D.O.F. 24.04.2008
D.O.O. 27.11.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 27th day of November, 2012.
C.C.No.87/2008
Kunhiparambeth Kareem,
S/o. Late Abdulla,
‘Sincere’, P.O. Peringathur,
Kannur – 670675
Through P.A Holder K.K. Najma, : Complainant
W/o. Kareem,
‘Sincere’, P.O. Peringathur,
Kannur – 670675
(Rep. by Adv. P. Ajayakumar)
1. The Branch Manager,
National Insurance Company Ltd,
Keyees Shopping Complex,
Narangappura, Thalassery
(Rep. by Adv. V.V. Gopinathan)
2. M/s. Meddy Assist India Pvt. Ltd. No.406, : Opposite Parties
Chandralayam, Kurishupally road,
Temple lane, Ravipuram,
Cochin.
O R D E R
Sri. K. Gopalan, President.
The complainant lodged this complaint U/s 12 of Consumer Protection Act seeking relief from the opposite party/Insurance Company to pay `70,000 as compensation.
The brief facts of the case is as given below :
Complainant has taken a Universal Health Insurance Policy from 1st opposite party on 06.06.2007. Afterwards he was hospitalized in connection with heart disease and subsequently the claim was filed with all the documents in connection with the same. Claim was rejected without considering the merits of the case, on the ground that the disease of the complainant was preexisting before taking the policy. Lawyer notice was sent on 16.02.2002. But there was no response. Hence this complaint.
After notice of Forum 1st opposite party made appearance and filed version. Though notice was issued after impleading 2nd opposite party, there was no appearance and consequently declared 2nd opposite party exparty. 1st opposite party contended that the complainant obtained the policy by suppressing the material facts. The complainant did not disclose his pre-existing disease at the time of taking policy. If it was disclosed the opposite party would not have accepted the proposal made by the complainant. On scrutiny of the medical records it could be revealed that the disease for which the claim was preferred was an existing disease before the inception of the policy. Therefore, complainant is not entitled for any relief since the material facts were suppressed. Hence to dismiss the complaint.
On the above pleading the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite parties?
2. Whether the complainant is entitled for the remedy as prayed for?
3. Relief and cost?
This is a case once decided allowing the complaint. But 1st opposite party went appeal and the matter remanded for fresh disposal giving liberty to parties to adduce further evidence. Evidence consists of oral evidence of PW1, DW1 and DW2 and Ext.A1 to A25 and Ext.B1 to B7.
Issues No.1 to 3:
It is an admitted case that complainant is the holder of Universal Health Insurance Policy for the period from 17.06.2007 to 06.06.2008. The case of the complainant is that he had undergone treatment during the relevant period of insurance and met with huge amount of expense for treatment. The claim of the complainant was rejected by opposite party on the ground that the disease for which the treatment was taken, had been in existence prior to holding of the policy. Since the disease was pre-existing complainant was not entitled for any claim.
The main contention of the 1st opposite party is that the complainant suppressed material facts regarding ailment of diabetes while submitting for the Universal Health Insurance Policy. He was also relied upon exclusion clauses 4.1 and 4.2 of the terms and conditions of the policy. It is true that 1st opposite party has raised contention that the complainant was having the ailment of diabetes. The point relevant to be considered first of al is that whether it is correct to say that the existence of diabetes was actually suppressed or not. The case of the complainant from very out set is that he was compelled to take the policy due to the compulsion from the opposite party for renewing the insurance policy of the complainant’s vehicle. Legal notice Ext.A3 was sent alleging that it was out of compulsion that the complainant took the policy. It is stated in Para 7 of the version thus “The fact that the complainant was suffering from Diabetes Mellitus etc, were known only to the insured at the time of the proposal. In the cross examination complainant did not hesitate to disclose that he was suffering from diabetes for the last 10 years. It is also brought out in cross examination that the above fact was disclosed at the tune of taking the policy to the then Manager. The said Manager was not examined before the Forum, as to disprove that it was not within the knowledge of opposite party at the time of issuing the policy. DW1 in his cross examination deposed that “Ext.A5 fill sNbvXXv BcmsW¶v IrXyambn ]dbm³ IgnbnÃ.” He also deposed that “lcPn¡mc\v {]taltcmKw DffXmbn t]mfnkn FSp¡pt¼mÄ ]cmXn¡mc³ ]dªpthm F¶v F\n¡p ]dbphm³ km[yaÃ.” When the complainant has the case that the existence of diabetes had been disclosed to opposite party at the time of taking policy opposite party is bound to prove the fact otherwise so as to establish the suppression of material facts. The question is not whether complainant had diabetes or not but whether the same is suppressed or not, which is necessary to be examined. At least opposite party should have been taken step to examine the then Manager in the light of evidence of DW1 that he was not aware of the fact that it was within the knowledge of opposite party while taking the policy. Hence repudiation of claim on the ground of suppression of facts cannot be justified. Hon’ble Supreme Court held in Satwanth Kaur Sandhu Vs New India Assurance Company Ltd “ that the insured is under solemn obligation to disclose true and full information sought in the proposal Form”. The spirit of this decision could have been very well he made use of if the person who filled up the Form has been examined or else the then Manager before whom it was claimed to be disclosed of the existence of the disease if examined.
