Per Shri Narendra Kawde – Hon’ble Member:
(1) This complaint has been filed alleging deficiency in service on the part of the Opponent – New India Assurance Co. Ltd. (hereinafter referred to as ‘the Insurance Company) as the claim payable under Insurance policy to the Complainant has been repudiated wrongly.
(2) The salient facts giving rise to this complaint are that the Complainant was in employment of Air India as a Flight Engineer holding flight engineer’s valid licence bearing No.153 effective from 08.01.1976. The said licence renewed from time to time thereafter. The Complainant was also a member of Indian Flight Engineers’ Association (IFEA), Mumbai. This Association is affiliated to International Federation of Airline Pilots’ Association (IFEA) and International Transport Workers’ Federation (ITE). The Complainant subscribed through Indian Flight Engineers’ Association to a policy, namely – Loss of Flying Licence Insurance policy initially for a period 08.09.1999 to 07.09.2000 for sum assured of `10,00,000/-. The said Insurance Policy was renewed and was enhanced with sum assured of `20,00,000/- by maintaining all other terms and conditions originally incorporated in the earlier Insurance Policy. The renewal insurance policy of sum assured of `20,00,000/- was valid for a period 29.09.2000 to 28.09.2001. Insurance Policy was issued with the stipulation of the proposal based on current valid licence issued by the competent authority, in this case the Air India, employer of the Complainant. Under this policy provision to indemnify the Complainant for loss of licence due to rendering permanent total disablement was provided for. More specifically this provision in the preamble of the policy reads as “………….in the event of the person insured during the period of insurance suffering any bodily injury whatsoever or suffering any illness whatsoever resulting at any time whether during or after the period of insurance (Not beyond the period of two years after the expiry of the insurance) in the capacity (as hereinafter defined) then compensation will be paid to the person insured as follows by the Company”.
(3) Complainant was declared permanently medically unfit by Air Force Central Medical Establishment (AF-CME), New Delhi, w.e.f. 13.12.2001 resulting into loss of licence and certificate of validity”, Complainant was ceased to fly aircraft as Flight Engineer and was grounded for the office duty. Since the policy covered indemnity for loss of licence the Complainant filed insurance claim under the policy somewhere in February, 2002 exactly within three months i.e. after he was declared medically unfit w.e.f. 13.12.2001 and it was offered to honour part claim at the rate of 18% of the sum assured under the policy as against 100% claim. However, this settlement offered by the Opponent Insurance Company was declined by the Complainant and finally the Opponent Insurance Company repudiated the claim under the policy on 03.02.2003, i.e. exactly after a year from filing the claim in February, 2002 on the ground of breach of policy condition nos.6 and 9 (narrated hereinafter).
(4) Complainant has vividly stated in the complaint that the flight licence issued by the competent authority was with ‘restricted medical validity’ which means at the time of renewal, the Complainant was required to undergo certain medical fitness tests. It is the case of the Complainant that all the required details along with the proposal form, more specifically copy of flying licence and medical certificate dated 19.05.1999 issued by Air Force Central Medical Establishment were submitted and this fact which is corroborated by the Opponent Insurance Company in their letter of repudiation. Aggrieved with the repudiation of claim, the Complainant preferred to file consumer complaint praying for settlement of claim of `20,00,000/- under the policy for full amount with interest @15% per annum w.e.f. 01.04.2002 till the date of actual realization. The Complainant also claimed compensation of `1,00,000/- for mental harassment and agony and `1,00,000/- towards costs of litigation.
