DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.783 of 2016
Date of institution: 25.11.2016 Date of decision : 07.02.2018
Balbir Sharma son of Moti Ram Sharma resident of House No.367, Dashmesh Nagar, Naya Gaon, District Mohali.
…….Complainant
Versus
1. TATA AIG General Insurance Company Ltd. through its Chairman, A 501, 5th Floor Building No.4, Infinity IT Park, Dindoshi Malad (E), Mumbai 400097.
2. TATA AIG General Insurance Company Ltd., SCO 232-234, Second Floor, Sector 34-A, Chandigarh through its Manager.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum:
Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri N.S. Jagdeva, counsel for complainant. Shri Sahil Abhi, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant availed Accidental Shield Policy from OPs for self and his wife after paying premium of Rs.1,985/- with validity period from 13.08.2014 to 12.08.2017 (wrongly mentioned as 13.08.2014 to 12.08.2014 in the complaint). Assured sum was Rs.5.00 lakhs. Policy bearing No. 0200465004 was issued. Wife of complainant namely Shakuntla Sharma fell from roof top of house and sustained fracture on ankle and plaster was applied on her foot by Command Hospital, Panchkula. She kept on having treatment for Tendo Achilles Tear by remaining admitted in hospital from 10.06.2014 to 19.06.2014. Upon discharge from hospital, she was perfect and continued to do her normal routine house jobs. In August, 2014 Smt. Shakuntla Sharma again complained regarding problem in ankle and she was taken to hospital on 10.08.2014, where she remained admitted till 18.08.2014. Suddenly on 18.08.2014 wife of complainant suffered cardiac arrest at 6.00 a.m. and thereafter she expired in the hospital itself. Medical certificate of hospital produced with the complaint alongwith death certificate issued by Registrar, Births & Deaths, Panchkula. OP Company was informed about this death and thereafter email correspondence was sent on 08.09.2014. On 09.09.2014 the complainant received confirmation of intimation in response to email. On 10.09.2014 claim was lodged with OP Company and confirmation receipt of claim was received. On 15.09.2014 complainant received email from office of OPs, vide which certain queries and documents were sought from complainant. Those documents were supplied and even claim form was submitted and formalities were complied with on 15.11.2014 by taking steps for getting the claim form filled in all respects and submitting requisite documents. Through email 24.09.2014, OPs were required to do the needful for processing the claim and again another detailed email was sent by complainant to OPs on 14.10.2014. Thereafter again number of emails were sent on 18.10.2014 and 31.10.2014 but despite that the claim was repudiated by OPs on 16.12.2014 by holding that submitted medical record shows as if the treatment got was relating to past medical condition, which was existing prior to inception of the policy and as such the claim is not admissible. Rejection of claim on account of pre existing condition alleged to be improper because benefit of relevant clause is not available, more so when the perusal of the hospital treatment record shows that wife of complainant was admitted in hospital due to injury received after fall from roof top of house. Cause of death mentioned by attending doctor was sudden cardiac arrest, which was having no remote connection with the disease, for which wife of complainant had been getting treatment. By pleading deficiency in service on part of OPs, and after submitting written representation dated 05.01.2015, this complaint filed for seeking direction to OPs to pay medical claim of Rs.5.00 lakhs with interest @ 15%. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.33,000/- more claimed. It is claimed that proposal form was signed and submitted to the agent at Naya Gaon and policy was issued by office of OP No.2 and received at the address of Naya Gaon and as such this Forum has territorial jurisdiction.
