1.      The present Revision Petitions have been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (‘the Act’) against impugned order dated 27.11.2020, passed by the learned State Consumer Disputes Redressal Commission, Odisha, Cuttack, (‘the State Commission’) in First Appeal Nos. 443 and 540 of 2013 wherein the State Commission allowed the FA No.443 of 2013 filed by the Respondents/Opposite Parties (OP) and dismissed FA No.540 of 2013 filed by the Petitioner/Complainant against the order dated 22.08.2013 passed by the learned District Consumer Disputes Redressal Forum, Cuttack (‘the District Forum’) wherein the District Forum had allowed the complaint filed by the Petitioner/ Complainant and directed the Respondents/OPs to pay Rs.45,000/- after deducting the payment, if any, made by the Opposite Parties as the medical expenses incurred by the Petitioner/Complainant at Narayan Hrudalaya, Bangalore and to pay a sum of Rs.5,000/- as compensation for mental and harassment and Rs.1000/- as litigation cost within two months from the date of receipt of the order.

2.      There was two days delay in filing the Revision Petitions. For the reasons stated in IA/2220/2021, the delay is condoned.

3.      For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

4.      The brief facts of the case, as per the Complainant are that the Complainant had purchased a medi-claim policy from the OPs vide Policy No. U154417497 paying the annual premium of Rs.20,000/- which was valid from 27.11.1999 to 26.11.2010. The policy was renewable on further payment of Rs.20,000/- and as such the policy was extended till 26.11.2011. It is alleged that during validity of the policy, the Complainant faced certain respiratory problems and was referred by the local physician to Narayan Hrudalaya, Bangalore. She was hospitalised in the said hospital from 26.10.2010 to 30.10.2010. On production of cashless card issued by the OPs, the said hospital did not accept the same on the plea that the policy had lapsed. When she informed OP-2, she was informed that there is some official problem in the policy data and the Complainant can pay charges and the amount will be reimbursed on her return to headquarters. The Complainant incurred expenses towards cost of health checkup and medicines all together Rs.45,000/-. After return to Cuttack she filed the claim with bills for reimbursement of Rs.45,000/-. But, on 25.4.2011 the OPs repudiated the claim on the grounds of supressed the pre-existing disease and treatment taken. Being aggrieved she filed a Complaint in the learned District Forum.

5.      In reply, the OPs contended that the Complainant did not approach with clean hands and suppressed the material facts before the District Forum. On 27.11.2009 she purchased the said TATA AIG Life Insurance policy and paid annual premium of Rs.20,000/- for assured "Daily Hospital Benefit" of Rs.500/-. The said policy was issued based on the representation and declaration made by her in the proposal form dated 25.11.2009. In reply to the questionnaires of the application form, she concealed the fact that she was treated for intermittent Left Bundle Branch Block prior to applying for insurance policy. The policy was issued as per inputs provided in Application form dated 25.11.2009. OPs alleged that having suffered from such disease, she suppressed material fact in the proposal form and made claim after having suffered hypertension and cardiac disease and got treated at Narayan Hrudalaya, Bangalore. Since material facts have not been disclosed in proposal form, the Insurance Company was justified in repudiating the claim of the Complainant.

6.      The learned District Forum vide Order dated 22.08.2013 allowed the complaint and granted the following relief:-

“In the result, the complaint petition is allowed on contest against the Opp. Parties.  The Opp. Parties are directed to pay a sum of Rs.45,000/- after deducting the payment if any made by the Opp. Parties as the medical expenses incurred by the complainant at Narayan Hrudalaya, Bangalore and to pay a sum of Rs.5,000/- as compensation for mental agony and harassment and Rs.1,000/- as litigation cost within two months from the date of receipt of this order.”

7.      Being aggrieved by the Order of the learned District Forum, the Respondents/OPs filed FA No. 443 of 2013 and the learned State Commission vide order dated 27.11.2020 allowed the Appeal and dismissed the complaint filed by the Petitioner /Complainant with the following observations:

“13. The main point for consideration in this case is whether the complainant has proved deficiency of service on the part of the OPs by repudiating the claim.

14. It is admitted fact by both the parties that the complainant has purchased Policy No. U154417497 from the OPs commencing from 27.11.2009 under TATA AIG Life Invest assure Health Policy with yearly premium of Rs.20,000/- to be renewed for each year for daily hospital benefit @ Rs.500/- per day for 180 days in a year and double benefit @1,000/- if a policy holder remain in ICU during her hospitalisation. It is not in dispute that the complainant was hospitalised from 26.10.2010 to 30.10.2010 at Narayan Hrudalaya, Bangalore having suffered respiratory problem. It is also not in dispute that the complainant made a claim all together Rs.45,000/- after return from Bangalore and it was repudiated by the OPs.

