Order by:

Sh.Amrinder Singh Sidhu, President

1.       Smt.Darshana Jain, complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that the husband of the complainant took a loan from the HDFC Bank sister concern bank of Opposite Parties Branch Chamber Road, Moga for its business purpose and regarding that a loan account no.82324318 was issued and the loan amount was financed by the said bank to the husband of the complainant alongwith other co-borrower as mentioned in the said loan account. At the time of financing said loan as mentioned above, the agent of the HDFC Bank conveyed the husband of the complainant that one policy regarding the insurance of medical expenses and other is also required to be get issued alongwith said loan, which belongs to HDFC Ergo GIC Ltd. its sister-concern and the husband of the complainant agreed for the same. Accordingly,  opposite party no.3 HDFC Bank and Opposite Parties no.1 & 2 issued the above mentioned policy in the name of husband of complainant after proper medical test and after completing other formalities and also receiving the first premium for an amount of Rs.9,998/- and also issued receipt acknowledging the receiving of said payment of premium. In this policy the coverage was given regarding the major medical illness and procedures for an amount of Rs.1,06,990/- alongwith other coverage and assurance was given by opposite party no.3 i.e. agent of opposite party no.1 at Moga and told that whenever you got any major medical illness or any other illness in future during the policy period, you will be secured upto an amount sum assured as mentioned in the policy. In the month of August, 2017 husband of the complainant suddenly got abdomen problem and pain in his foot as one of the finger become totally black and dead, due to which he was admitted in Mayo Health Care Super Specialty Hospital, Chandigarh, where it was first time diagnosed by the concerned doctors that he was suffering from Kidney Problem and Foot Gangrene Problem in his foot. So, it was advised by the doctors to treat the patient through (Haemo Dialysis) and also gave medicines to the husband of complainant with a follow up and advised to do dialysis twice in a week starting from November 2017. The complainant spent approximately Rs.2 lakh on said treatment of her husband alongwith the medicines etc. during the policy period. After spending said amount from his own pocket and after discharging from the hospital husband of the complainant lodged a claim in the end of Month of November, 2017 for the payment of expenses which was insured under the policy in question as the said illness was also came under the major medical illness alongwith original bills required by the said Opposite Parties to process the claim. The Opposite Party no.2 registered the said claim vide claim no.C291817001127 and also issued a letter dated 23.12.2017 and raised demand of some more documents for processing the claim and husband of the complainant also provided such documents to the Opposite Parties and upon this the Opposite Parties assured the husband of complainant to pay the claim amount as early as possible. Thereafter,  suddenly on 11.02.2018 the husband of the complainant died and after his death, complainant received a letter dated 21.03.2018 issued by Opposite Party no.1  & 2 in the name of husband of the complainant and came to know that they repudiate the claim of the complainant on false and frivolous grounds by mentioning that as per the case summary dated 13.11.2017 insured was diagnosed for chronic kidney disease since 2013 and diabetes since 20 years and the policy inception in this case is 09.02.2017, hence the condition is pre-existing disease and the same is excluded under the policy as per section 3 of the Exclusion Clause. It is a imaginary fact of Opposite Parties to repudiate the genuine claim of the complainant. Moreover, the husband of complainant was got no problem prior to August 2017 and it was only first time diagnosed by the Mayo Hospital in October 2017 and moreover it is also pertinent to mention here that at the time of taking policy there was proper medical check-up was done and after proper medical check-up the policy was issued by the Opposite Parties to the husband of the complainant. Even after receiving all the required documents and completing the formalities by the husband of the complainant the claim has been repudiated illegally on false and frivolous grounds only to forfeit the genuine claim of the complainant. Thereafter the complainant visited the Branch of Opposite Parties in HDFC Bank and informed about the death of her husband i.e. insured and also made requests regarding the settlement of the claim, but the Opposite Parties kept mum and revealed nothing in this respect to the complainant. Ultimately on 01.05.2018, the complainant issued a legal notice to the Opposite Parties vide registered post, but no reply has been received by the complainant for the settlement of the said claim. In spite of providing all the necessary document and information sought by the Opposite Parties from the complainant, the opposite parties are not doing any needful for the settlement of the claim for which the Opposite Parties are jointly and severally liable to pay the same as per terms and conditions of the policy in question.  As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       To pay an amount of Rs.1,06,990/- regarding the medical illness alongwith the other coverage details as mentioned in the policy schedule.

b)      An amount of Rs.One lakh as compensation for mental tension, harassment and agony suffered by the Complainant.

c)       An amount of Rs.15,000/- as litigation expenses.

d)      Or any other relief to which this District Commission may deem fit be also granted to the Complainant in the facts and circumstances mentioned above.      

