IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 102/S/2014. DATED : 11.07.2017.
BEFORE PRESIDENT : SMT. KRISHNA PODDAR,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANT : SMT. PUSPA DEVI CHANANI,
W/O Sri Subhash Chandra Chanani,
C/o Ashok Cargo Movers,
6, Bardhaman Road, SILIGURI 734 005, W.B.
O.Ps. 1. : THE MANAGER,
Birla Sun Life Insurance Co. Ltd.,
City Plaza, 2nd Floor, Sevoke Road,
Siliguri – 734 001.
2. : THE BRANCH OPERATION EXECUTIVE,
Birla Sun Life Insurance Co. Ltd.,
Ojas Mall, 2nd Floor, Near Siliguri Fire Station,
SILIGURI – 734 005, W.B.
3. : THE CHAIRMAN-CUM-MANAGIN DIRECTOR,
Birla Sun Life Insurance Co. Ltd.,
Regd. Office, One Indiabulls Centre, Tower 1, 15 & 16th
Floor, Jupitar Mill Compound, 841, Senapati Bapat Marg,
Elphinstone Road, Mumbai – 400 013.
4. : SNOWTEX INVESTMENT LTD.,
C/o Birla Sun Life Insurance Co. Ltd.,
One Indiabulls Centre, Tower 1, 15 & 16th
Floor, Jupitar Mill Compound, 841, Senapati Bapat Marg,
Elphinstone Road, Mumbai – 400 013.
5. : MD INDIA HEALTHCARE SERVICES (TPA) PVT. LTD.,
S/No. 46/1, E-Space, A-2 Building, 4th Floor,
Pune Nagar Road, Vadgaonsheri, Pune – 411 014.
FOR THE COMPLAINANT : Sri P. D. Dalmia, Advocate.
FOR THE OP Nos.1, 2 & 3 : Sahil Sahu, Advocate.
J U D G E M E N T
Smt. Krishna Poddar, Ld. President.
Complainant’s case in brief are that the OP Birla Sun Life Insurance Pvt. Ltd. had organized a camp at City Plaza, for obtaining new life business including Mediclaim Insurance Business. The OP No.4 Snowtex Investment Ltd. being an agent/broker/adviser of the OP insurer approached the complainant and her husband for a mediclaim policy on the life of the complainant and supplied a form
through its employee/representative and as asked for the complainant supplied all information and documents in her possession to the OP No.4 in Siliguri. While asking about the health of the complainant it was categorically told to the employee/worker of the OP No.4 that the complainant has been some problem sometimes, regarding asthma but she has not been taking medicine on regular basis as not needed. The agent/employee of the OP No.4 assured to fill in the blank form as per information furnished and got the signature of the complainant in blank application form along with premium amounting to Rs.14,576.00/-. (At the relevant time in the month of April, 2012, there was no office of the insurer in or around Siliguri). The complainant got the policy being No.005552217BSLI Vision Plan-Critical illness sum assured Rs.1,00,000/- and surgical care sum assured Rs.1.5 lac total Rs.2.5 lac but she did not get the copy of filled in application form on which the policy was issued and the complainant was totally ignorant what has been actually mentioned in the policy about her health as disclosed to the adviser’s agent. After few months of the policy, the complainant faced some problem in respect of her health and accordingly she approached Dr. S. K. Kar and he after some tests on 28.01.2013 came to the conclusion that the complainant was suffering from Hydatid Cyst of liver and right ovarian cyst. The complainant’s family decided to go to Asian Institute of Gastroenterology, Hyderabad for better treatment in the month of May, 2013 and there it was diagnosed to be treated for Hydatid Cyst and right para ovarian cyst. Accordingly complainant was treated at Hyderabad at the said Nursing Home/Hospital. From the discharge summary issued by Asian Institute of Gastroenterology, Hyderabad, it reveals that the complainant “presented with the history of occasional dull abdominal pain”. She did not presented for suffering from asthma and no treatment has been given for asthma. (Asthma is not root cause of cyst and in biopsy report no.2013/4171 Hydatid Cyst wall and para ovarian cyst wall has been specified. From the said discharge summary it is very much clear that surgery was done for laparoscopic deroofing of cyst plus laparoscopic para-ovarian cystecomy plus tubal ligation”.