(5) The Opponent Insurance Company has appeared and filed written version and affidavit in evidence denying contents and submissions of the Complainant on all possible counts and took recourse to the text of the letter repudiating the claim under the policy. Interestingly the Opponent Insurance Company in repudiation letter under caption “No prima-facie liability” stated that “In the instant case, the illness was apparently contracted by you prior to the commencement of the first policy i.e. prior to 8.9.99 and hence claim is not admissible. We draw your attention to the Medical Certificate issued by AFCME dated 19.5.1999 submitted along with proposal form for the year 1999-2000 which confirms that your illness had occurred prior to and not after the commencement of both the above periods of insurance.” Opponent Insurance Company tried to justify the repudiation for breach of policy condition nos. 6 and 9, i.e. non-disclosure of pre-existence disease and delay in intimation of disease of Complainant on medical ground.
(6) This is an old matter placed on board for hearing and disposal. Heard the Ld.Counsels of both the parties and perused the record placed before us.
(7) Undisputed facts are that the Complainant while in the employment of the Air India as a Flight Engineer was issued the valid licence bearing No.153 with ‘restricted medical validity’. The said licence came to be renewed from time to time till 13.08.2001. The Complainant was declared temporary unfit on 03.08.2000 for the review of MRI and fresh opinion of neurophysician, but the said licence was not cancelled or suspended. Later on the Complainant appeared for medical examination at Air Force Central Medical Establishment on 14.08.2000 and was declared fit with endorsement “next review with review certificate from neurophysician after three months.” Licence was renewed from 22.08.2000 to 13.08.2001. Subsequently validity was corrected for the period 22.08.2000 to 13.11.2001 based on the report of medical validity. During the period 17.02.2000 to 01.03.2000 the Complainant was undergoing Refresher Course and other training procedures as per DGCA requirements. In December, 2000 the Complainant fell sick and he was treated under the Doctors of Air India as well as the specialists and he was declared temporary unfit and the fact was reported on 6th February, 2001 to the Opponent Insurance Company by Air India Flight Engineers’ Association vide their letter No.IFEA/NIA/(GEN)/7833-2001 dated 6th February, 2001, i.e. well within three months as per the stipulation clause of the policy. Later on the Complainant was declared medically unfit for a period of six months on 8th February, 2001 and thereafter, declared permanently unfit by the authorities w.e.f. 13.12.2001. on the ground of “lacunar infarct syndrome and hypertension (on anti-communis-anis) and not due to the psychosis psychoneurosis or epilepsy” as stipulated in the policy condition. The Complainant was grounded and lost the duty to fly as the licence to fly was not valid w.e.f. 13.12.2001. The Insurance policy cover is against loss of licence as a result of suffering any bodily injury whatsoever or suffering any illness whatsoever resulting at any point of time whether during or after the period of insurance (but not beyond the period of two years after the expiry of the insurance) in the capacity causing permanent total disablement, compensation amount of 100% of the sum insured is payable except incapacitation due to ‘psychosis psychoneurosis or epilepsy’ as provided in policy condition.
(8) The insurance cover was provided till 28.09.2001 for indemnifying the loss of licence. The Complainant permanently lost the licence to fly w.e.f. 13.12.2001 as was declared permanently unfit to fly due to “lacunar infarct syndrome and hypertension (on anti-communis-anis) and not because of psychosis psychoneurosis or epilepsy” as stipulated in policy. The policy clause provides coverage period of two years beyond expiry of the insurance policy. Policy was valid till 28.09.2001 which covers this contingency. The Opponent Insurance Company resorted to breach of policy conditions bearing nos.6 and 9 for repudiation of claim.
Condition No.6:
“Any fraud misstatement or concealment on the proposal or application declaration or in any statement given in connection with a proposal or application or in the making of any claim hereunder shall render this insurance null and void and all claims hereunder shall be forfeited.”
Condition No.9:
“Immediate notice in writing must be sent to the company at its office noted in the policy of any personal injury, illness, disease or disability including natural deterioration of the person insured for which compensation might become payable under the insurance and the person insured must as clearly as possible place himself under the care of duly qualified medical practitioner. When a notice is not received within three calendar months after the occurrence of the personal injury or of the first appearance of the disease or disability including natural deterioration or of the date of commencement of the illness as fair and reasonable explanation for the delay must be given, otherwise the claim will not be admitted. Further more unless within six calendar months of the date of expiry of this policy due notice in writing has been sent to the company of any personal injury illness, disease or disability including natural deterioration for which compensation might become payable no claim will be admitted hereunder.”