15. In the decision of Mithoolal Nayak Vs. Life Insurance Corporation of India AIR 1962 Supreme Court 814, it has been held by the Hon'ble Apex Court as follows:-

              “xxx xxx xxx

    The three conditions for the application of the second part of Section 45 are

a) the statement must be on a material matter or must suppress facts which it was material to disclose,

b) the suppression must be fraudulently made by the policy holder and

c) 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."

16. With due regard to the decision, it is clear that the entire onus lies on the insurer to prove that the complainant has suppressed the material fact to disclose and has made mis-statement to avail policy. No doubt the insurance contract based on uberimma fides that means on good faith both parties entered to the agreement. Now in the instant case, the onus lies on the OPs to prove that the complainant has suppressed the material fact while making proposal to purchase the policy.

17. It is the claim of the OPs that the complainant has suffered from hypertension and cardiac problem having been admitted in SCB Medical College and Hospital, Cuttack from 7.7.2004 to 8.7.2004 and 13.7.2004 to 23.7.2004. The OPs filed xerox copy of discharge ticket of the complainant issued by the Department of Cardiology, SCB Medical College & Hospital, Cuttack wherein she was admitted on 7.7.2004 and discharged on 8.7.2004 and the disease diagnosised was hypertension and Intermittent LBBB. Now the medical certificate submitted by the complainant shows that the complainant was admitted in Narayana Hrudalaya, Bangalore and discharge summery shows that she was previous history of case of hypertension with LBBB and was treated at SCB Medical College & Hospital, Cuttack. The aforesaid materials produced by the Ops clearly show that the complainant has got hypertension with LBBB even prior to 5 years from the date of admission at Narayan Hrudalaya Bangalore. The OPs have filed the proposal form where at Step 7 with regard to health detail of the proposed assured and family members at 7.3(d) is as follows:-

3. "Do you have or have you ever had any of the following:-

            xxx xxx xxx

(d) High blood pressure, palpitations, chest pain, raised cholesterol, heart disease, heart attack or any disorder of the heart?

            xxx xxx xxx

The answer was given by the complainant "No".

Step 7.6(a) & (b) is as follows:-

            At any stage during teh past 5 years have you

a. Attended any hospital, clinic or doctor office for diagnostic tests such as x-ray, Mammogram, PAP smear, ultrasound, blood tests, CT scan, biopsy for any lump, cyst, tumor, chronic lesions or growths of any kind ECG, urine or other investigations other than for routine employment checkups purpose? (If Yes please provide a copy of the relevant reports)

b. Either been prescribed medication (other than for cold or flu) or received medical treatment/advice on a regular basis? (If yes, please provide details)"

  The answer of the complainant was in negative. When the complainant was suffering from hypertension have been with LBBB before 5 years she ought to have answered "Yes" to question No. step 7.3(d).

18.      In view of above discussion, we are of the view that the OPs have proved that the complainant has suppressed the pre-existing disease by answering "No" to step 7.3(d).

19. On the other hand, the insurer has clearly proved that the complainant has suppressed the material fact while filling up the proposal form. This step 7 clause 3(d) was not at all discussed by the learned District Forum. The learned District Forum ought to have discussed this clause along with other clause i.e. step 7.6. It is a fact that both clauses are different. Step 7.3 relates to different kinds of disease if at all suffered by the policy holder before making proposal. But step 7.6 relates to hospitalisation or any medication or investigation during last 5 years before making proposal. Therefore, both clauses are different to each other. The discussion of the learned District Forum with regard to applicability of clause 7.6 only to the complainant is on wrong premises.

20. On the other hand, there is error on the part of the learned District Forum for not discussing step 7 clause 3(d) and the complainant has suppressed by answering said question “No". Therefore, the OPs insurer have amply proved that the complainant has suppressed the material fact by giving mis- statement in the proposal form.

21. In view of the decision of the Hon'ble Apex Court in the case of Life Insurance Corporation of India vrs. Asha Goel reported in AIR 2001 SC 549, non- disclosure and misstatement of material fact in the proposal form is a good ground for recitation of contract.

22. With due regard to the principle enunciated by the Hon'ble Apex Court, we are of the view that learned District Forum has misdirected itself by allowing the complaint in part instead of dismissing the complaint as a whole.

23. In view of aforesaid analysis, we are of the view that the decision of the learned District Forum being illegal, improper and arbitrary one is liable to be set aside and we do so. Hence, FA No 443 of 2013 is allowed whereas FA No. 540 of 2013 is dismissed.”

