolment/ Proposal Form. It is further submitted that the said conclusion was drawn by the officials of OP1 on the basis of discharge summary issued by Max Hospital and treating doctor certificate, but actually it was due to misunderstanding of the said documents. The sister-in-law of complainant then asked OP1 to provide the copy of proposal form filled by deceased husband of complainant at the time of applying for the said policy so that exact reason for declining the claim on the basis on non-disclosure of material facts can be verified.

6. On providing the copy of proposal form and after going through the contents of the copy of the said proposal form, the complainant, with surety and certainty, submitted that only the signature on the said proposal form seems to be of the deceased husband of complainant but the writing in which the said proposal form was filled up is not of the deceased husband of complainant and further from the said form it is revealed that the deceased was not suffering with any of the critical illness as mentioned in the proposal form. Further, not only this, despite having issued policy of high value sum assured on Rs. 1,40,00,000/-, it was the duty of the OP to obtain the relevant test report qua sound health of the insured person at the time of issuance policy and if it had not been done by the OP then, now in this unfavorable/ uncomfortable situation of the complainant and surviving family members of deceased, rejection of the claim on the ground of non disclosure of previous medical treatment  is neither logical nor legal. It is further submitted that the rejection of claim is a result of malafide practice on the part of OP. Even otherwise the complainant had all the symptoms of having died with Covid 19 but actual cause of death of the husband of the complainant  could not be detected as no medical test had ever been conducted to ascertain the fact whether his death was due to corona or not. It is further reiterated that the act of rejecting the claim by OP1 is illegal and as such complainant  through her counsel issued the legal notice and since no heed was given, the present complaint was filed against the OPs with the prayer : -

1. To direct the OP1 to pay the entire amount of insurance policy i.e. Rs.1,40,00,000/- alongwith interest @12% p.a. from date of filing the complaint i.e. February, 2020 (complaint filed on 19.3.2021)till realization of payment.
2. To direct the OP1 to pay Rs. 10,00,000/- for compensation, harassment, mental tension, physical, social and financial harassment, pain, agony and frustration of the complainant.
3. To direct the OP1 to pay a sum of Rs. 1,50,000/- being the cost of legal proceedings.
4. To direct the OP2 not to take any coercive action against the property of the complainant in respect with the outstanding amount of the loan of the OP2 at least till the date of full and final disposal of present complaint of the complainant.
5. Any other relief deem fit and proper by this Commission.

7. OP1 filed its reply interalia stating that the deceased insured had not disclosed the past treatment and illness in the proposal form which amounts to misrepresentation and secondly the deceased was insured with respect to listed critical illness mentioned under section 1 and the cause of death as diagnosed by the hospital where he breathed last is not covered within the arena of the critical illness and as such insurance company has rightly repudiated the claim. It is further stated that there is no deficiency in service on the part of OP1 rather it has acted as per the Cancellation clause of the policy and in any case OP1 cannot be held liable for a claim with reference to the policy. Deceased husband of the complainant had filled up the proposal form for insurance policy and had answered Point no. 4 as under:

“1.     Have you or any of the person proposed for insurance ever suffered from or taken treatment or hospitalized for or have been recommended to take investigation, medication surgery or undergone surgery for any of the following critical medical conditions?

Insured had replied “NO”

2.      Are you or any of the persons proposed for insurance in good health?

Insured had replied “YES”

3.      Are you or any of the persons proposed for insurance undergoing/ awaiting any treatment for any illness?

Insured had replied “NO”

(Critical medical condition would mean Cancer, End Stage Renal Failure, Multiple Scolorosls, Major Organ Transplant, Rhoutralic Heart Disease CoronaryArtery Bypass Graft, Stroke, Paralysis, Myocardial Infection, Angina, Total Blindness, Croutztzloldl-jakob disease, Primary Pulmonary hypertension, Motor Neuron Disease with Permanent Symptoms, Progressive Scleroderea, Brain Tumor, Lung/Liver Failure)

 

