Samaresh Kumar Mitra,  Member:

              The case of the complainant is that he is a policy holder of OP No.1 and received the insurance policy under the “Gold plan Scheme’ in which Op No.3 is the authorized agent of OP No.1 and used to collect premiums from the complainant. The said policy was valid from 13.2.2009 to 12.2.2010. During the coverage of insurance it has been detected that the complainant has been suffering from “C.A.Tongue”. The complainant made contract with Dr. S.K. Saidul Islam and admitted for operation of SQ Cell C.A. left lateral margin of Tongue at Belview Clinic , Kolkata for a period from 21.9.09 to 23.9.09. Thereafter for better treatment and as per advise of the treating doctor he went to Mumbai and admitted to Breach Candy Hospital on 04.10.2009 and discharged on 09.10.2009 and for such treatment a sum of Rs.1,36,947.90 had to  expend. Including hospital bill he had to expend a sum o Rs.162377/- towards is treatment. He averred that he never consumed alcohol, tobacco and any other drugs throughout his life so he possesses a sound physique. As the OP has no tie with the breach candy hospital so he advised the complainant to make payment of his medical expenses from his own pocket and to claim the same later on. After returning home he submitted a claim towards medical expenses by a letter dt.25.10.2009 alongwith all documents towards his claim. The OP by a letter dt.05.01.2010 informed that his claim has been turned down as because the complainant was a tobacco addicted person and so cause of cancer is because of tobacco addiction and the same is preexisting. Then the complainant by a letter dt.19.01.2010 denied the allegations of the OP and requested to disburse his claim as he never consumed tobacco, alcohol and any other drugs throughout his life. He also averred that the OP No.3 has received payment of Rs.5639/- in favour of OP No.1 towards underwriting loading of Rs.2321/- considering that the claim as made by the complainant has been disbursed to him. It is the procedure that if any mediclaim was disbursed then in that case the Ops are entitled to make loading charge to the extent of 70% of the actual premium. According to him the cause of rejection of claim towards disbursement of medical expenses by the Ops is totally illegal and that too without having any proof that the complainant is addicted to tobacco or other drugs or that the cause of CA Tongue is preexisting which is totally false, vexatious and manufactured for the purpose of rejection of claim of the complainant. After getting the letter of rejection of claim the complainant became hopeless and suffered serious shock, mental pain and agony as he never consumed tobacco, alcohol and drugs but the OP blamed such for escaping from his liability to pay claim. The conduct of the OP No.1&2 in disbursing the claim of the complainant is deficiency of service so getting no alternative the complainant filed the instant complaint before this Forum for redressal. He prayed a direction upon the OP No.1&2 before this Forum an award of Rs.162377/- including interest @ 18% till realization in favour of the complainant for the cost of treatment borne by the complainant, an award of Rs.20000/- for mental pain, agony, anxiety and harassment, another Rs.5000/- for additional expenses relating to his treatment and other reliefs as this Forum deems fit and proper. 

   The OP appeared by filing written version denied the allegations as leveled against him and he averred that on receiving the claim intimation from the petitioner and considering all the medical documents including discharge certificate, it is observed that the petitioner/ patient was suffering from CA, Tongue 2 months back. It is evident from the records that the patient/petitioner was addicted with tobacco chewing and it was the sole cause for CA Tongue. But in the proposal from the petitioner answered in negative and thus willfully suppressed the material facts thus violated the terms and conditions of the policy. Thus the cause of CA, tongue being preexisting this OP company refer the matter to Medi Assist who also investigated the matter and came to a same conclusion. Thus as per policy exclusion No.10 and policy exclusion 11 the Medi Assist rightly repudiated the claim vide its letter dated 05.01.2010 and thus caused no deficiency in service as alleged. He further assailed that the issuing office situated outside the jurisdiction of this Forum and Ops have no branch office or carries on business or personally works for gain within the territorial jurisdiction of this Forum. The petitioner has not  fulfilled the terms and condition of policy and by suppressing the actual material facts and with malafide intention only to gain illegally filed the instant petition before the Ld Forum.

 The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

The OP filed evidence on affidavit which is nothing but replica of his written version.