2.       Opposite Parties  No.1 and 2 appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that a claim was received from the insured. Further contended  that upon scrutiny of the medical documents as provided by the insured/deceased, it was found that the insured was treated and suffering from Chronic Kidney Disease, T2DM and CAD (Coronary Artery Disease). Further from the submitted documents, it was found that the insured was a K/c/o CKD since 2013 and also the insured suffered from Diabetes since 20 years. Further it is stated that the treatment against which the present claim was filed was also related to the ailment of Chronic Kidney Disease and Diabetes, as the treatment taken by the applicant and the ailment diagnosed was Chronic Kidney Disease, T2DM and CAD (Coronary Artery Disease) thus, the claim was found not payable.  Further averred that the claim was repudiated under the ambit of specific exclusion clause as mentioned under the policy terms and conditions. As the treatment underwent by the insured was already existing before the policy inception and thus the illness was PED. However as per policy terms and conditions the company is not liable to make any payment on account of any Pre-existing Illness. Clause C of the policy under Exclusion clearly states that:-

“C. Exclusions Applicable to Section 3

The Company shall not be liable to make any payment directly or indirectly arising out of the following events:

1. Any Pre-Existing Illness- Any Insured Event arising on account of or in connection with any Pre-Existing Illness.”

The complainant had a duty of disclosure of information related to all kinds of pre-existing diseases i.e. “CKD and Diabetes” which the applicant had prior to commencement of the policy. That the applicant had a duty to disclose as the complainant had agreed to abide by the terms and conditions of the policy. The claim attracts general policy conditions Section 10 r ii of general conditions is as follow:-

“GENERAL CONDITIONS APPLICABLE

2.         Incontestability and Duty of Disclosure

This policy shall be voidable at the option of the company in the event of mis-representation, mis-description or nondisclosure of any material particular by the insured, in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld. Any person who, knowingly and with intent to defraud the insurance company or other persons, files a proposal for insurance containing any false information, or a claim being fraudulent or any fraudulent means or devices being used by the insured or any one acting on his behalf to obtain any benefit under this policy/or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act which will render the policy voidable at the insurance company’s sole discretion and result in a denial of insurance benefits of a claim is in any respect fraudulent, or if any fraudulent or false plan specification, estimate, deed, book, account entry, voucher invoice or other document, proof or explanation is produced, or any fraudulent means or devices are used by the insured, policyholder, beneficiary, claimant or by anyone acting on their behalf to obtain any benefit under this policy, or if any false statutory declaration is made or used in support thereof, or if loss is occasioned by or through the procurement or with the knowledge or connivance of the insured, policyholder, beneficiary, claimant or other person, then all benefits under the policy are forfeited.”

As such, in terms of the said proviso of the insurance policy, the insurance company has repudiated the claim of Complainant  in a proper manner, vide letter dated 21.03.2018.

3.       None has come present on behalf of Opposite PartyNo.3 despite service, hence Opposite Party No.3 was proceeded against exparte vide order dated 27.07.2018 of this District Commission.

4.       In order to  prove  her  case, the complainant has placed on record  her affidavit Ex.C1/A,  copy of policy schedule Ex.C1, copy of certificate Ex.C2, copy of sanction letter Ex.C3, copy of certificate Ex.C4, copies of bills Ex.C5 to Ex.C62,  copy of letter Ex.C63, copy of repudiation letter Ex.C64, copy of legal notice Ex.C65, copies of postal receipts Ex.C66 to Ex.C68, copy of death certificate Ex.C69,  copies of aadhaar card Ex.C70 and Ex.C71.

5.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties  No.1 and 2 also placed on record affidavit of Sh.Pankaj Kumar Ex.OP1/A, copy of OPD Ex.OP1, copy of policy schedule Ex.OP2,  copy of certificate Ex.OP3, copy of letter Ex.OP4.

6.       We have heard the ld.counsel for the parties, perused the written arguments submitted by the Complainant as well as Opposite Parties No.1 and 2   and also  gone through the documents placed  on record.