2. In joint reply submitted by OPs, it is claimed that complaint is barred under Section 26 of the Consumer Protection Act and the claim rightly repudiated in view of general exclusion clause contained in Part-B of the policy . Besides, it is claimed that complainant is estopped by his own act and conduct from filing the complaint because he has not approached the Forum with clean hands. Complaint also alleged to be not maintainable because of involvement of complicated questions on law and facts requiring elaborate evidence. Moreover, it is claimed that insurance claim pertaining to death of Smt. Shakuntla Sharma does not come within the purview of insurance policy. However, it is admitted that complainant obtained Accidental Shield Policy for self and wife with validity from 13.08.2014 to 12.08.2017. It is not disputed that Smt. Shakuntla Sharma sustained injury in accidental fall on 03.06.2014. That injury on ankle was received by her before inception of policy. Death of Smt. Shakuntla Sharma did not take place due to injury sustained but due to cardiac arrest which is not an accidental death and as such benefit of policy not available to complainant. No FIR was lodged and nor PMR examination was got conducted for finding the cause of death. Complainant was called upon by the OPs vide letter dated 28.10.2014 to submit all the documents and information even was sought through that letter. M/s BIMVIGIL Claims Investigation Pragati Vihar, Gamiri Extension, P.O. Bhajanpura, Delhi was appointed as investigator, who after conducting thorough investigation submitted report dated 28.11.2014. During processing of claim, statement of physician in the form of questionnaire was obtained and the same was duly signed by Lt. Col. Onkar Singh on 15.11.2014. As per that statement, insured slipped and fell from the roof top and sustained tendo-actrilles tear left on 03.06.2014 due to which she was hospitalized from 10.06.2014 to 19.06.2014 and again from 10.08.2014 to 18.08.2014. Statement of attending physician does not indicate that death was due to injury. After receipt of documents like statement of attending physician, report of investigator etc. and after due application of mind by officials of the OPs, claim was duly repudiated as per terms of the policy. The policy in question was purchased when the insured Smt. Shakuntla Sharma was in hospital, but despite that detail of accident was not shared vide information supplied through proposal form. That was a malafide act on the part of the complainant. Deceased coverage was for insured sum of Rs.2.50 lakhs because coverage for spouse was limited to the extent of 50%. Complete policy with terms and conditions was supplied to the complainant and as such the complainant estopped from taking false and frivolous plea that only four pages of cover note were supplied. Treatment got by Smt. Shakuntla Sharma during policy period related to her past medical condition and as such no insurance amount with respect to that treatment can be claimed. Though death of Smt. Shakuntla Sharma took place on 18.08.2014, but insurance company was informed regarding the same on 08.09.2014 i.e. after expiry of 21 days of such death. So violation of terms and conditions of the policy in this respect alleged, more so when those terms provide that written notice of claim must be submitted within 7 days after actual or potential loss begins or as soon as reasonably possible. Admittedly emails dated 10.09.2014. 15.09.2014, 24.09.2014 and 29.09.2014 as well as 14.10.2014 were received. All other averments of the complaint denied, by claiming that repudiation of the claim is legal and valid.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-15 and thereafter his counsel closed evidence. On the other hand, counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Sanjay Bhagat, Chief Claim Manger, of Sh. Anoop Bishat, Prop. of M/s. BIMVIGIL Claims Investigation Agency Ex.OP-1/2 along with documents Ex.OP-1 to Ex.OP- and thereafter closed evidence.
4. Written arguments in this case submitted by counsel for the complainant alone and not by the OPs. Oral arguments heard and records gone through.
5. Admittedly, Accidental Shield Policy was purchased by complainant for self and his wife Smt. Shakuntla Sharma for period from 13.08.2014 to 12.08.2017 regarding which insurance policy cover note Ex C-1 = Ex OP/1 was issued. Copies of terms and conditions of the insurance policy produced on record by both the parties and as such in view of production of those terms and conditions in toto by the complainant, certainly complainant estopped by his act and conduct from claiming that complete copy of terms and conditions was not supplied to him at the time of issue of policy in question.
6. It is well settled that terms and conditions of the insurance policy are binding on the parties and nothing can be added or subtracted thereto by giving different meaning to the words mentioned therein. In holding this view, we are fortified by law laid down in case Ind. Swift Vs. New India Assurance Co. Ltd. & Others IV (2006) CPJ 148 (NC); Usha Sharma & others Vs. New India Assurance Co. Ltd. & Others I (2012) CPJ 488 (NC), United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC) and Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd. I (2009) CPJ 6 (SC). So it is to be adjudged in light to this legal position as to whether repudiation of the claim through letter Ex.C-15= Ex.OP-4 is justified or not.
