KUNDAN KUMAR KUMAI

This is an appeal under section 15 of the Consumer Protection Act, 1986, preferred against the order and the judgement, dated 05/08/22, passed by the Ld. D.C.D.R.F., Uttar Dinajpur, in CC/46/2019.

Brief facts of the appellant’s case are that, the appellant/complainant, in the year 2011 had purchased one LIC Policy viz. Jeevan Arogya, vide Policy No. 456669981 from the respondent/insurance company, in the name of his wife and himself, and started paying premiums and the last premium was paid on 05/08/19, after receipt of the repudiation letter. The policy had been purchased after all the formalities had been fulfilled, as per the respondent/insurance policy guideline.

In the month of July, 2018, the wife of the appellant Mrs. Laboni Roy, felt some pain in the right side of her tongue and had difficulties in taking her food. She along with the appellant/complainant, proceeded to Chennai for treatment and had gone to Shri Ramachandra Medical Center in Chennai, on 01/09/18, where several investigations including biopsy had been done. From the tests, the doctor had diagnosed that, she was attacked by Squamosa Cell Carcinoma and surgery was the only way of treatment. Following which, she had been admitted on 17/09/18 and on 19/09/18, surgery had been performed. After surgery she had been shifted to ICU and lastly shifted to a cabin. On 09/10/18, she had been discharged from the hospital, but the appellant/complainant, along with his wife stayed back, for the next check-up and finally, came to Kolkata. He had then taken his wife, to Apollo Gleneagles, Kolkata, where she had been given 30 nos. of radiations, as prescribed by the doctors, of Shri Ramachandra Medical Center, in Chennai.

After returning from Kolkata, the appellant/complainant, submitted all documents with claim form and an application for delay on 20/08/18, to the respondent no 1/insurance company. On 30/10/18, the respondent no.2/insurance company, acknowledged the receipt of the claim documents and had sent the same to their TPA, for deciding the admissibility of the claim. The name and number of one Ayan Saha had also been enclosed.

The appellant then started contacting his agent viz. Swapan Saha and Krishna Banerji, for his claim and came to know that the claim, was in the processing stage. But, as there was no response, with regard to his claim, he tried to contact the said Ayan Saha, who did not respond and he even sent SMS, with no response. He also sent a letter on 05/02/90, to the respondent no.2/insurance company, but there also, there was no response. He physically met the respondent no.1/insurance company, on several occasions, in vain. On 25/03/90, he wrote a letter to the respondent no.2/insurance company, but there was no response. On 20/05/19, the appellant along with his agent Swapan Saha, met with the respondent no.1/insurance company, regarding his claim, but they did not get any reply from him. On 27/05/19, the appellant received a letter from the respondent no.1/insurance company, wherein the claim had been repudiated, on the ground of “preexisting illness irrespective of prior medical treatment or advice for the patient”. The appellant/complainant then pleaded with the respondent no.1/insurance company, with no success. The respondent/insurance company, had thus harassed the appellant/complainant, as the repudiation of the claim had been after 7 months, from the date of claim and for which reason the appellant/complainant, had been subjected to mental and physical harassment. Moreover, the total expenditure of treatment had been Rs.5,44,977.46 (Rupees five lakhs forty-four thousand nine hundred seventy-seven and paise forty-six) only being OPD bill of Rs.34,460/- (Rupees thirty-four thousand four hundred sixty) only and in-patient bill being Rs.5,09,517.46 (Rupees five lakhs nine thousand five hundred seventeen and paise forty-six) only.  The respondent/insurance company had therefore committed unfair trade practice, for which the appellant/complainant, had filed this instant case with necessary prayers.

The respondent nos. 1&2/insurance company, had appeared to contest the claim by filing written version, wherein they denied the appellant/complainant’s case and admitted only the purchase of Jeevan Arogya LIC Policy. It is also stated that it was mandatory to submit the proposal form, stating full heath details of the proposal of all insured persons, but the appellant/complainant, had mentioned ‘no’ against the question whether the insured had suffered from hyper tension. But the discharge certificate, issued by Shri Ramachandra Medical Center in Chennai showed that the insured, had been on medication, during the medical history of the last 8 years. This was in violation of section 17 of the Indian Contract Act and had also relied in the judgement passed by the Hon’ble Supreme Court in Duleria Debi Vs. Gynendra Singh reported in AIR 1990 SC/1173 and prayed for dismissal of the claim.