7.       Perused the  written arguments submitted on behalf of the complainant which are on the lines of averments made in the complaint and during the course of arguments, ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 and 2 are limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Parties  No.1 and 2. Further contended that at the time of  issuance of the said card to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. On merits, it was contended that the husband of complainant was a businessman and he took a loan from the HDFC Bank sister-concern bank of Opposite Parties, branch Chamber Road, Moga for his business purpose and regarding that a loan account No.82324318 was issued and the loan amount was also financed by the said bank to the husband of complainant along-with the other co-borrower, as mentioned in the said loan account. Copy of Ex.C-1 & C-2 refers where is a specific reference about the loan account no.82324318 & Ex.C-2 is a certificate issued by HDFC Ergo Dt.02-10-2017 regarding the deduction of Income Tax U/s 80(D) meaning thereby at the time of taking loan husband of complainant on the instructions of Opposite Party no.3 took the policy in question from the Opposite Parties No. 1 & 2. Further contended that at the time of financing said loan as mentioned above, the HDFC Bank Branch Chamber Road, Moga through its manager/ loan agent conveyed the husband of complainant that one policy regarding the insurance of medical expenses and others is also required to be get issued along-with the said loan, which belongs to HDFC Ergo GIC Ltd. our sister-concern, so to complete the said requirement, husband of complainant agreed for the same and the Opposite Party no.3 as directed by the HDFC Bank and also agent of Opposite Parties  No.1 and 2 and office in the said bank at Moga, issued the above mentioned policy in the name of husband of complainant after proper medical test and after completing other formalities and also receiving the first premium for an amount of Rs.9998/-and also issued receipt acknowledging the receiving of said payment of premium. Copy of Ex.C-3 refers. It is also pertinent to mention here that the policy in question was issued by the Opposite Parties  at their own and also after due medical tests conducted upon the husband of complainant by the doctor of Opposite Parties. Moreover, the policy in question is regarding the major medical illness & procedure policy which means the policy in question had not been issued without medical tests etc., so the ground of repudiating the claim of complainant by the Opposite Parties  is fake one and is just to forfeit the genuine claim of complainant. The above mentioned policy was issued by the Opposite Parties  to the deceased husband of complainant and in this policy the coverage was given regarding the major medical illness and procedures for an amount of Rs.1,06,990/- along-with other coverage detail of which is mentioned in the policy schedule itself and also assured by the Opposite Party No.3 i.e. agent of Opposite Party.no.1 at Moga that whenever you got any major medical illness or any other illness in future during the policy period, you will be secured upto an amount sum assured as mentioned in the policy, which policy is not disputed to be issued to the husband of complainant by the Opposite Parties. That in the month of August 2017 husband of complainant suddenly got abdomen problem along-with the suffering of pain in his foot as one of the finger become totally black and dead, due to which he was admitted in Mayo Health Care Super Specialty Hospital Chandigarh where it was first time diagnosed by the concerned doctors that he was suffering from Kidney Problem and of foot gangrene problem in his foot. So, it was advised by the doctors to treat the patient through (haemo dialysis) and also gave medicines to the husband of complainant with a follow up and advised to do dialysis twice in a week starting from November 2017. Copy of Ex.C-4 refers. That the complainant spent approximately Rs.2 Lac on the said treatment of her husband along-with the medicines etc. during the policy period. After spending said amount from his own pocket and after discharging from the hospital, husband of complainant lodged a claim in the end of month of November 2017 for the payment of expenses which was insured in the policy in question as the said illness was also came under the major medical illness, along-with all the documents as required by the Opposite Parties  No.1 and 2 and asked for by the Opposite Party  no.3 and along-with the original bills required by the said O.Ps. to process the claim. Copies of bills Ex.C-5 to C-62 refers.That thereafter the Opposite Parties  No.1 and 2 registered the said claim vide claim No.C291817001127 & also issued a letter Dt.23-12-2017 & demand some more documents for processing the claim as mentioned in the said letter and husband of the complainant also provided such documents to the Opposite Parties  and upon this the Opposite Parties  assured the husband of complainant to pay the claim amount as early as possible. Copy of Ex.C-63 refers. That thereafter on 11-02-2018 suddenly the husband of complainant died and after his death, complainant received a letter Dt.21-03-2018 issued by Opposite Parties  No.1 and 2 in the name of husband of complainant at her home and came to know that they repudiate the claim of husband of complainant on false and frivolous grounds by mentioning that ‘as per the case summery Dt.13-11-2017 insured was diagnosed for chronic kidney disease since 2013 and diabetes since 20 years and the policy inception in this case is 09-02-2017, hence the condition is pre-existing disease and the same is excluded under the policy as per Sec.3 of the Exclusive Clause’, which is otherwise not made out because there is no summery Dt.13-11-2017 as mentioned in the repudiation letter and it is an imaginary fact only to repudiate the genuine claim of the complainant. Moreover, the husband of complainant was got no problem prior to August 2017 and it was only first time diagnosed by the Mayo Hospital in October 2017 and moreover it is also pertinent to mention here that at the time of taking policy there was proper medical checkup was done and after proper medical checkup the policy was issued by the Opposite Parties  after their due satisfaction & after taking premium, to the husband of complainant, so due to proper medical check up done at their own by Opposite Parties  the claim of the husband of complainant now can not be repudiate on such false ground of pre-existing disease. Moreover, everything was explained at the time of taking policy by the husband of complainant and after verifying each and everything the Opposite Parties  had issued the policy in question for Major medical illness & Procedure Policy. Even after receiving all the required documents and completing formalities by the husband of complainant, the claim has been repudiated illegally and on false and frivolous grounds only to forfeit the genuine claim of the complainant. However, the Opposite Parties  are legally bound to pay the genuine claim of complainant.