Moreover, opposite party has not adduced any evidence to prove that the disease for which the complainant had undergone treatment was caused due to the diabetes disease of the complainant. The available evidence does not show that the complainant suffered heart ailment on account of the preexisting disease of diabetes.
In case of fraudulent suppression of material facts, the onus problandi, rests heavily on party alleging the same. Hon’ble Supreme Court in LIC Vs Smt. G.M. Channabasamma, reported in 111(1996) CPJ(SC) held that the burden of proving that the insured had made false representation and suppressed material facts is undoubtedly on LIC of India. Further more, mere concealment of some facts will not amount to concealment of material facts. There is no evidence to show that the insured/complainant had been taking any treatment for heart disease prior to taking the policy. Under such circumstances 1st opposite party/Insurance Company cannot be justified in repudiating the insurance claim on the ground of non-disclosure of pre-existing disease.
Complainant however, did not adduce evidence in connection with the insurance amount if the claim was admitted. As per the evidence of DW2 the liability of opposite party do not exceed more than `10,000 even if the claim is allowed. As per his evidence what is allowed for room rent in general ward is `150 per day. Three days hospitalization complainant deserves for only `450. Two days ICU charge complainant is entitled for `300 per day which means `600. DW2 adduced evidence that for doctor’s fee insured is entitled for only 15% of sum assured which in this case complainant is entitled for `4500. 15% of the sum assured is also allowed for medicine, testing etc. The total amount if calculated as per the evidence of DW2 complainant is entitled for a total amount of `10,050 only. Complainant is not able to give any evidence contrary to the above given assessment. Hence we are of opinion that complainant is entitled for a claim of `10,050 (Rupees Ten Thousand Fifty only). Complainant is also entitled for an amount of `500 as cost of this proceedings. Hence issues No.1 to 3 are answered in favour of complainant and order passed accordingly.
In the result, the complaint is allowed, directing the opposite party to pay an amount of `10,050 (Rupees Ten Thousand Fifty only) as insurance claim along with a sum of `500 (Rupees Five Hundred only) as cost of the proceedings within one month from the date of receipt of this order failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Dated this the 27th day of November, 2012.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Copy of the policy schedule issued by Op.
A2. Repudiation Letter dated 09.02.2008.
A3. Copy of the lawyer notice sent to OP.
A4. Postal receipt.
A5. Proposal form and premium.
A6. Claim form submitted by complainant.
A7. Discharge summary.
A8. Copy of Discharge summary.
A9. Copy of Medical Certificate dated 22.10.07
A10. Coronary Angioplasty Report.
A11 & A12. Copy of Consultation sheet.
A13 to A15. Laboratory reports.
A16. Bill issued from Sahakarana Hrudayalaya.
A17. Copy of accounts ledger.
A18. Copy of receipt.
A19 to A.25. Receipts issued from Narayana Hrudayalaya.
Exhibits for the opposite parties
B1. Copy of the letter dated 09.01.08.
B2. Postal acknowledgment card.
B3. Policy with conditions.
B4. Medical opinion dated 10.12.07 by Dr.Shenoy.
B5. Tabulation sheet.
B6. Repudiation letter issued by OP dated 12.12.87
B7. Policy full text.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. T.A. Sankarankutty
DW2. T.V. Suresh.
/forwarded by order/
SENIOR SUPERINTENDENT