Both sides filed written notes of argument which are taken into consideration for passing final order.

              Argument as advanced by the agent of the complainant heard in full.

              From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant   Sita Ram Agarwal ‘Consumer’ of the opposite party?

    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards

        the Complainant?

    4. Whether the complainant proved his case against the opposite party, as alleged and whether

     the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based

   on the above perspectives.

       (1).Whether the Complainant  Sita Ram Agarwal is a ‘Consumer’ of the opposite party?                                                                          ‘Consumer’ of the opposite party?

              From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP  No.1 insurance company, Op No.2 is the TPA appointed by the OP No.1 and OP No.3 is the agent of the OP No.1, so being a consumer he is entitled to get service from the OP insurance company being the service provider. .

          (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

      Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP Rs.162377/- including interest @ 18% till realization in favour of the complainant for the cost of treatment borne by the complainant, an award of Rs.20000/- for mental pain, agony, anxiety and harassment, another Rs.5000/- for additional expenses relating to his treatment and other reliefs and other reliefs as this Forum deems fit and proper ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

     (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service            towards the Complainant?  

                  The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the complainant  insured his life before the said company without any doubt.                                                                                                                                                                                                                                                                                                                                                                                                                                                                 It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

             The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            That the observation of the Apex court in Satwant Kaur’s case as :-

                “thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses.”

      This complainant  being a  policy holder of OP No.1 and received the insurance policy under the “Gold plan Scheme’ in which OP No.3 is the authorized agent of OP No.1. The said policy was valid from 13.2.2009 to 12.2.2010. During the coverage of insurance when he was suffering from CA, Tongue he received treatment from the doctor of Belview Clinic at first thereafter he went to Breach Candy Hospital Mumbai.. As the OP has no tie with the breach candy hospital so he advised the complainant to make payment of his medical expenses from his own pocket and to claim the same later on. After returning home he submitted a claim towards medical expenses by a letter dt.25.10.2009 alongwith all documents towards his claim. The OP by a letter dt.05.01.2010 informed that his claim has been turned down as because the complainant was a tobacco addicted person and so cause of cancer is because of tobacco addiction and the same is preexisting. Then the complainant by a letter dt.19.01.2010 denied the allegations of the OP and requested to disburse his claim as he never consumed tobacco, alcohol and any other drugs throughout his life. He also averred that the OP No.3 has received payment of Rs.5639/- in favour of OP No.1 towards underwriting loading of Rs.2321/- considering that the claim as made by the complainant has been disbursed to him. It is the procedure that if any mediclaim was disbursed then in that case the Ops are entitled to make loading charge to the extent of 70% of the actual premium. According to the complainant the cause of rejection of claim towards disbursement of medical expenses by the OPs is totally illegal and that too without having any proof that the complainant is addicted to tobacco or other drugs or that the cause of CA Tongue is preexisting which is totally false, vexatious and manufactured for the purpose of rejection of claim of the complainant. After getting the letter of rejection of claim the complainant became hopeless and suffered serious shock, mental pain and agony as he never consumed tobacco, alcohol and drugs but the OP blamed such for escaping from his liability to pay claim. The conduct of the OP No.1&2 in disbursing the claim of the complainant is deficiency of service so getting no alternative the complainant filed the instant complaint before this Forum for redressal.   The OP denied the allegations as leveled against him and he averred that on receiving the claim intimation from the petitioner and considering all the medical documents including discharge certificate, it is observed that the petitioner/ patient was suffering from CA, Tongue 2 months back. It is evident from the records that the patient/petitioner was addicted with tobacco chewing and it was the sole cause for CA Tongue. But in the proposal form the petitioner answered in negative and thus willfully suppressed the material facts thus violated the terms and conditions of the policy. Thus the cause of CA, tongue being preexisting this OP company refer the matter to Medi Assist who also investigated the matter and came to a same conclusion. Thus as per policy exclusion No.10 and policy exclusion 11 the Medi Assist rightly repudiated the claim vide its letter dated 05.01.2010 and thus caused no deficiency in service as alleged. He further assailed that the issuing office situated outside the jurisdiction of this Forum and OPs have no branch office or carries on business or personally works for gain within the territorial jurisdiction of this Forum. The petitioner has not fulfilled the terms and condition of policy and by suppressing the actual material facts and with malafide intention only to gain illegally filed the instant  complaint petition before the Ld. Forum.

