(Passed this on 28^th September,  2017)

Shri. S.P. Muley, President –

1.      This is a complaint of deficiency in service against New India Assurance  Company, and M.D.India Health Care Services (TPA), the Opposite Parties, for not settling the medi claim.

2.      The complainant in the month of May´2012 was approached by one Shri Garde, Development Officer of the O.P. 1 to 3 to sell policies of the OPs. Pursuant to the information received from the officer, the complainant agreed to purchase Medi claim Policy 2007 (Hospitalisation Benefit Policy). The sum assured was Rs. 2.50 lakh. The said officer obtained his signatures on some blank proposal form and assured him of filling up the same as per his information. After completing formalities, the OP3 issued the Medi claim Policy´2007, but sans terms and conditions. It was valid for one year commencing from 6/3/2012 to 5/6/2013. Thereafter on 2/8/2012 the complainant was hospitalised for with Genito Urinary Emergency with UTI. Due intimation of hospitalisation was given to O.P. 3&4. He was discharged on 6/8/2012. he had incurred expenses of Rs.83,318/-. He then submitted the claim form with all necessary documents to the O.P.3 on14/8/2012. He supplied various documents as and when demanded from him. But even after lapse of 6 months the O.P. 1 to 3 failed to settle his claim. This is deficiency in their service. Hence by this complaint he has claimed the amount of Rs. 83,318/- with interest along with compensation for mental agony and litigation cost from all the OPs.

3.      The written version to the complaint is purportedly filed jointly by all the 4 OPs at Ex.8. They have admitted the Mediclaim Policy´2007 was issued to the complainant with terms and conditions for the period stated in the complaint. It is denied Shri Garde obtained his signature on blank proposal form. As per the document filed by him, he had first visited the clinic of Dr. Barokar on 14/3/2012 for abdominal pain and fever with cold and was diagnosed for UTI and Chronic Renal failure secondary to Obstructive Uropathy due to Neurogenic Bladder. Thus he old kidney problem due to neurological problem of bladder. Thus as per doctor certificate he was suffering with said problem since prior to taking the policy. But he suppressed this fact from the OPs, therefore he is not entitled to claim reimbursement. Thus denying deficiency in service and the claim of the complainant, it is submitted to dismiss the complaint.

4.      Heard both the Ld counsels. Perused documents, rejoinder, and cross examination. We record our findings and reasons as follows.

FINDINGS  AND  REASONS

5.      It is not in dispute that the complainant had purchased a Medi claim Policy of 2007 and during the subsistence of the policy he was required to be hospitalized for urinary tract infection. As per the policy, he was entitled to get reimbursement of medical expenses incurred on his treatment. But according to the OPs he has been suffering from UTI problem since prior to issuance of the policy, but he did not disclose this fact while filling up the proposal form. This suppression of pre existing disease amounts to breach of policy condition and therefore he is not entitled to get reimbursement.

6.      The OPs, in order to substantiate their stand have relied on one certificate, which is filed by the complainant. It is also submitted by the Ld. counsel for the OPs that had this certificate been not filed by the complainant, his claim would have been settled long before. The said certificate is document no. 57, issued by Dr. Rajan Barokar. This certificate reads as follows,

          ¨ Tushar Salunke, aged 24 years gentleman was referred to me first time on 14th March 2012, with complaints of fever with chills and pain in abdomen. He was, after evaluation diagnosed to have Urinary Tract Infection & Chronic Renal Failure secondary to obstructive Uropathy due to Neurogenic bladder.

          He is not suffering from Diabetes Mellitus & HTN. Now he is undergoing treatment for repeated Urinary Tract Infection¨

7.      This certificate, prima facie, gives impression that the complainant had old urinary tract problem since prior to 14/3/2012. But if the proposal form is perused, medical history of the complainant appears normal and good. All health related questions are answered in the negative. The proposal form was submitted on 6/6/2012. It is therefore contended by the counsel for the OPs that though the complainant was well aware of his chronic kidney problem well before giving proposal, he deliberately suppressed the fact and falsely answered his health related questions. It is contended, since he obtained the health policy by suppressing material facts, the contract is vitiated and so the OPs are not required to settle his claim. Reliance is placed on following judgments.

1. LIC v/s Shahida Khatoon 2013 (4) CPR 226 (NC)
2. Kapil Sharma v/s LIC 2013 (3) CPR 188 (NC)
3. Smt. Satyavati Sharma v/s LIC 2013 93) CPR 185 (NC)

8.         Ld. counsel for the complainant in his submissions firstly contended, the proposal form was not filled by the complainant himself, but it was filled in by the officer of the OPs 1 to 3 after obtaining his signature on blank form. Therefore, it is submitted, the complainant should not be held responsible for the contents of the proposal form. It was in this background, Ld. counsel for the complainant had sought permission to cross examine Shri Garde, who has filed his affidavit in support of the reply of the OPs. Accordingly he was cross examined. Before adverting to the cross examination, one close look at the proposal form will be useful to appreciate rival contentions on the proposal form.

9.      A perusal of the said form, though it is a photocopy, would show that the blank spaces are filled in same handwriting and in same ink. The handwriting appears different from the signature of the complainant on the form. It may be noted that the complainant simply writes his name and surname like ¨Tushar Salunke¨ as his signature and so it is very easy to read. What is pertinent to  note is that his father´s name, Jayant Salunke is written as his assignee. Handwriting in which his father´s name is written is quite different from the handwriting in which signature is made. That gives little support to the allegation that blank spaces of the proposal form was not filled  by the complainant.