Complainant then lodged claim in the prescribed form with the OP and all required and demanded documents including prescription, discharge summary, bills, reports and other papers were furnished to the OP. The claim has been registered under Policy No.005552217CCN MD 11646375. The OP made delay to settle the claim and as such the complainant visited the local office which was opened by this time at Siliguri and came to know that claim was under expert’s opinion but no expert’s opinion was available till 20.12.2013. Subsequently, the OP vide refusal letter dated 01.03.2014 has rejected the claim of the complainant only on the ground that the information furnished against column no.11 of the application/proposal form regarding health and illness of the applicant quoting some questions and answer given in the proposal form the OP mentioned as under “However medical records submitted by you reveal that you were diagnosed to be suffering from asthma and on treatment for the same prior to the application for insurance. Hence the aforesaid replies in the application for insurance are false. Had the true and correct information pertaining to your medical history been revealed at proposal stage, the company would not have issued the surgical Care Rider at all”.
It has been asserted by the complainant that there is no medical paper submitted by her stating that she has been suffering from asthma. The complainant told to the agent/employee of the insurer who filled in the application form that occasionally she has been suffering from asthma. What the agent/advisor of the OP has done/written in the application form is not known to the complainant nor a copy of the said document has been furnished along with policy. In the camp no brochure, no instruction/direction pamphlet, no rule regulation and or other information was supplied to the complainant and she was totally kept in dark. It has further stated by the complainant that in the said refusal letter though the surgical Care Rider coverage for the said policy is being declared as ‘terminated’, the OP has taken premium of full amount to Rs.14,576.23/- on 20.04.2013 and again on 12.04.2014 as renewal of the said policy for the term 2013-14- and 2014-15. If the said clause has been terminated then the OP should have informed to the complainant and it should have return the excess amount intimating the complainant knowing her view whether she intends to continue the policy without ‘Surgical Care Rider’ coverage or not. Silence of the OPs in this matter amounts to unfair trade practice and deficiency in service. The complainant never approached the doctor for treatment of asthma under the policy and there is no expert’s opinion from the side of the OP to prove that asthma has developed cyst for which operation was done and insurance was not taken for asthma treatment or any operation as no disease was aware to the complainant for which surgical operation would be required. Complainant spent Rs.1,28,367/- and further she incurred expense to the tune of Rs.3,725/- in the month of May, 2014 for check up after operation. Hence, the complainant claims the sum of Rs.1,32,092/- under the said policy from the OP jointly and severally and complainant further claims the sum of Rs.65,000/- towards compensation for mental agony, tension, and torture.
The OP Nos.1, 2 & 3 entered appearance and contested the case by filing written version wherein the material averments made in the complaint petition has been denied and it has been contended inter-alia that the instant case is not maintainable. It has been contended by the OPs that in the instant case there are inherent misrepresentation and suppression of material facts and the insured has intentionally made misrepresentation and false statement at the inception to get the insurance cover and she suppressed a relevant fact that at the time of procurement of policy she was suffering from asthma for the past 15 years so as to get the insurance cover, and the insurance has been obtained by fraud and misrepresentation, and hence the policy is void ab-initio. It has been further contended by the OPs that the complainant had intentionally suppressed material facts from the OP that she was suffering from asthma and when the above suppression was revealed, the OP is well within the ambit of law correctly repudiated the claim of the complainant on the ground of suppression of material fact and as there is no deficiency in service or unfair trade practice on the part of the OPs the complainant is not entitled to get any relief and the instant case is liable to be dismissed with cost.
To prove the case, the complainant has filed the following documents:-
1. Policy No.005552217 from 23.04.2012 to 23.04.2070.
2. Dr. S. Kar prescription dated 28.01.2013.
3. Claim details under process.
4. Out patient record of Asian Institute of Gastroenterology.
5. Discharge Summary of Asian Institute.
6. CT Scan report of Asian Institute dated 21.05.2013.
7. Laboratory report of Asian Institute dated 25.05.2013.
8. Hospital Treatment Certificate for claim.
9. Gist of bills claim.
10. Internal e-mail intimating for expert opinion.
11. Repudiation letter dated 01.03.2014.
12. Objection to the refusal of claim by the complainant.
13. Asian Institute certificate dated 22.05.2014.
14. Renewal premium receipt dated 12.04.2014 for Rs.14,576.23/-.
OPs have filed the following documents :-
1. Xerox copy of Medical prescription of Puspa Devi Chanani of Asian Institute of Gastroenterology dated 22.05.2013.
Complainant has filed evidence in-chief.