  On the face of the case record it appears that the claim of the complainant was repudiated by the OP as the OP by its TPA investigated the case of the complainant which reveals that the complainant was habituated in taking Tobaco,  Alcohol; and other drugs before the acceptance of  policy. During the period of filing the proposal form the complainant never stated his addiction it tantamount to suppression of material fact which vitiate the  that violates the terms and condition of the insurance policy. After getting insurance policy the complainant during the course of treatment at Belview Clinic he came to know that he was suffering from CA,Tongue as a result he was operated at the said clinic and as per their advice he went to Breach Candy Hospital, Mumbai for further treatment. The complainant expend from his own pocket and after treatment he filed the claim Form before the Op which was turned down by the OP on the pretext that the complainant was suffering from CA,Tongue before the acceptance of policy . So the Claim of the complainant was rightly repudiated by the OP.

      We do not find suppression of any material fact by the insured in the proposal form and OP has committed deficiency in repudiating claim on flimsy grounds.

     Had he been suffering from CA, Tongue prior to acceptance of policy then what was his problem to receive treatment from date knowledge of suffering. No one would like to remain without treatment when he has sufficient funds to take treatment.

     During the period of argument the advocate on behalf of the OP assailed that the doctor opined that the policy holder have habit of taking Tobaco prior to suffering from CA,Tongue it does not mean that the Tobaco leads to cancer. Merely because one is having CA, Tongue, may be without his knowledge, it cannot be said that ultimately he will become  cancer patient. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the LA that he was suffering from CA, Tongue. There is no material to show that there was any earlier treatment in respect of any cancer symptom. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the OP Company was having no legs to stand so it is rightly discarded by this Forum. 

           It was pleaded on behalf of the complainant that if an insured is not aware of an ailment he may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.

           No documents in respect of treatment of the complainant before the acceptance of Proposal Forum are in the case record which corroborates that the complainant used to consume alcohol, tobacco or any other drugs. The OP failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form LA supplied the correct information regarding his health.

          So the life assured was unaware of his disease whether he was suffering from CA, Tongue and his illness at the material point of time i.e. taking the insurance policy does not arise. He was not aware whether he will suffer from  CA, Tongue in the future and he/ his nominee have to make claim before the Insurance Company for which the Insurance Company by repudiating his/complainants claim destructed the myth of utmost on good faith.

         Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence not did it prove that the said treatment had any nexus with the cause of CA,Tongue .This Forum thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in not settling the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.     

      We also carefully went through the judgment citation submitted before us by OP No.1, i.e. i Sonic Surgical Vs. National Insurance Company Ltd (2010)3 WBLR (SC) 58 ii). Rahul Parikh V/S- Shelter makers Pvt Ltd. 2011(I) CPR 87.(SC) iii). C. G. State Power Distribution -V/S- Fattechand Bagdi ,2012(2) CPR,174 ( SC)

      So we are in a considered opinion to allow the complaint as policy holder was not suffering from any disease when he signed the policy proposal of this OP Insurance Company and OP could not prove the same. We direct the OP Insurance Company i.e. the OP No.1 to pay the sum of Rs.162377/- including interest @ 10% from the date of repudiation of claim by the OP till realization in favour of the complainant.

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

                    The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party is liable to pay the ordered amount. 

ORDER

                    Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite party No.1 with a litigation cost of Rs.5,000/-.

                  The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1 is directed to pay the sum amounting to Rs.162377/- including interest @ 10% from the date of repudiation of claim by the OP till realization in favour of the complainant  within 45 days from the date of order.

                No other reliefs are awarded to the complainant for harassment and mental agony.

             OP No.2&3 are exonerated from this Proceeding.

                At the event of failure to comply with the order  the Opposite Party No.1  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me. – Samaresh Kr. Mitra, Member.