BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                          Dated this the 12^th of May 2011

PRESENT

                                                    SMT. ASHA SHETTY           :   PRESIDENT                

                                                                          SMT.LAVANYA M. RAI       :   MEMBER                   

                                                                         SRI. ARUN KUMAR K.        :   MEMBER

    COMMON ORDER IN COMPLAINT NUMBERS 173/2010 and 174/2010

(Admitted on 19.06.2010)

Complaint No.173/2010 and 174/2010:

Mrs.Meera Julie Agnes Veigas,

Wo. William Edward Sequiera,

Aged about 49 years,

Resident of Hosakadu House,

P.O. Punaroor, Talipady Village,

Kinnigoli,

Mangalore                                       …….. COMPLAINANT in both

    the cases.

(Advocate for the Complainant: Sri.K.S. Nambiar)

          VERSUS

TATA AIG Life Insurance Corporation Limited,

Kayarmanj, 3^rd Floor,

M.G. road, Ballal Bagh,

Mangalore 3.

Represented by Principal Officer.         ……. OPPOSITE PARTY in

  both the cases.

(Advocate for the Opposite Party: Sri.K.S.N. Rajesh).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The above complaints are filed by the same Complainant under Section 12 of the Consumer Protection Act against the same Opposite Party alleging deficiency in service claiming certain reliefs. 

The brief facts of the cases are as under:

The Complainants in both the cases submits that, she had obtained Tata AIG Health Protector – 5 year guaranteed renewable accident and health product Insurance policy bearing No.C001606432 from the Opposite Party.  It is stated that, the policy was obtained on 10.06.2006 and the payment of premium was made by way of cheque dated 07.06.2006, the policy commenced on 10.06.2006.

It is stated that, on 11.2.2006 the Complainant had approached KMC Hospital Mangalore with breathlessness and wheezing problems.  She has been diagnosed by the KMC hospital and she was suffering from chronic renal failure.  As a result of her illness, the Complainant had to undergo extensive medical treatment and also spent Rs.12,00,000/- for her treatment.  It is stated that, the Complainant had suffered critical illness in the month of December 2006, as per the above policy, the Complainant is entitled to a lumpsum payment of Rs.3,00,000/- from the Opposite Party in the event of critical illness.  The claim of the Complainant was rejected as per their letter dated 20.08.2008 and 20.04.2009 without any justifiable reasons.

The Complainant further stated that, she had made payment of premium of Rs.6,725/- by way of cheque dated 07.06.2009 drawn on State Bank of India, the same was sent back by the Opposite Party along with the letter dated 12.06.2009 stating that policy has been declined by the Opposite Party on medical and financial grounds.  It is contended that, the Opposite Party could not unilaterally refuse to accept the renewal premium paid which covered various benefits.  The Opposite Party without assigning any reasons the policy has been discontinued and hence the above two complaints came to be filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to renew the Tata AIG Health Protector – 5 year Guaranteed Renewable Accident and Health Product Insurance Policy of the Complainant with effect from the date on which the last premium was payable and also seeking direction from this Forum to the Opposite Party to make payment of Rs.3,00,000/- being the amount payable to the Complainant under the critical illness benefit condition of the policy along with interest at 18% p.a. from 20.08.2008 till the date of payment and further claimed compensation and cost of the proceedings. 

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version in both the complaints.  The Opposite Party admitted the policy issued by them and it is stated that, the Complainant suppressed the material facts with regard to her health at the time of making the proposal.  It is stated that, non-disclosure of the material medical fact by the life assured is a ground for repudiation of the said policy.  On 21.06.2006 Mrs.Meera Julie Agnes Veigas i.e., the Complainant had submitted the claim form for insurance coverage under the “Health Protector Plan”.  Based on the information and declaration provided in the proposal form along with the receipt of initial premium a policy bearing No.C001606432 was issued to the Complainant.  While filling the proposal form, the Complainant had given negative answer with regard to the medical details of the life assured.  On 23.03.2008 the Opposite Party received a claim in respect of the said policy stating that the Complainant had undergone dialysis and has incurred expenses for the same.  In respect of the above claim, the Opposite Party requested the Complainant to produce various documents to process the said claim.  On receipt of the documents from the Complainant, the Opposite Party came to know that the Complainant had undergone consultation at Concetta Hospital in outpatient department on 25.02.2005 and she further followed up regularly in the said hospital for her illness.  These tests are kidney related specific blood tests.  On perusal of the documents submitted by the Complainant and also during the investigation of the claim the Opposite Party came across various medical documents and as per the medical documents the Complainant is suffering from renal failure and her condition was aggregated so much that she has to undergo for dialysis for the same and stated that as per the contract of insurance policies, for any illness to qualify as critical illness symptoms of same must appeared after 180 days of policy issuance.  The signs and symptoms of an illness appeared in this case before 180 days of the policy hence the Complainant is not entitled for any claim.