Complainant has filed written notes of argument.
OP Nos.1, 2 & 3 have filed evidence in-chief.
OPs have filed Written Notes of Argument.
Points for determination
1. Is there any deficiency in service on the part of the OPs ?
2. Is the complainant entitled to get any relief as prayed for ?
Decision with reason
Both issues are taken up together for the brevity and convenience of discussion.
It is admitted position that the complainant obtained a mediclaim policy from OP No.1 in the month of April 2012 being Policy No. 005552217BSLI Vision Plan -critical illness sum assured was Rs.1,00,000/- and surgical case sum assured was Rs.1.5 lac i.e., total Rs.2.5 lac for a period of 18 years with annual premium amount of Rs.14,576/-.
The case of the complainant is that she took the policy being approached by OP No.4 Snowtex Investment Ltd. the agent/broker/adviser of OP Insurer who sent one agent/employee with an application form to the complainant and the complainant supplied all information and documents in her possession to the said agent and she had categorically told the agent of the OP No.4 that she had been some problem sometimes regarding Asthma but she had not been taking medicine in regular course as not needed. The said employee/agent of OP No.4 assured to fill in the blank application form on behalf of the complainant and he got the signature of the complainant in the blank application form along with premium amount of Rs.14,576/-. The complainant did not get the copy of the filled in application form on the basis of which the policy was issued and she was totally in dark about what has been written in the form in respect of her health as disclosed to the agent.
After few months of the policy complainant faced some problem in respected of her health and consulted with Dr. S. K. Kar who after certain tests came to the conclusion that the complainant has been suffering from Hydatid Cyst of liver and right ovarian cyst and the doctor advised Zental 400 mg. twice daily.
Complainant then went to Asian Institute of Gastroenterology, Hyderabad for better treatment in the month of May, 2013 and there it was diagnosed to be treated for Hydatid Cyst and right para-ovarian cyst and complainant was treated in the said hospital at Hyderabad.
From the discharge summary issued by Asian Institute of Gastroenterology, Hyderabad, it reveals that complainant presented with the history of occasional dull abdominal pain and she did not present for suffering from asthma and no treatment has been given to her for asthma and from the discharge summery issued by Asian Institute of Gastroenterology, Hyderabad, it is very much clear that the surgery was done for laparoscopic deroofing of cyst plus laparoscopic para ovarian cystecomy plus tubal ligation. Subsequently, complainant lodged claim in the prescribed form before the OP and supplied all relevant documents including prescription, discharge summary, bills etc. but the OP made delay in the matter of the settlement of the claim and lastly vide refusal letter dated 01.03.2014 rejected the claim of the complainant on the ground of misrepresentation and suppression of material facts and it has been stated that policy holder suppressed a relevant fact at the time of procurement of policy that she was suffering from asthma for the past 15 years as to get the insurance cover. In support of the claim the complainant has submitted evidence and supported documents.
The OP on the other hand categorically stated by filing written version as well as evidence, that the complainant obtained policy by practicing fraud and misrepresentation. Complainant had pre-existing disease i.e., Asthma for a continuous period of past 15 years but at the time of fill in the insurance proposal form she suppressed the said fact and thus misleaded the OP to grant her insurance cover on the terms as stated in the policy document and non-disclosure of the Asthma was material to the issuance of the policy and ought to have been disclosed in the proposal. The insured maliciously suppressed the fact about her Asthma at the time of filling up of the proposal form, so, she is not entitled to get any insurance coverage and accordingly, the claim of the complainant is repudiated by the OP.
On perusal of the documents submitted by the complainant it is found that she was suffering from “Hydatid Cyst” of lever and “right para-ovarian cyst” as diagnosed at Asian Institute of Gastroenterology, Hyderabad where she went for better treatment in the month of May, 2013. She was treated in the said hospital and from the discharge summary issued by the hospital, it is found that surgery was done for laparoscopic deroofing of cyst plus laparoscopic para-ovarian cystecomy plus tubal ligation and the complainant was not given any treatment for asthma and the ailments for which she was treated there is not because of asthma medication.