10.    A specific allegation is made against the Development Officer, Garde that in order to get commission on selling the policy, he or somebody else filled up the proposal form. It is the contention of Ld. counsel for the complainant that as per the OPs, the complainant  approached Garde in May 2012 for purchasing the policy. But he was given policy of the year 2007, though he wanted to get policy of the year 2012, which was already introduced. It is further alleged, since Garde is an employee of the OPs, he  cannot get commission on sale of policy, and therefore through agent policies are sold since agent gets commission. We do not want to comment on this allegation in absence of clinching evidence. But it is a fact that in the policy, name of an agent is mentioned. If the complainant himself had approached Garde for getting policy, there was no question of mentioning name of any agent.

11.    Cross examination of Garde reveals certain facts that it was the complainant who had approached him for getting medi claim policy. All terms and conditions of the policy were explained to the complainant and the proposal form is the only documentary evidence in that regard. (But no terms and conditions are embodied in the proposal form.) There are about 10 agents designated under him and he has supervisory control over them. His job is only to propagate and canvass various policies. He does not get commission for sale of policy, though he is empowered to sell policy directly. He admits he has filled some blank spaces of the form on getting instructions from the complainant. When he was asked which particular spaces were filled in by him, he said answers to Q. No. 5 to 10 were written by him. These questions relate to the medical history of the complainant. His affidavit was filed under the instruction of company lawyer, who drafted the same. The said medi claim policy has been renewed for subsequent period, even though the OPs were aware of the subject claim.

12.    From the cross examination it can be deduced that the complainant did not fill  entire proposal form himself and his medical history was written by Garde. It is doubtful whether terms and conditions of the policy were explained to him. The complainant has denied having been provided with the same and the OPs have not filed it on record. It is contended Garde sold the policy without giving complete information and agentś name was mentioned on the policy to help him pocket the commission. The  name of the agent in the policy, certainly, raises some doubt in the backdrop of allegations. In United India Insurance Co. Ltd. v/s S.M.S Tele Communications & Anr. III (2009) CPJ 246 (NC) it was held that an insurer or its agent shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his/her interest. Unexplained exclusion clauses are not binding to an insured. The core question is whether medical history in the proposal form was written by Garde on his own or on the instruction of the complainant. Secondly, whether the complainant has pre- existing disease.

13.    The certificate, no doubt, shows that he has pre existing disease. From the cross examination it can now be said that the questions regarding health condition in the proposal form were written by Garde. If Garde has written medical history on the instructions of the complainant, then the complainant is guilty of suppression of material facts. But if those answers were  written by Garde without consulting the complainant or soliciting information, then the complainant cannot be said to have suppressed the fact about his health. But even then, it cannot be denied that he has pre existing disease. Here it is pertinent to note that, as stated by Garde in his cross examination, the OPs have continued the policy for subsequent years inspite of getting knowledge of pre existing disease. It is also to be noted that the OPs have not intimated about their decision on the claim. They should have either repudiated or allowed the claim long back. Even after coming to know that the complainant has pre existing disease, the claim is still not decided. This is certainly a deficiency in their service. Because as per the guidelines issued by Insurance Regulatory Development Authority (IRDA) it is incumbent upon OPs to settle the claim within a period of one month of its receipt. Not taking any decision on the claim even after the lapse of considerable period also amounts to deficiency in service as held in M/s Shital International v/s United India Insurance Co. 2012 (1) CLT 326 (Punjab).

14.    Ld. Counsel for the complainant has relied on the judgment in the case of LIC v/s Naseem Bano III (2012) CPJ 208 (NC) to support his contention that the onus to prove the complainant had pre existing disease is on the O.P. and in absence of any evidence, repudiation on that count is not justified. However, facts in that case were little different. In the present case document regarding pre existing disease is produced by the complainant himself. But even then, it appears from the documents that there was no deliberate suppression of fact. Because the O.P. 4 by letters dated 28/8/2012 and 14/9/2012  had asked the complainant to provide case papers of his health history and in response to those letters he had provided requisite information along with the doctor certificate (Document 57). So there was no suppression of his medical history. The OPs 1 to 3 must not have found anything contrary to the policy conditions, otherwise the policy would not have been continued post subject claim.

15.    Ld counsel for the complainant argued that the reply, in fact, is not filed by all the OPs, as tried to be shown. The O.P.1 to 3 are respectively Principal, Regional and Divisional offices of the New India Insurance Company and the O.P. 4 is a third party administrator, which is an independent entity. The reply to the complaint as well as affidavit in support of the written reply is filed by Rahul C. Meshram, Divisional Manager of the New India Insurance Company, Nagpur.. but he has not produced any authority letter or minutes of meeting by which he was authorised by the O..P insurance company to file the reply/affidavit on behalf of the O.P. 4. Therefore, it is contended, such reply and affidavit cannot be read into evidence. Reliance is placed on the case of  M/s Shital International. No proper explanation is forthcoming from the OPs.

16.    Thus after due consideration of facts and documents, we are of the opinion that the claim should have been allowed by the OPs. But even after coming to know about pre exsisting disease the claim was kept undecided for quite a long period. This is deficiency in their service and therefore the complaint, on this count, deserves to be allowed. The complainant has claimed the insurance claim with 12% interest for which judgment in A.G.Neochem (P) Ltd v/s New India Insurance Co Ltd I (2016) 18 (NC) is relied. But in that case under different circumstances 12% interest was allowed.

          In the result, following order is passed.

ORDER

1) The complaint is partly allowed.

2) The OPS 1 to 3 jointly and severally, shall reimburse    the expenses of Rs. 83,318/- with 9% p.a. interest from the date of receipt of the claim to the complainant.

3) The OPs 1 to 3 shall, jointly and severally, shall also

pay compensation of Rs. 10,000/- for mental agony and Rs. 5000/- litigation cost to the complainant.

4. The order shall be complied within 30 days from receipt of true copy of the order.

5. Copy of the judgment and order shall be supplied to both the parties, free of cost.