It is further stated that, the Complainant not disclosed the material facts with regard to her health and misrepresented the Opposite Party, hence the contract of insurance is void and not tenable in the eye of law and stated that there is no deficiency and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in these cases are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaints, Mrs.Meira Veigas (CW1) -  Complainant in both the cases filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C4 as listed in the annexure in detail. One Sri.Rajesh Dhane (RW1) – Authorized Legal Representative of the Opposite Party filed counter affidavit but not answered the interrogatories served on him.  Ex R1 to R9 were marked for the Opposite Party as listed in the annexure in detail.  The Complainant as well as the Opposite Party filed notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Negative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

Since both the complaints are pertaining to the same subject matter, we have considered to take up the matter for passing common order in order to save the time. 

The facts which are not in dispute is that, the Complainant had obtained TATA AIG Health protector - 5 years guarantee renewable accident and health product insurance policy bearing No.C001606432 from the Opposite Party (as per Ex C1).  The above said policy commenced on 10.06.2006 and maturity / expiry date is 10.06.2026.  The Complainant Meera Julie Agnes Veigas is insured under the policy.  The above said policy covers health protector, accident and death benefit, total permanent disability, accidental hospitalization income, critical illness and term benefit.  Under the head ‘critical illness’ the coverage of Rs.3,00,000/- was given to the Complainant by the Opposite Party. 

Now the point in dispute between the parties before this FORA is that, the Complainant came up with a complaint stating that the claim of the Complainant was rejected and the premium of Rs.6,725/- paid by the Complainant was sent back by the Opposite Party stating that, the policy has been declined by the Opposite Party on medical and financial grounds which is not correct, hence the above complaints filed.

The Opposite Party on the other hand contended that, the Complainant suppressed the material facts with regard to her health while submitting the proposal form and it is stated that, the proposer must furnish all the material information required by the insurer to decide whether to accept or decline, to undertake the risk and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted and to decide whether to accept or not.  But in the instant case, the Complainant not submitted or furnished all the material information with regard to her heath and later they found that the Complainant suppressed the material information hence they declined to accept the premium.  And further stated that, for any illness to qualify as critical illness sings and symptoms of same must appear after 180 days of policy issuance but if the signs and symptoms of same appeared post 180 days or before 180 days the critical illness cannot be considered.  In this case, symptoms and signs of the above illness appeared before 180 days of the issuance of the policy, hence the Complainant is not entitled. 

The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C4. Opposite Party also filed oral evidence by way of affidavit and produced Ex R1 to R9.

On perusal of the oral as well as documentary and admitted facts, we find that, no doubt the Complainant obtained the above said Health Policy from the Opposite Party.  Under the above said health policy a sum of Rs.3,00,000/- covered under the head ‘critical illness’.  However, we have perused the terms and conditions of the policy, wherein, “critical illness” means, “the signs or symptoms of which first commence more than 180 days following the issue date or the commencement date or date of any re-instatement of this policy, whichever is the latest and shall include either the first diagnosis of any of the following illness or first performance of any of the covered surgeries stated below……..”.

We also observed that, while submitting the proposal form, it is the bounden duty of the Complainant to furnish all material facts with regard to her health or in other words while submitting the proposal form, wherein, a set of questionnaire was given and the questions are supposed to be answered fairly without concealing the material facts with regard to the health condition of the insured.  Because it is a settled principle that, the proposer must furnish all the material information required by the insurer to decide whether to accept the policy or decline, to undertake the risk and in the case of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted etc. etc.  On perusal of the documents as well as the oral evidence produced by the Complainant and the Opposite Party, wherein, the proposal form contains the following questionnaires which are reproduced herebelow (admitted facts):-

4. Have you ever had any of the following?

h) Kidney or bladder disorder, urine abnormality or genital organ disorder?                          “No.”