8. As far as the issuance of policy namely “Group Credit Secure Plus” the same is not disputed but it reiterated that it is subject to terms & conditions, based on the information submitted by the deceased in the proposal form. The admission of the deceased/insured in Kailash Hospital on 25.01.2020, his discharge from that Hospital and admission in Max Super specialty Hospital, Ghaziabad on 26.01.2020 and his death on 27.01.2020 is not disputed, and it is submitted that the cause of death as mentioned in death summary was “Septicaemia with Refractory Shock with MODS with AKI Etiology bilateral Pneumonia/ARDS”. It is further submitted that the complainant i.e. wife of deceased has admitted that her deceased husband had earlier been admitted to Max Super-Specialty Hospital from 15.12.2018 to 17.12.18 and had been diagnosed with “Posterior Circulation Stroke with Seizure”. The complainant further admitted that the deceased husband was admitted in the Hospital on 15.12.218 with the complaints of “Sudden Acute onset of Giddiness, Instability while walking, vomiting and Multiple Episodes of LOC” and even Dr. Pathak of Max Healthcare in his certificate dated 18.02.2020 clearly stated that deceased was a known case of Diabetes Mellitus, Hypertension, Diabetic Neuropathy and undergoing treatment in the hospital on ‘Out-patient’ basis for the last two years, and since this fact was not disclosed by the insured while filling up of proposal form, Cancellation Clause (C) was considered wherein the said policy was liable to be cancelled as it specifically explained that if any misrepresentation, fraud, non-disclosure of material facts is found, then the policy shall stand cancelled ab-initio and there will be no refund of premium.
9. It is further reiterated that apart from ‘non disclosure of this material fact’ the deceased otherwise had not died on account of suffering from any listed critical illness which have been defined under section 1 of the Policy. In totality defence of OP1 is two fold i.e. firstly Dr. Anurag Misra did not disclose the material facts and secondly, his death is not on account of any ‘listed critical illness’ for which he was insured and since insurance is a contract of utmost good faith and insurance company has to indemnify the insured only on the basis of contract, the terms and conditions of policy have to be strictly adhered to, and as such neither there is any deficiency in service nor any unfair trade practice on the part of OP1 and it is stated that the claim of complainant has not been repudiated illegally. The fact that the complainant alleges that he only just put his signature on the blank form are denied and it is stated that in view of judgment, ‘Reliance Life Insurance Co . Ltd and ors. vs Rekhaben Nareshbhai Rathod, (2019)’ the complainant now cannot contend that her husband only signed the blank papers nor she can deny that filling of form was unintentional. It has also relied on All India General Insurance Co. Ltd. Vs. S.P. Maheshwari, AIR 1960 Mad 484, and keeping all these facts in view the contents of the medical policy and proposal form, it is reiterated that the complaint be dismissed.
10. OP2 also filed its reply taking preliminary objections that present complaint is gross abuse of the process of law and deserves an outright dismissal with exemplary costs for being vexatious, ill-motivated and bereft of any merit whatsoever at least against OP2.  OP2 has been arrayed deliberately where as in the entire complaint there is not even a single allegation/ averment with respect to any kind of negligence or deficiency in providing the service on the part of OP2. The complainant has made misconceived and baseless allegations without any documentary evidence in support of the allegations mentioned in the complaint. The loan in question which was obtained by deceased husband of the complainant does not fall within the definition of Consumer since the loan was obtained for commercial purpose. Also the complaint filed by the complainant does not fall within the definition of a ‘Consumer Dispute’ under the Act as there is neither any Unfair Trade Practice adopted by the OP2 nor any allegation of deficiency in service against OP2 has been stated and hence the complaint is liable to be rejected. Further, in its written statement, OP2 has stated that complainant is guilty of gross suppression of material information and furnishing false information. Complainant has also not made compliance by submitting mandatory certificate u/s 65B of the Indian Evidence Act in support of the electronic record. This commission otherwise doesn’t have pecuniary jurisdiction as the claim amount is of Rs. 1.40 Crore which is much beyond the pecuniary jurisdiction of this Commission, and above of all, the present complaint against OP2 is liable to be dismissed as OP2 has already initiated proceedings under SARFAESI Act against the loan  amount taken  by deceased husband and as such the complainant being barred by Section 34 of the SARFAESI Act, is liable to be dismissed. In support of this contention OP2 had relied upon the judgment of Hon'ble Delhi High Court  in the matter GVK Development Projects Pvt Ltd. & Anr Vs Power Finance Corporation Ltd. 2018 (Sec) SCC Online Del 9083 and also Jagdish Singh vs Heeralal & Ors (2014) 1 SCC 479. It is further submitted that complaint does not disclose any cause of action against OP2 and complainant in his complaint had not described any deficiency in service or unfair trade practice on the part of OP2.  It is also explained that contract in between the complainant and the OP2 was only to the extent that OPs had granted a loan to complainant’s husband and for that there is no deficiency in service alleged in the entire complaint. In further preliminary submissions, it is stated that the deceased husband of complainant availed home loan for Rs. 1,45,37,977/- which was disbursed against loan account no. 21779423 and the deceased husband had mortgaged property no. AK-1/98, HIG, Abhay Khand-1, Indirapuram, Ghaziabad, Uttar Pradesh and since that loan account is/was irregular, and the operation of the same came to a standstill and therefore, having left with no option, the OP2 was constrained to classify the account of the complainant as ‘Non- Performing  Asset’ on 3.2.2021 in view of internal guidelines of OP2, which are in consonance with the Reserve Bank of India directives and guidelines. And in these circumstances, the OP2 has already invoked SARFAESI Act and issued a notice dt 22.5.2021 under Section 13 (2) to pay the outstanding amount which was Rs. 1,70,71,173/- on that date.  In reply of said notice counsel for complainant sent a reply dated 2.7.2021. At present the total outstanding amount due and payable against the loan account in question is Rs. 1,81,05,091/- as on 26.10.2021 and OP2 is proceedings against the complainant are only as per law and therefore, complaint against OP2 may be dismissed on merit with exemplary cost.