After hearing the Ld. Advocates and ongoing through the evidence on record, the Ld. D.C.D.R.F., Uttar Dinajpur, passed the impugned order, whereby the case of the appellant/complainant had been dismissed.

Being aggrieved by the above order, the appellant/complainant, preferred this instant appeal, on the ground that the Ld. D.C.D.R.F., Uttar Dinajpur, had erred in law and facts, while passing the impugned judgement.

Decisions with reasons

The Ld. advocate for the appellant/complainant, at the time of final hearing, had submitted that the Ld. DCDRF, Uttar Dinajpur, had erroneously interpreted the non-disclosure of hypertension and hypothyroidism to be crucial even though the insured had been afflicted by Squamosa Cell Carcinoma and therefore erred while passing the impugned judgement. He therefore prayed for allowing the appeal.

Since, the appeal had been fixed for ex-parte hearing against the respondent/ insurance company and even though they had appealed for review of the said order, the same had been rejected, on the ground, that this Commission had no jurisdiction to review its own order.

On perusal of the impugned order, it transpires that the Ld. Forum below had dismissed the case mainly on the ground, of failing to submit the pre-existing illness of hypertension and hypothyroidism at the time of submitting the proposal for policy and by relying in the judgment passed in Duleria Debi Vs. Gynendra Singh reported in AIR 1990 SC/1173 and invoking the provisions of the section 45 of the Insurance Act, 1938.

To start with the insured had been diagnosed with Squamosa Cell Carcinoma which had occurred after 7 (seven) years from the date of purchase of the policy. Moreover, there was no evidence linking, that such Carcinoma, had resulted from hypertension and hypothyroidism. Under the circumstance, the Ld. Forum below appears to have erroneously decided that the appellant/complainant, had with fraudulent intention, made false statement, when the above had not been declared at the time of proposal.

On the contrary, section 45 of the Indian Insurance Act, 1938, completely bars the insurance companies, from questioning the policy, after expiry of two years from the date of commencement. In the instant case i.e., the commencement of the policy was on 02/8/2011 and the repudiation had been done on 27/5/19, thereby barring the respondent/insurance company from raising the dispute of non-disclosure, as per the provisions of section 45 (forty-five) of the Insurance Act, 1938.

As regards the application of the principles of the judgement passed by the Hon’ble Supreme Court is concerned, the same appears to be non-applicable, in view of the different facts in issue.

Hence for the above reasons the contention of the Ld. DCDRF, Uttar Dinajpur in the impugned judgement cannot be sustained and therefore the impugned judgement needs to be set aside.

As regards the claim of Rs.5,44,977.46 (Rupees five lakhs forty-four thousand nine hundred seventy-seven and paise fort-six) only is concerned the claim application had been with the respondent/insurance company for the long 7 (seven) months and when the repudiation had been done, the amount of the claim was not disputed. Under the circumstance, the appellant/complainant is entitled to the above amount along with Rs.3,00,000/- (Rupees three lakhs) only on account of mental and physical harassment and litigation charge of Rs.20,000/- (Rupees twenty lakhs) only.

As a result, the instant appeal succeeds

                                                         It is therefore

                                                             Ordered

That the instant be and the same is allowed ex-parte with costs.

The impugned order is hereby set aside and the respondent/insurance company, is directed to jointly and severally pay Rs.5,44,977.46 (Rupees five lakhs forty-four thousand nine hundred seventy-seven and paise forty-six) only towards medical expenditure, Rs.3,00,000/- (Rupees three lakhs) only, on account of mental and physical harassment and litigation charge of Rs.20,000/- (Rupees twenty thousand) only. The above amount shall be paid within 45 (forty-five) days from the date of receipt of this order, failing which interest @ 9% per annum would be attracted till realization.

Copy of this order be sent to the parties, free of cost.

Copy of this order be sent to the Ld. D.C.D.R.F., Uttar Dinajpur for necessary compliance.