            6)      In the last 5 years, have your attended doctor or any

                        other medical facility for investigation or diagnostic

            tests (such as X-ray, ultrasound, CT Scan, biopsy,

ECG, blood or urine etc)?                         “No.”

It is also admitted that, the above said proposal form contained a declaration to the effect that if after the issuance of the policy, it is found that the statement, answers or particulars stated in the proposal form and it’s questionnaire are incorrect or untrue in any respect; the insurance company shall incur no liability under the insurance.  On perusal of the above said answers given by the Complainant reveals that, she had not attended any doctor or undergone any medical investigations in the last 5 years.  Believing the above said answers, the Opposite Party accepted the policy but during the investigation they found that the Complainant suppressed the material facts with regard to her health. 

However, in order to disprove the above contentions, the Opposite Party produced the documents i.e., hospital records (Ex R6), wherein, the Complainant was admitted to KMC hospital on 11.12.2006 and discharged on 16.12.2006, where she was diagnosed of Chronic Glomerulonephritis (CGN), - CRF (Chronic Renal Failure), Hypertension.  And further the outpatient record (i.e., Ex R5) issued  by the Concetta Hospital, Kinnigoli, wherein, it shows that the Complainant undergone various tests i.e., blood – urea – 40 meq and creatinine – 1.5 Meq and further the very same documents reveals that, the Complainant had subsequently consulted at Concetta Hospital in 04.05.2005, 07.06.2005 and 16.07.2005.  The above tests were kidney related specific blood test.  Apart from that, she also underwent further consultation with the same hospital as an outpatient, which could be seen in outpatient record dated 25.02.2005 of the said hospital i.e., Ex R5 as stated supra.  As per the outpatient record of the Concetta hospital, the Complainant was underwent a blood test on 03.12.2006 and also underwent an ultra sonography of abdomen as per which she had grade II renal parenchymal disease, she was further referred to KMC hospital for further management.  The above all documents produced by the Opposite Party clearly reveals that, the Complainant had a signs or symptoms of the above said disease not on the day she admitted to the KMC hospital but she had the symptoms right from the year 25.02.2005.  Now the question is, in a case of life insurance, the life assured must furnish all material information with regard to the health.  The proposal, the personal statement and the life insurance policy all contains a special clause putting the insured on notice that in case of any such deliberate misrepresentation, the contract of insurance would become void and the amount paid there under shall be forfeited.  In this policy, the questionnaire is very specific, wherein, it categorically states whether the Complainant in the last 5 years attended doctor or any other medical facility for investigation or diagnostic tests such as X-ray, ultrasound, CT scan, biopsy, ECG, blood or urine etc.  But while answering the above said questions, the Complainant gave negative answers by suppressing the above tests.  The Complainant ought to have disclosed the treatment or the consultation she had with the doctor at Concetta Hospital.  But in the instant case, the Complainant deliberately answered the questionnaire as ‘No’.  Further we also observed that, the Complainant is not an illiterate lady, she being an educated should have read the questionnaire and should have disclosed the full information.  But in the instant case, the documents clearly reveal that, the Complainant not disclosed the tests while consultation with the Concetta hospital at the time of obtaining the policy.

 The Hon’ble Supreme Court of India in the case of Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (2009) 8 SCC 316 has referred the term “proposal form” as defined under the Insurance Regulatory and Development Authority, 2002 as a ‘form’ to be filled in by the proposer for insurance, for furnishing all material information required by the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted, and observed that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is ‘material fact’.  If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form”. 

Similarly, it is a settled position of law that, in interpreting documents relating to a contract of insurance, the duty of the Court to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.  Further the insurance policy has to be construed having reference only to the stipulations contained in it and no artificial far fetched meaning could be given to the words appearing in it.  In the instant case, the terms of the contract have to be construed strictly without altering the nature of the contract as it may affect the interest of parties adversely.  The Complainant intentionally suppressed the material information while submitting the policy.  Under that circumstances, it is the decision of the insurance company to accept or not to accept the subject policy.  But in the instant case, the Insurance Company is not ready to renew the policy because the Complainant has suppressed the material information with regard to her health.  Under that circumstances, we hold that there is no deficiency on the part of the Opposite Party Company and the contract of insurance is void. 