11. Complainant has filed rejoinder to the written statement of OP1 & OP2 wherein it is stated that deceased has disclosed everything whatever was asked in the proposal form at the time of taking the  policy and details of the previous medical treatment were not disclosed in the proposal form as there was no specific column to disclose about normal treatment other than critical illness in the proposal form. All the questions have been answered in the proposal form and as such repudiation was neither legal nor logical and it is specifically denied that the cause of hospitalization of the deceased was beyond the scope of coverage of the policy. More so, the deceased’s husband has not filled up the column of the insurance policy but only had signed the same, and further that the illness, for which he had earlier been admitted were only the lifestyle ailments. It is further submitted that OP1 has misinterpreted Cancellation Clause “C” of the policy which is illegal and unjust and it is reiterated that the husband of deceased died on account of critical illness as mentioned in the policy documents and not on account of lifestyle ailment. More so, for giving such a high risk policy the OP1 has not undertaken any effort to get the deceased medically examined at its own level. Rest of the contents of the written statement are denied and that of the complaint are reiterated and reaffirmed as correct.
12. As far as rejoinder to the written statement of OP2 is concerned it is stated that the insurance was got done on the saying of OP2 who is an intermediary and it is only OP2 who insisted for getting the coverage of insurance done and for that reason instead of the fact that the loan was applied for an amount of Rs. 1,40,00,000/- and loan of Rs.1,45,33,596/- was sanctioned and the extra amount was exactly the same which was amount of the insurance coverage policy, therefore, there is sufficient cause of action against OP2. It is further submitted that even the loan was taken for commercial purpose but as the deceased husband of complainant had not acquired the same for further business transaction and the same was taken against his immovable property (LAP), therefore, the complainant was covered within the definition of “Consumer” under the Act. As far as certificate section u/s 65B of Indian Evidence Act, 1872 of Indian Evidence Act is concerned, it is stated that same had not been filed as the said emails are the admitted documents and they have no hesitation to file the said certificate. It is further submitted that provision of SARFAESI Act only barred the proceedings before the Civil Court and not the jurisdiction before the Consumer Dispute Redressal Commission under the Act. It is further stated that in any case the present complaint is for securing the funds of OP2 and as such he should have cooperated the complainant instead of raising objections to maintainability etc. Rest of the contents of written statement are denied.
13. Counsels for all the parties have filed their respective evidence reiterated the facts of their respective pleadings and the Commission has heard the arguments of all the parties at length and Commission has also given sufficient opportunity to argue on their respective pleas.
14. In nutshell the case of the complainant is that her husband who was a Doctor by profession had obtained an insurance policy i.e. Group Credit Secure Plus Plan of OP1 for an amount of Rs.1,40,00,000/- for a period of five years with respect to ‘critical illness’ and the husband of the complainant died on 27.1.2020 with the death report “Septicemia with Refractory Shock with Mods with AKI Etiology Bilateral Pneumonitis/ARDS”. She applied with all the necessary documentations to OP1, the claim was repudiated which amounts to deficiency in service as claim has been repudiated illegally and illogically.
15. The case of the OP1 on the other side in nutshell is two-fold and apart from various defenses taken by OP1, it inter-alia contended two major arguments, first that, there is concealment of material facts by the complainant’s husband while taking the policy with respect to his previous ailment/health and, secondly the deceased Shri Anurag Mishra was not suffering from any ‘listed critical ailments’ for which the policy was taken and as such the claim has been rightly repudiated.
16. The defence of OP2 is in nutshell that there is no deficiency of service as far as OP2 is concerned as it only provided loan to the husband of the complainant for which there is no deficiency in service alleged by OP2 and apart from various other defences there is no disclosure of cause of action against OP2, the loan was for commercial purpose and as such complaint is not maintainable against it. The basic argument still remains on behalf of OP2 is that there is no deficiency of service by OP2 in providing the loan to the complainant’s husband.
17. In the backdrop of these points, the Commission has to advert to the claim of the complainant and defences of OP1 as to why it has repudiated the claim of complainant. At the outset the complainant had taken objection in para 18 of the complaint that the complainant’s husband had only signed the blank proposal form as provided by the OP1 and in fact apart from signature, the handwriting is not of the complainant’s husband. During arguments the complainant was specifically confronted as to whether she still wants to continue with this objection but she has not given any specific reply. The Court is of the opinion that if the complainant is challenging the very existence of the insurance policy itself by claiming that her husband has not intentionally taken the policy and apart from signature her deceased husband has not filled up the form or in the alternate he has filled the form in ignorance then her case with respect to having a policy on which she is relying for getting the claim itself would go and fall flat. It appears that complainant is confused as to whether she has to challenge the signature on the proposal form or whether she admits it. This plea is otherwise contrary to the claim of the complainant and there is no specific answer given by complainant when she was specifically asked as to whether she is challenging the existence of the insurance policy or not. In any case, even she has admitted signature on blank proposal form, it was held by the Hon’ble Supreme Court in case ‘Reliance Life Insurance Co. Ltd. and Ors. Vs Rekhahen Nareshbhai Rathore (2019)’ 6 SCC 175 as follows:
    •  