7. After going through Ex.C-5 = Ex.OP-4, it is made out as per statement of attending physician dated 15.11.2014, Smt. Shakuntla Sharma had slipped and fell from the roof top and sustained Tendo Achilles tear left on 03.06.2014, due to which she was admitted in the hospital from 10.06.2014 to 19.06.2014, which was prior to inception of the policy. That fact has not been denied in the compliant at all. Rather in Para No.3 of the complaint these facts are admitted. However, commencement of the policy took place w.e.f. 13.08.2014 and as such it is obvious that Smt. Shakuntla Sharma sustained injury referred above atleast two months prior to inception of the policy in question and even she got treatment for that injury for 9 days prior to inception of the policy. That pre medical condition certainly was not disclosed by insured while submitting proposal form because in column No.8 of the proposal form, it is specifically mentioned as if neither complainant and nor his wife Smt. Shakuntla Sharma was suffering from any pre existing disability/illness. So certainly while purchasing the policy in question, the information regarding pre medical condition/illness of Smt. Shakuntla Sharma was suppressed because wrong information was supplied through proposal form. Though Smt. Shakuntla Sharma kept on getting treatment from Command Hospital during the period from 10.06.2014 to 19.06.2014 for the above referred injury, but despite that mention of same is not at all made in the proposal form. So certainly, OPs were mislead in this respect at the time of submission of proposal form.
8. In view of treatment got by Smt. Shakuntla Sharma for the above referred injury sustained on account of fall prior to inception of policy, certainly insurance claim in that respect is not sustainable and perhaps due to that the same is not put forth. Part-B containing general exclusion in the terms and conditions of the policy annexed as Ex.C-1 = Ex.OP-1, specifically provides that the insurance policy does not provide benefit for any loss resulting in whole or in part of expenses incurred, directly or indirectly in respect of any pre existing condition or any complication arising from it. Pre existing condition is defined in Clause 23 of Part-A of the terms and conditions of the policy as a condition ailment or injury or related condition for which insured person had signs or symptoms, and/or were diagnosed, and/or received medical advice/treatment within 48 months prior to commencement of the first policy issued by insurer. The pre existing condition regarding sustained injury due to fall in this case before us was just 2-3 months prior to commencement of the first policy in question w.e.f. 13.08.2014 and as such policy benefit is not available for claiming reimbursement of expenses incurred on treatment during period from 10.06.2014 to 19.06.2014 or for period from 10.08.2014 to 13.08.2014. It may be mentioned here that in Para No.4 of complaint, it is specifically admitted that Smt. Shakuntla Sharma again was admitted in Command Hospital, Panchkula for getting treatment for the previous received injury during the period from 10.08.2014 to 18.08.2014 but despite that mention of this admission even not made while submitting proposal form. So there is deliberate suppression of material facts regarding pre existing medical condition of Smt. Shakuntla Sharma at the time of obtaining the policy. That deliberate suppression even made, give rise of cause to OPs to treat the policy as void because concealment of material facts or the fraudulent representation is enough of treating the policy as void as per Clause 8 contained in Part-C of the terms and conditions of the policy.
9. Ex.C-2 = Ex.OP-7 is copy of the medical certificate of cause of death of Smt. Shakuntla Sharma. After going through this certificate Ex.C-2 = Ex.OP-7, it is made out that death of Smt. Shakuntla Sharma took place due to sudden cardiac arrest and as such certainly the said death was a natural death and was not a death caused by any accident. Even statement of attending physician placed on record as Ex.OP-3 discloses that. Copy of the death certificate of Smt. Shakuntla Sharma produced on record as Ex.C-3 by complainant, but as Ex.OP-6 by OPs. After going through Ex.OP-7, statement of attending physician, it is made out that sudden cardiac arrest was not on account of injury earlier sustained by Smt. Shakuntla Sharma, for which she got treatment from 10.06.2014 to 19.06.2014 or thereafter from 10.08.2014 to 18.08.2014. Being so, contention of counsel for the OPs has force that the claim of the complainant is not payable as per terms and conditions of the policy.