(9) The Opponent insurance company showed its willingness to settle the discounted claim @18% per annum against the sum insured which was declined by the Complainant. The final repudiation of the claim came to be issued in February, 2003 i.e. almost after a gap of one year from submission of claim under the policy. The submission of the Ld.Counsel of the Opponent Insurance company that there was suppression or concealment of the disease (not known as not mentioned in repudiation letter) as per policy condition no.6 is unsustainable as the proposal form signed and submitted by the Complainant was submitted together with Medical Certificate dated 19.05.1999 issued by Air Force Central Medical Establishment and copy of the flying licence with ‘restricted medical validity’. The renewal of licence was subject to undergoing medical examination from time to time. This fact was clearly brought to the notice of Opponent Insurance Company and only on assessing this restricted validity of medical condition and medical certificate, the subject policy was issued to indemnify loss of flying licence without rider. Therefore, the averment and/or submission of the Opponent Insurance Company is not at all sustainable and moreover, it demolishes their own theory of concealment of facts since there is ground resorted to in the letter of repudiation of Opponent stating that the “medical certificate issued by Air Force Central Medical Establishment on 19.05.1999 was submitted along with proposal form”. The said medical certificate together with licence was a part of proposal submitted by the Complainant prior to issue of the first policy. The policy was issued by Opponent without any rider. As regards the breach of policy condition no.9, we observed that the temporary illness of the Complainant in December, 2000 was communicated within the period of three months i.e. on 6th February, 2001 and the permanently medical unfit status of the Complainant w.e.f. 13.12.2001 resulted into filing insurance claim under the policy in February, 2002. On both occasions intimation had been promptly and well within the period of three months given to the Opponent Insurance Company by the Complainant. Therefore, repudiation of insurance claim on the ground of breach of policy Condition nos.6 and 9 is totally arbitrary and fully inconsistent with policy provision.
(10) Opponent Insurance Company has miserably failed to establish theory of pre-existing disease. Prior to subscribing Insurance policy a medical certificate issued by Air Force Central Medical Establishment dated 19.05.1999 together with copy of the flying licence was very much submitted together with proposal form which was assessed and underwritten, thereafter policy was issued without any condition or rider. Had there been alleged pre-existing disease, flying licence of the Complainant would not have been renewed from time to time after issue of policy which was subject to undergoing rigorous medical examination as per the protocol of the job.
(11) The complaint has been filed in the year 2003 after repudiation of insurance claim. Policy claim was submitted in February, 2002. Settlement offered by the Opponent was not acceptable to the Complainant and even the repudiation came to be issued on 03.02.2003 i.e. almost after a period of one year from the date of filing of the insurance claim. The Complainant consistently followed for settlement of claim with the Opponent himself and also through Indian Flight Engineers’ Association. The Complainant deserves to be suitably compensated on account of inordinate delay and for the mental agony together with cost of litigation.
(12) There is substantive merit in the complaint as Opponents have arbitrarily repudiated the insurance claim payable under the policy rendering deficiency in service. We hold accordingly and pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) Opponent Insurance Company is directed to pay to the Complainant a sum of `20,00,000/- together with interest @15% per annum from the date of repudiation of claim i.e. from 03.02.2003 till realization of the payment within 45 days from today, failing which penal interest @6% per annum will be payable by the Opponent Insurance company till actual payment is made.
(iii) Opponent Insurance Company is directed to pay to the Complainant `50,000/- towards compensation for mental agony.
(iv) Opponent Insurance Company is also directed to pay to the Complainant `25,000/- as costs of this litigation.
Pronounced on 11th July, 2012.