    Now, it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising there from by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.

    If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading of understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the Plaintiff has done in this case that his written answers shall be accurate.”

 

18.  Therefore, this Commission is disposing off this issue by holding that there was valid proposal form filled up by the husband of complainant and the contention of the complainant, on this aspect is of no legal worth.
19. Now, once the proposal form has been held to be filled up by the husband of the complainant it signifies that he had filled up the form or had put his signature by prescribing and with intention to fill the same and also after understanding all the terms and conditions and the contents of the proposal form, before putting his signature.
20. Again the complainant intended to argue as per her pleadings that deceased may have died on account of corona disease. The Commission again confirmed from the complainant whether she is pressing that plea seriously or not but Ld. Counsel for complainant submitted that he is not pressing this contention. Thereafter, the Commission is not dwelling on this part of pleadings.
21. Now the next issue is as to whether the complainant’s husband has not concealed any material fact from the Insurance Company/OP1 at the time of filling up the proposal form or whether he was not suffering from any critical illness and as such he has mentioned “NO” against column 4-A. It is argued by the Ld. Counsel for complainant that although deceased husband of the complainant had been suffering from some ailment in the year 2018, but that ailment was only a daily common life style disease and there was no reason to conceal such fact nor there was any reason not to reveal such ailment and further when he filled up the proposal form he was not suffering from any critical ailment.
22. On the other hand Ld. Counsel for OP1 has contended that not only the husband of the complainant has given incorrect information in the proposal form but apart from this, he did not die on account of any ‘listed critical illness’ which are specifically highlighted at Point No. 4 and further when he was specifically asked that as to whether he or any of the family person/ any person of the group has suffered any ailment, the answer of complainant again was NO. Whereas it is admitted fact that deceased husband of the complainant had suffered with the ailment and had been under hospitalization in 2018 which is admitted by the complainant in Para 7 of the complaint which fact has not been disclosed in the proposal form.
23. Complainant submits that it was a normal disease but her contention has to be appreciated with the medical/history report of admission in the hospital on 15.12.2018. It is specifically admitted by the complainant that her husband was admitted with the complaints of sudden Acute onset of Giddiness, instability while walking, vomiting and multiple episodes of LOC. In ‘Neelam Chopra v. Life Insurance Corporation of India’ Petition No. 4461 of 2012, which is the latest judgment, on this aspect the issues only with respect to common life diseases were discussed. Instability in walking and multiple episodes of LOC or sudden Acute onset or Giddiness generally do not fall within the ambit of common life disease. These in anyway cannot be described as common disease of daily life.  These diseases are more than common life diseases or may be the next stage of daily lifestyle diseases or the extended form of such diseases. If a person with giddiness or instability while walking has been admitted in hospital, then definitely he has some  ailment, and such ailment was within his knowledge and particularly in the present case, whereas the insured himself was a doctor, such knowledge of his health and of the ailments, can not be brushed aside, merely by saying so. The