10. After going through Clause-1 contained in Part-A of general terms and conditions of the policy, it is made out that accident means a sudden, unforeseen and involuntary event caused by external, visible and violet means. Death of Smt. Shakuntla Sharma did not take place on account of any involuntary event caused by external, visible and violent means, but same took place due to sudden cardiac arrest, which was an event not visible externally and nor was caused by violent means and as such certainly death of Smt. Shakuntla Sharma was not an accidental death within the meaning of Clause-1 of Part-A of terms and conditions of the policy. In view of the fact that through policy schedule Ex.C-1 = Ex.OP-1, insurance benefit to extent of 50% for the spouse was available under the Accidental Shield Policy, it is obvious that said benefit would have been available if the death would have been an accidental death. The cause of death should be directly or indirectly related to an event caused by external, visible and violent means, so as to make the death as an accidental death. However, cause of death in this case was not due to any event caused by external, visible and violent means but due to an internal bodily problem resulting in cardiac arrest and as such certainly the claim of the complainant rightly repudiated by keeping in view the terms and conditions of the policy. Even as per description mentioned in the heading “what am I covered for”, it is mentioned that coverage is for accidental death arising due to an accident as defined in policy terms and conditions. That accidental death, as defined in the terms and conditions of the policy, of Smt. Shakuntla Sharma has not taken place as discussed in detail above and as such certainly repudiation of the claim is quite in accordance with terms and conditions of the policy. Being so, deficiency in service on the part of the OPs cannot be inferred and nor they have adopted any unfair trade practice in reputation of the claim in question, more so when the same repudiated after getting thorough investigation conducted and obtaining report Ex.OP-2 of the investigator alongwith statement of attending physician Ex.OP-3. In the present case, in the accident claim form Ex.OP-5 specific mention of the injury sustained by Smt. Shakuntla Sharma in June, 2014 and of getting of treatment by her during period from 10.06.2014 to 19.06.2014 even not made and as such there is suppression of facts in this respect also.
11. Learned counsel for the complainant has placed reliance of ratio of cases titled as Baldev Singh Malhi Vs. New India Assurance Co. Ltd. & Anr., 2003 (1) CPJ 79 (NC); United India Insurance Company Ltd. Vs. Madhuben, 2009 (2) GujLH 738 (Hon’ble Gujarat High Court), and Additional Secretary Chhattisgarh State Power Holding Company Ltd. Vs. Bajaj Allkianz General Insurance Company Ltd. decided on 19.03.2014 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi through Revision Petition No.2139 of 2011 for arguing that in all these cases it has been held specifically that when death takes place due to cardiac arrest, then the same to be treated as accidental death. However, these submissions though look ex-facie correct, but in fact they have no force because after going through case of B.S. Malhi (ibid) it is made out that cardiac arrest in this reported case took place because of mistaken consumption of poisonous substance by the deceased. That mistaken consumption was treated as an accident in the reported case, but it is not the position in the case before us. Likewise in case of United India Insurance Company Ltd. Vs. Madhuben (supra) it was found that cardiac arrest was due to shock sustained on account of received burn injuries, but it is not the position again in the case before us. Similarly in case of Additional Secretary Chhattisgarh State Power Holding Company Ltd. Vs. Bajaj Allkianz General Insurance Company Ltd. (supra) cardiac arrest took place due to shock on account of fall from electric pole of height of 36 feet. In all these cases cardiac arrest was caused due to direct/indirect impact of external force of consumption of poison or on account of sustained burn injuries or on account of fall from height of 36 feet but it is not at all the position in the case before us because here cardiac arrest was abrupt and sudden without applicability of any external force or shock. So benefit of ratio of above cited cases is not available to the complainant at all. As repudiation of the claim, in view of above discussion, is quite appropriate as per terms and conditions of the policy and as such there is no deficiency in service on the part of the OPs and nor they adopted any unfair trade practice. Rather the repudiation is quite justified, legal and in accordance with terms and conditions of the policy.
12. As a sequel of above discussion, the complaint dismissed without any order as to costs.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.
Announced
February 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
