Advocate V.B.Pandit for the
Complainant
Advocate Sanjit Shenoy for the
Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 16th April 2013
This complaint is filed by consumer u/s 12 of the Consumer Protection Act 1986 for deficiency in service against the Insurance Company who has repudiated the Mediclaim of the complainant illegally. Brief facts are as follows-
[1] The complainant is a medical practitioner and doctor by profession. He is practicing in Pune. He had obtained Mediclaim Policy from the Opponent. Opponent No.1 is the Insurance Company, Opponent No.2 is the Branch Manager of the said company and Opponent No. 3 is third party agency through which the mediclaims of the Opponent No.1 are settled. It is the case of the complainant that the Opponent No.2 represented the complainant that the mediclaim policy is beneficial to the complainant and his family members. Hence he has purchased the said policy by making payment of Rs.5,425/- by way of premium. He has also contended that the proposal form was blank and he had signed the blank proposal form. He has further explained that he has disclosed to the opponent about his previous surgery which took place on 5/10/2005. Still the Opponent has accepted the proposal and issued policy. On 21/2/2007 complainant suffered from Acute Stump Appendicitis and was operated on 22/2/2007. He had spent Rs.48,449/- for medical expenses. He had submitted his claim to the opponent alongwith all relevant documents but the opponent has repudiated his claim on 26/10/2007 after lapse of seven months. Again he had approached to the opponent requesting to reconsider the claim but the opponent refused to reconsider his claim. It is the case of the complainant that opponent wrongly repudiated his claim and caused deficiency in service. Hence he has filed present complaint claiming compensation of Rs.5,60,449/- which includes the medical expenses, compensation for deficiency in service, mental and physical sufferings and for delay in settling the claim without valid reason.
[2] Opponents resisted the claim by filing written statement and denied the contents of the complaint in toto. It is specifically denied that the complainant had submitted blank proposal to the opponent. It is also denied that the complainant disclosed about his previous surgery at the time of submitting his proposal. It is the case of the Opponents that the contract between the complainant and the opponent is a contract of insurance and it is based upon principle of ‘utmost good faith’. The complainant has misrepresented that he had not undergone any surgery prior to entering into contract with the opponents. The complainant did not approach the Consumer Forum with clean hands. The complainant has wrongly submitted that he had signed the blank proposal form. The claim is rightly repudiated by the opponents. The claim raised by the complainant is exaggerated as there is no deficiency in service. The Opponents have prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence on which the complainant and the opponent have placed reliance, hearing the argument of both counsel and considering the pleadings of both parties following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that opponents have caused deficiency in service by repudiating his mediclaim illegally ? | In the negative |
2 | What order ? | Complaint is dismissed |
REASONS-
Admitted facts in the present proceedings are that the complainant has purchased Mediclaim policy from the Opponent by paying premium of Rs.5425/-. It is also not in dispute that the complainant was previously operated for Appendicitis and again he was operated for the same disease and claimed medical expenses which were incurred for the said operation.
There is a dispute between the parties as regards submission of the proposal form for mediclaim policy. It is the case of the complainant that the proposal which was submitted by him was blank and he has signed the said proposal believing that the opponents will mention the fact of previous surgery in the said proposal. It is the case of the opponents that the proposal was not blank but it was duly filled in by the complainant and he had suppressed the material fact as regards the previous surgery of Appendicitis. The contract between the parties is suffering from the infirmities such as misrepresentation and fraud and there was no free consent of the parties and the said contract is void abinitio. Now it is necessary to scan the facts which are alleged by both parties. Whether the proposal submitted by the complainant was blank or it was filled in is immaterial when the complainant has admitted that he had signed the said proposal form. The person who is signing the document is bound by the contents of the document. The complainant himself is a doctor and doing medical profession hence it cannot be expected from him that he had signed blank proposal form of mediclaim policy. When there is a specific clause as regards the previous surgery the complainant has answered the said question in the negative. Then it is nothing but misrepresentation. In such circumstances I held that the contract between the parties is suffering from the infirmities.
The Opponent has argued before me that the basic principle of insurance contract is utmost good faith. There is absence of good faith in the said contract hence the complainant is not entitled to enforce the said contract. He has placed reliance upon the ruling of Hon’ble Supreme Court of India in Civil Appeal No. 2776 of 2002 between Satwant Kaur Sandhu vs. New India Assurance Co. dated 10/07/2009. It appears from the facts of the said ruling that the Insurance Company has repudiated the claim of claimant as the complainant had suppressed material facts and it is observed that the insurance is a contract of speculation. The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the assured only; the underwriter trusts to his representation and proceeds upon confidence that he does not keep back any circumstance to his knowledge to mislead the underwriter into a belief that the circumstance does not exist. The keeping back such circumstance is a fraud, and therefore the policy is void.
In the light of above discussion it is crystal clear that whether the suppression of material fact is material or immaterial is not a question to determine the terms and conditions of the agreement between the parties. It is crystal clear that the complainant who himself is a medical practitioner has suppressed this material fact.
The learned Advocate for the complainant argued before me that the doctor on the panel has opined that this is a fit case for granting mediclaim and he had recommended his mediclaim for settlement. It is significant to note that the doctor is an expert in the medical field but he has no concern with the policy decision and he is not authorized to advice as to whether claim is to be settled or not.
In the light of the above discussion I held that the Opponent has rightly repudiated the mediclaim as the complainant has suppressed the fact of previous surgery and Opponent has not caused deficiency in service. Hence I answer points accordingly and pass the following order –
:- ORDER :-
1. Complaint is dismissed.
2. Parties to bear their own costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 16/04/2013