 

 

deceased was not an ordinary patient, rather was a well informed patient. Further the ailment with which the deceased was suffering in December 2018 may not fall within the ambit of critical illness and may not fall within the definition of point 4-A but definitely falls within the ambit of point 4-C where he was specifically asked as to whether he had been suffering from any ailment. Point 4-C even at the risk of brevity is reproduced here as below :

Are you or any of the persons proposed for insurance undergoing/ awaiting any treatment for any illness?

Insured had replied “NO”

24. The fact that some ailment did exist and deceased had failed to disclose the same, stands proved. Now the question comes as to whether it is concealment of a material fact.  Definition of the term ‘material fact’ has not been specifically defined anywhere in the Act but judicial interpretation announced by the Higher Courts and Hon’ble Supreme Court from time to time would help the Commission to understand for such terminology and it inter-alia has been explained as that “any fact which would influence the judgment of prudent insurer and not a particular insurer is a material fact”. The test is, whether, the circumstances in question would influence the prudent insurer and not whether it might influence him as it was held in Reynold Vs Phoenix Assurance Co. Ltd. (1978) 2 Lloyd’s Rep. 440 –

1. Any fact is material which leads to the inference, in the circumstances of the particular case, that the subject matter of insurance is not an ordinary risk, but is exceptionally liable to be affected by the peril insured against. This is referred to as the ‘physical hazard’.
2. Any fact is material which leads to the inference that the particular proposer is a person, or one of a class of persons, whose proposal for insurance ought to be subjected at all or accepted at a normal rate. This is usually referred to as the ‘moral hazard’.

 