8.      Being dissatisfied by the Impugned Order dated 27.11.2020 passed by the State Commission, the Petitioner/ Complainant has filed the instant Revision Petitions bearing nos.268-269 of 2021.

9.      I have examined the pleadings and associated documents placed on record and rendered thoughtful attention to the arguments advanced by the learned Counsels for both the parties.

10.    The case of the Petitioner pertains to rejection of a medi-claim under Tata AIG Life Invest assure Health policy. The petitioner, who is the policyholder, contended that the repudiation of the claim is wrongful. She asserted that she never concealed any material facts and the policy was purchased in 2010 and the medical records relied upon by the OPs were provided by the Petitioner herself to the representative at the time of filling-in the proposal form as per query by the agent. The proposal was filled by the agent of the insurer and the Petitioner purchased the policy by paying premium entirely relying on the assurance by the agent of the OPs that illness prior to 5 years of issuance of policy will not be reckoned. Thus, the finding of suppression of facts is baseless and entirely misconceived and the repudiation is unjustified. She sought proper settlement of the claim as per District Forum order.

11.    On the other hand, the OPs contentions and arguments revolve around the assertion that her claim was rightly repudiated due to non-disclosure of material facts while taking the insurance policy. The OPs relied on certain legal precedents to assert that she has a duty to disclose pre-existing ailments health condition to OPs.

12.    It is a matter of record that the Complainant had purchased a medi-claim policy from OPs vide Policy No. U154417497 and paid the annual premium of Rs.20,000/- which was valid from 27.11.1999 till 26.11.2010. The policy was renewable on further payment of Rs.20,000/- and was extended till 26.11.2011. It is alleged that during the policy validity, the Complainant faced certain respiratory problem and referred by the local physician to Narayan Hrudalaya, Bangalore where she was admitted from 26.10.2010 to 30.10.2010. On production of cashless card issued by the OPs, the said hospital did not accept the same on the plea that the policy has got lapsed. When she informed OP No.2, she was informed that there is some official problem in the policy data and she can pay charges and reimburse the same on her return to the headquarters. However, it is alleged that the Complainant incurred expenses towards cost of health checkup and medicines all together Rs.45,000. After return to Cuttack she filed a claim with bills and vouchers for reimbursement of Rs.45,000/-. But on 25.4.2011, the OPs repudiated the claim on account of supressing pre-existing disease and treatment taken.

13.    It is also an admitted position that the insured was suffering hypertension and intermittent LBSS as on July 2004. She had not disclosed this at the time of taking the insurance policy on 25.11.2009. She urged that no material fact was concealed from the insurer at the time of taking the policy. However, while filling the proposal they did not include the medical details explained. On the other hand, the OPs asserted that the insurance policy is an independent contract in itself and the insured was bound to clearly bring out all prescribed details, including her medical condition. However, she failed to do so. Hon’ble Supreme Court in Bajaj Allianz Life Insurance Company Ltd. v. Dalbir Kaur, 2020 SCC OnLine SC 848 decided on 09.10.2020 has held:-

“A contract of insurance is one of utmost good faith. A proposer who seeks to obtain a policy of life insurance is duty bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. It is with this principle in view that the proposal form requires a specific disclosure of pre-existing ailments, so as to enable the insurer to arrive at a considered decision based on the actuarial risk.”

14.    Similar view was taken by the Hon’ble Supreme Court in Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod, (2019) 6 SCC 175 decided on 24.11.2019 wherein it was held that suppression of the facts made in proposal form will render Insurance Policy voidable by the Insurer. A Division Bench of the Mysore High Court in VK Srinivasa Setty Vs M/s Premier Life and General Insurance Co Ltd which is cited with approval by the Hon’ble Supreme Court in this case:

31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd21 where it was held:

― 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 therefrom 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.

15.    In the present case, it is the contention of the Petitioner that the insured was covered under the life insurance policy from 27.11.1999 to 26.11.2010. However, the insured was hospitalized from 26.10.2010 to 30.10.2010. It is also an admitted position that the insured was diagnosed with hypertension and intermittent LBSS and had undergone treatment for same before taking the insurance policy in question in the year 2004. While the Complainant asserted that she did not conceal about the previous illness, however, the proposal form filled by the insured has not mentioned any previous illness. Thus, there is no impropriety on the part of Respondents/ OPs in repudiating the claim.

16.    Based on the aforesaid discussion as well as the principles laid down by the Hon’ble Supreme Court as mentioned above, I am of the considered view that the Order of the State Commission dated 27.11.2020 does not suffer from any infirmity. The Revision Petitions No. 268-269 of 2021 are therefore dismissed.

17.    There is no order as to costs. All pending Applications, if any, stand disposed of accordingly.