8.       On the other hand, ld.counsel for the Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the Complainant and filed written arguments  on the lines of averments made in the written version and contended that the insured was k/c/o Chronic Kidney Disease and diabetes as pre-existing disease and the same was never disclosed at the time of procurement of policy. Further the treatment against which the present claim was filed also related to the ailment of Chronic Kidney Disease and Diabetes, as the treatment  taken by the insured and at the ailment diagnosed was Chronic kidney disease, T2DM ad CAD (Coronary Artery Disease), thus the claim was found not payable.  Hence, the insured by not disclosing the PED before procuring the policy has violated the policy document and also the core principle of insurance i.e. the principle of good faith and had obtained the policy through concealment of material facts.  Further contended that the treatment underwent by the insured already existed before the inception of policy thus the illness was pre existing disease and as per the terms and conditions of the policy, the Opposite Parties  are not liable to make any  payment on account of pre existing illness. Further the c  had a duty of disclosure of information related to all kinds of pre existing disease as per he doctrine of uberrimae fidei. As such, in terms of the said proviso of the insurance policy, the insurance company has repudiated the claim of Complainant  in a proper manner, vide letter dated 21.03.2018.

9.       Perusal of the contention of the ld.counsel for the shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

10.     For the sake of arguments, for the time being, if the written reply filed by Opposite Parties  No.1 and 2 is presumed to be correct, the next  plea  raised by Opposite Parties  No.1 and 2  is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed.  But the Opposite Parties  No.1 and 2 could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

11.     Ld.counsel for the complainant has vehemently contended that policy in question was issued in the name of the life assured after proper medical tests conducted by the doctors of the Opposite Parties   and after completing all other formalities and after receiving the first premium of Rs.9998/- and in the month of August 2017 husband of complainant suddenly got abdomen problem along-with the suffering of pain in his foot as one of the finger become totally black and dead, due to which he was admitted in Mayo Health Care Super Specialty Hospital Chandigarh where it was first time diagnosed by the concerned doctors that he was suffering from Kidney Problem and of foot gangrene problem in his foot. So, it was advised by the doctors to treat the patient through (haemo dialysis) and also gave medicines to the husband of complainant with a follow up and advised to do dialysis twice in a week starting from November 2017.

12.     As mentioned above, the policy in question was issued in the name of the life assured after proper medical tests conducted by the doctors of the Opposite Parties   and after completing all other formalities, but however, it also needs to be mentioned that when the policy is issued to the insured, prior investigations regarding health of the insured are duly done by the Insurance Company. If the complainant was suffering from any diseases prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.

13.     Furthermore, Hon’ble National Commission in Satish Chander Madan Vs. Bajaj Allianz General Insurance Co. Ltd. I (2016) CPJ 613 (NC) held that hypertension and diabetes  is common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension/ diabetes would always suffer a heart attack.

14.     It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.  Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in  First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.

15.     The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored.  On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited,   cited by the ld.counsel for the Opposite Parties  are not applicable and relevant  to the facts of the present case. 

16.     Not only this, the further stand of the Opposite Parties  is that insured was treated and suffering from chronic kidney disease, T2DM and CAD (Coronary Artery Diseases) since 2013 and said disease was never disclosed by the insured at the time of policy inception, but to prove this factum, the Opposite Parties  have failed to  prove its case by  examining any medical practitioner/ doctor who has treated the insured for the said disease nor the Opposite Party has filed any affidavit of any doctor who has medically treated the insured for the disease prior to taking of the policy. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd & Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India & Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case  Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. & Anr Vs. Hansaben Deeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of heart disease, the repudiation of the claim on the ground of suppression of material fact is totally illegal. It has been  held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta & Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease of diabetes mellitus which was not disclosed- apparently, burden to prove lies  upon the insurer- If assured was suffering from pre-existing disease why insurer  had not checked it at the time when proposal form was accepted by its  staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled  to claim alongwith interest”.

17.     In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

18.     In view of the above discussion, we are of the opinion that the Opposite Parties have wrongly and illegally repudiated the claim of the complainant. Consequently, we allow the complaint and  the Opposite Parties  No.1 and 2 are  jointly and severally directed to reimburse the medical bill of the Complainant amounting to Rs.1,06,990/- (Rupees one lakh six thousands nine hundred and ninety only)  alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 11.06.2018 till its actual realization.  Opposite Parties No.1 and 2 are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension  and litigation expenses. The compliance of this order be made by Opposite Parties  No.1 and 2 within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

19.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.

Dated: 16.04.2021.