25. Therefore, from these facts this Commission is of the opinion that as to whether a particular fact is material or not, would depend upon and has to be interpreted in view of the documents placed on record and the contents of those documents have to be adverted to. Now coming to the facts and contents. The deceased husband of the complainant was admitted in the hospital in December 2018. The ailment was not a daily common life style disease rather the disease was admitted in hospital i.e. Max Super Speciality Hospital, Vaishali Ghaziabad with history of sudden Acute of Giddiness, Instability while Walking, Vomiting and Multiple Episodes of LOC. This fact definitely has not been disclosed. Therefore, even after going through the judgment as announced in Neelam Chopra case (Supra) it cannot be said that deceased was not suffering from any ailment and was not taking treatment of any ailment at the time of taking the policy and in the opinion of this Commission this is a material fact. The contention of the complainant that it was not a material fact or it was not disclosed while taking the policy as on that date her husband was not suffering from any ailment and as such it was not required to be disclosed, the Commission is of the opinion that this contention is not well found. If complainant claims that her husband was not suffering from any listed critical ailment in December 2018 it may be helpful but only partly, as in that case the case would not be falling within the ambit of Part 4-’A’ but to say that her husband was not suffering from any ailment or has not taken any treatment previously would be contrary to the records submitted and admitted by the complainant herself. This Commission is accordingly of the opinion that the insured has concealed material fact from the Insurer/OP at the time of taking the Policy.
26. Now, coming to the facts as stated by complainant in the complaint at the time when her husband was admitted in Hospital in January 2020. These facts are also to be looked into. The complainant in para 8 of the complaint submits that the deceased husband of complainant admitted in Kailash Hospital & Heart Institute Sector 27, NOIDA U.P. on 25.1.2020 at 05:30:45 hours with the complaint/case summary of “Patient Anurag Mishra age 40 years Male, brought in after being referred from Kailash Hospital, Khurja, UP in a state of shock with complaints of breathlessness for last two days alongwith Pedal Ederna & Cellulitis in Lower Limbs. Patient had gradually progressing skin Lessons (perhaps lesions) for last two months in Lower Limbs and Feet”. Reading this history of the deceased husband of the complainant, with the documents particularly Annexure C-5 it inter-alia indicates that he was brought from Kailash Hospital Khruja, U.P. in state of shock with complaint of breathlessness for the last two days. The medical documents from Kailash Hospital, Khurja, U.P. have not been placed on record. Admittedly patient had been gradually progressing skin Lessons (perhaps lesions) for last two months in lower limbs and feet. A person who is taking certain medicines for last two months with respect to skin Lessons (perhaps lesions), lower limbs and feet, points out that the deceased may not be suffering from any critical ailment particularly if he is taking treatment and has symptoms for last two month. A critical ailment does not allow any patient to remain as OPD continuously for two months generally. Not only this, in Para 15 of the complaint, the complainant again submits that the deceased husband was performing his duties and had seen many OPD & IPD patients in hospital on the date when he was admitted in ICU on account of the complaint of breathlessness and he was most competent and dedicated doctor who dedicated his life for the betterment and wellness of his patients by ignoring his own wellness. This further, suggests the fact, that on the date when deceased was admitted in hospital he apparently was not suffering from any disease which could be categorize as ‘critical’ in terms of point 4-A of the proposal form. From these very facts that Ld. Counsel for OP1 has highlighted and argued that at the time of admission of the deceased in Hospital he was not suffering from any ailment which could be termed as critical and therefore, the insurance company has rightly repudiated the claim of complainant. The Commission has also gone through all these documents time and again and is of the opinion that any ailment by which a person has ultimately died is a critical ailment for the family for the reason that the ailment was such that it could not be properly diagnosed and treated and cured by the doctors. The critical in its literal meaning has a wide connotation and therefore, any death resulting out of any ailment can be categorized as a critical ailment for the family but in the present case the term ‘critical ailment’ has been explained at point 4-A of the proposal form and at the risk of brevity the same is being repeated over here  Critical medical condition would mean Cancer, End Stage Renal Failure, Multiple Scolorosls, Major Organ Transplant, Rhoutralic Heart Disease CoronaryArtery Bypass Graft, Stroke, Paralysis, Myocardial Infection, Angina, Total Blindness, Croutztzloldl-jakob disease, Primary Pulmonary hypertension, Motor Neuron Disease with Permanent Symptoms, Progressive Scleroderea, Brain Tumor, Lung/Liver Failure.  Before coming to the conclusion that the deceased died of any of the listed critical ailment or whether he was suffering from any ailment which falls within the ambit of listed critical ailment, now coming to the death summary of deceased which reads that he died due to “Septicemia with Refractory Shock with MODS with AKI Etilogy Bilateral Pneumonitis/ ARDS”. Taking analysis from the time when the deceased was admitted in Kailash Hospital, Khruja, UP where the medical history as per the complainant herself is that he was suffering from Aderma and Skin lesson (perhaps lesion) for last two months it cannot be categorized that any of such ailment can fall within the ambit of critical ailment in part 4(A) of the proposal form. Even when the patient was brought to Kailash Hospital NOIDA, it is explained in para 15 of the complaint that even of the date of admission in Kailash Hospital, Khurja he was doing the honour of duty of doctor in OPD and IPD which again highlights that he was not having any apprehension of suffering from any disease which may be termed as ‘critical’. The death summary was placed on record but none of these ailment could correlate that deceased was suffering from any critical illness at the time of the admission. He might have died for various reasons as explained in the death summary but in fact initially he was not suffering any critical diseases when he was admitted in hospital.
27. The contention of Ld. Counsel for OP1 is that before succeeding in the present claim, the complainant was supposed to prove that her husband had been admitted in the hospital with any of the listed critical diseases as has been defined as ‘critical ailment’ on the said date and if the deceased was not suffering from any critical ailment then it can not be a case of suffering from a critical ailment. The contention of the Counsel for OP1, therefore, appears to be well found. The conclusion therefore, would be that if the deceased had not disclosed a material fact then it amounts to concealment of material fact and if he was not suffering from any listed critical ailment in that case, he did not die for the listed critical ailment and as such he is not covered under the policy.   Further, if he was not suffering from any critical ailment then his ailment would definitely be covered in point 4-C i.e. ‘any ailment’. If any previous ailment was not critical and was not worth disclosing on the date of filling the proposal form then he cannot be covered with category of critical ailment and if he was suffering from any critical ailment then this amounts to concealment of fact. In both eventualities the complainant has not been able to prove as to what she wants to say i.e. whether the previous ailment was not serious and if that was not serious whether the current ailment was critical. She has not been able to prove by any documents either of the two propositions.  The deceased in this case has died, and the death summary has been explained like this which Ld. Counsel for complainant in his written arguments which are reproduced as below :

 

“SEPTICEMIA WITH REFRACTORY SHOCK WITH MODS WITH AKI ETILOGY BILATERAL PNEUMONITIS/ ARDS”

Septicemia, or sepsis, is the clinical name for blood poisoning by bacteria. It is the body’s most extreme response to an infection. Sepsis that progresses to septic shock has a death rate as high as 50%, depending on the type of organism involved. Sepsis is a medical emergency and needs urgent medical treatment.