The OP on the other hand issued an insurance policy on the basis of disclosure made by the complainant. According to the OP the complainant was having full knowledge of asthma has deliberately did not disclose the facts at the time of filling up the proposal form. Suppression of material facts regarding her health condition was misrepresentation and fraud played by the complainant, the complainant’s claim has no legal basis and accordingly OP rightly repudiated the claim as there is no deficiency of service.
Parties led evidence. Upon consideration of facts, circumstances and evidence on record, we find that the proposal form was filled up by the agent of the insurer and the complainant was not guilty of suppression of any material facts nor she failed to disclose any fact in her personal statement. It was necessary on the part of the OP to examine the agent who recorded the personal statement of the complainant to prove whether the questions were explained to her and that she understood of them and implications thereof, so, the life assured was aware of the disease at the time of filling up the proposal form or at the time of taking the insurance policy. OP claimed that the complainant is suffering from asthma for last 15 years and based on this plea the OP has repudiated the claim of the complainant. it is not clear to us how the OP hold that the complainant has been suffering from Asthma for last 15 years. The OP failed to adduce any evidence or any scrap of medical paper to prove its contention that the complainant was treated for asthma or she was suffering from asthma for a continuous period of 15 years. So, there is no proof that the ailment of the complainant was pre-existing before taking out the policy. The OP could not file any previous prescription of any doctor prior to taking out the mediclaim policy that the complainant bore any symptom of sickness relating to her disease i.e., asthma. Therefore, it cannot be said that the ailment was pre-existing disease before taking out the policy. Moreover, nobody knows when she or he will suffer from any kind of sudden pain or disease requiring operation. OP repudiated the claim as per report of the doctor of Asian Institute of Gastroenterology, Hyderabad but in the said report we don’t find anything to hold ‘that the complainant was treated for Asthma or any medicine was prescribed for the said disease. OP failed to establish that on the date of taking out the policy the complainant had pre-existing ailment i.e., asthma that she had suppressed the said material fact. Therefore, in our considered view such allegation regarding suppression of material fact has no leg to stand. The onus in the instant case of fraudulent suppression of material fact rests heavily on the party alleging fraud i.e., the insurer. The OP/insurer failed to adduce any evidence or any scrap of medical papers to prove its contention that the complainant had pre-existing disease i.e., Asthma for a continuous period of past 15 years at the time of fill in the insurance proposal form. As such the said contention of the appellant is also devoid of force. In support of its contention the OPs placed reliance on certain decisions but on perusal of said decisions, we are of the view that facts of aforesaid cases are not applicable to the present case at all. So, in this case the insurance company cannot avoid its liability simply alleging inaccuracy or falsity of statement in proposal form. In our view, in the present case in absence of cogent material adduced by the OPs, the repudiation was devoid of merit and was illegal.
In view of above discussion, we are of the view that the complainant is able to prove her case by adducing cogent evidence. Therefore, the complainant is entitled to get a sum of Rs.1,32,092/- towards expenses of operation and other medical expenses and she is further entitled to get Rs.25,000/- for mental worries, tension, torture and agony and a further sum of Rs.5,000/- towards litigation cost from the OPs.
Thus, the Issue Nos.1 & 2 are disposed of in favour of the complainant.
In the result, the case succeeds on contest.
Hence, it is
O R D E R E D
that the Consumer Case No.102/S/2014 is allowed on contest in part against the OP Nos.1, 2 & 3 with cost and exparte against the OP No.4 with cost and dismissed exparte against the OP No.5, since no relief was sought for against the OP No.5.
The OP Nos.1, 2, 3 & 4, who are jointly and severally liable, are directed to pay to the complainant a sum of Rs.1,32,092/- by issuing an account payee cheque in the name of the complainant towards expenses of operation and other medical expenses within 45 days of this order.
The OP Nos.1, 2, 3 & 4, who are jointly and severally liable, are further directed to pay to the complainant a sum of Rs.25,000/- by issuing an account payee cheque in the name of the complainant towards mental worries, tension, torture and agony within 45 days of this order.
The OP Nos.1, 2, 3 & 4, who are jointly and severally, are further directed to pay to the complainant a sum of Rs.5,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost within 45 days of this order.
Failing which the amount will carry interest @ 9% per annum on the awarded sum of Rs.1,57,092/- from the date of this order till full realization.
In case of default, the complainant is at liberty to execute this order through this Forum as per law.
Let copies of this judgment be supplied to the parties free of cost.