On perusal of the terms and conditions of the policy a sum of Rs.3,00,000/- covered under the head ‘critical illness’.  However, we have perused the terms and conditions of the policy, wherein, ‘critical illness’ means, the signs and symptoms of which 1^st commence more than 180 days following the issue date or the commencement date or date of any re-instatement of this policy, whichever is the latest and shall include either the first diagnosis of any of the following illness or first performance of any of the covered surgeries stated below as stated supra.

          From the above contract of insurance policy, it clearly states that if the signs and symptoms of an illness appear post / after 180 days from the policy issuance, the insured is entitled for upto Rs.3,00,000/-.  No doubt, chronic renal failure which is one of the critical illness under the policy but the documents produced by the parties before this Forum i.e., the outpatient record of Concetta Hospital i.e., Ex R5, the insured was underwent a blood test on 03.12.2006 – blood - urea - 96 mg/dl, creatinine – 4 mg/dl, she also underwent a ultra sonography of the abdomen as per which she had Grade II  renal parenchymal disease (kidney / renal disease) and she was referred to KMC hospital for further management.  Apart from the above, the outpatient department record issued by the Concetta Hospital dated 25.2.2005 the Complainant had undergone a consultation in the above said hospital and they have advised a few blood tests which were blood - urea 40 units and creatinine - 1.5 units and thereafter she followed up regularly in the hospital for her illness.  She also subsequent consultation on 04.05.2005, 07.6.2005 and 16.7.2005.  The tests noted in the case sheets are kidney related specific blood tests, which suggests that the insured had symptoms and signs which were kidney related and had undergone relevant tests for those.  She also undergone outpatient consultation in the above said hospital.  The various consultations in Concetta Hospital clearly reveal that, the Complainant had a signs and symptoms at the time of commencement of the policy and not after 180 days of the policy.  Under that circumstances, she is not entitled under the head ‘critical illness’. 

In view of the above discussion, we hold that there is no deficiency, the rejection of the claim of the Complainant appears to be correct in both the cases and hence the complaints deserve to be dismissed. 

6.       In the result, we pass the following:                          

ORDER

            The complaints are dismissed.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 15 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 12^th day of May 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mrs.Meira Veigas – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 28.08.2008: Letter issued by the Opposite Party to the Complainant.

Ex C2 –               : Insurance Policy bearing policy No.C001606432

Ex C3 – 20.04.2009: Letter issued by the Opposite Party to the Complainant.

Ex C4 – 16.03.2009: Certificate issued by Dr.Sr.Lifian Sequeira, Medical Officer, Concetta Hospital, Kinnigoli in favour of the Complainant.

Documents produced by the Complainant:

Doc. No.1 – 11.12.2006: Discharge summary issued by K.M.C. Hospital.

Doc. No.2 – Out patient record issued by Concetta Hospital, Mulky.

Doc. No.3 – Copy of the abdominal scan report.

Doc. No.4 – Report given by Department of Radio diagnosis and imaging, KMC.

Witnesses examined on behalf of the Opposite Party:

RW1 –  Sri.Rajesh Dhane  – Authorized Legal Representative of the

Opposite Party.

Documents produced on behalf of the Opposite Party:   

Ex R1 – 21.06.2006: Copy of application form submitted by the

                                 Complainant.

Ex R2 – 10.06.2006: Policy data.

Ex R3 – 25.02.2008: Letter of the Complainant to the Opposite Party.

Ex R4 – 27.03.2008: Copy of the letter issued by the Opposite Party to the Complainant.

Ex R5 -                 : Copy of the out-patient record of the Complainant issued by Concetta Hospital, Kinnigoli (2 sheets).

Ex R6 -                 : Copies of the confidential medical report pertaining to the Complainant (46 sheets).

Ex R7 – 05.06.2008: Copy of the letter issued by the Opposite Party to the Complainant.

Ex R8 & R9 -         : Copies of the letters issued by the Opposite Parties to the Complainant (2 in numbers).

Dated:12.05.2011                            PRESIDENT