Refractory shock is variably defined as persistent hypotension with end-organ dysfunction despite fluid resuscitation, high-dose vasopressors, oxygenation and ventilation. Fluid resuscitation and vasopressors are the initial approaches to the management of shock.

Multiple Organ Dysfunction Syundrom (MODS), can be defined as the development of potentially reversible physiologic derangement involving two or more organ systems not involved in the disorder that resulted in ICU admission, and arising in the wake of a potentially life-threatening physiologic insult.

Acute Kidney Injury (AKI), also known as Acute Renal Failure (ARF), is a sudden episode of kidney failure or kidney damage that happens within a few hours or a few days.

Etiology cause, origin specifically: the cause of a disease or abnormal condition: a branch of knowledge concerned with causes specifically: a branch of medical science concerned with the causes and origins of diseases.

Bilateral: Affecting both sides.

• Inflammation of the lungs. This may be caused by disease, infection, radiation therapy, allergy, or irritation of lung tissue by inhaled substances.

Acute Respiratory Distress Syndrome (ARDS) is a life-threatening lung injury that allows fluid to leak into the lungs. Breathing becomes difficult and oxygen cannot get into the body.

These details show i.e. what is cause of death of the deceased. Admittedly the deceased has not been admitted in the hospital with any of critical ailment diseases. Rather, as per the complaint he was suffering some diseases for last two months, he was suffering from some diseases from previous year and when he was admitted he was not diagnosed with any of such diseases, rather, the fact which appears to this Commission is that during the treatment he developed multi organ failure diseases.

28. Therefore, this Commission is of the opinion that deceased was not suffering from any critical ailment at the time of admission. Apart from the facts mentioned in death summary, the complainant has not been able to prove that he has been admitted or he had been ever suffering from any critical disease at the time of admission. Therefore, complainant is not able to prove that deceased was suffering from any critical disease at the time of admission or died on account of such ailment. Although she has been able to prove that he was suffering from some disease and for those some diseases he has concealed the material facts and in both eventualities the complainant is not able to prove her case.  Accordingly the complaint of complainant against OP1 is dismissed.
29. Now coming to the relief as far as OP2 is concerned the complainant in the entire complaint has not specifically disclosed any cause of action against OP2. The only role of the OP2 as per the complaint is that when the deceased husband of complainant approached OP2 to avail certain loan, the OP2 recommended for having an insurance policy of loan amount and as such it has been made a party. As far as reply of OP2 is concerned it has taken various preliminary objections to the effect that the complaint against OP2 is not maintainable for various reasons i.e. it is bad for mis-joinder of party, there is no disclosure of cause of action, the loan was otherwise for commercial purpose, the only role of OP2 was to provide loan, and they are not at any fault as far as providing the facility of loan is concerned to complainant. Even in the prayer clause of complainant no specific relief has been prayed as far as OP2 is concerned rather during the argument it was argued by Ld. Counsel for complainant that complainant is arguing on behalf of OP2 as well for the reason that  if an amount is received by the complainant against the policy issued by OP1 same has to go to OP2 for discharging its liability which inter-alia means that OP2. This argument by itself from the OP2 establishes that they have not committed any deficiency in service as far as providing loan to the complainant is concerned. Accordingly, the complaint against OP2 is also dismissed.
30. In view of the reasons stated supra, the Complainant has failed to prove deficiency of service on the part of OP1 and OP2 and the the Complaint is accordingly dismissed against both the OPs. All interim injunction/orders including the order dated 19.3.2021 by which OPs were directed to maintain status quo and OP2 shall not take any coercive action against complainant  are vacated & all pending miscellaneous application are also disposed off. No order as to cost.
31. Copy of the order be supplied / sent to the parties free of cost as per rules.
32. File be consigned to Record Room.

Announced on 21.03.2022

DELHI

 

 

(Ritu Garodia) Member

(Ravi Kumar) Member

(S.S. Malhotra) President