Punjab

StateCommission

FA/12/793

Rajinder Kumar - Complainant(s)

Versus

UIIC Ltd. - Opp.Party(s)

Akashdeep Batra

07 Jul 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No.793 of 2012

                                                  Date of Institution: 11.06.2012

                                                  Date of Decision : 07.07.2015

 

Rajinder Kumar son of Sh. Krishan Dutt, resident of 304-D, Model Town Extension Dugri Road, Ludhiana.                      

                                                                   …..Appellant/complainant

Versus

 

United India Insurance Co., Divisional Office, VI, B-17, Phase II, Metro Road, Focal Point, Ludhiana.

                                                               .….Respondent/opposite party

                                     

First appeal against order dated 26.04.2012 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:-

     Shri J. S. Klar, Presiding Judicial Member.

             Shri H.S. Guram, Member.

Present:-

 

     For the appellant                   :     Sh. Akashdeep Batra, Advocate.

For the respondent      :     Sh.Parminder Singh, Advocate.

    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                   The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondent herein (the opposite party in the complaint), assailing order dated 26.04.2012 of District Consumer Disputes Redressal Forum Ludhiana (in short, “the District Forum”), vide which, the complaint of the complainant was dismissed.

 2.               The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OP on the averments that he purchased one health insurance policy from OP bearing no.201400/48/11/97/00000138 for the period from 29.04.2011 to 28.04.2012. The complainant was having insurance policies for the previous years bearing nos.201400/48/09/97 /00000140 valid from 29.04.2009 to 28.04.2010 and 201400/48/10 /97/00000134 valid from 29.04.2010 to 28.04.2011. The wife of the complainant Smt. Anu Sharma was admitted in Dayanand Medical College & Hospital Ludhiana on 22.07.2011 and she expired on 29.07.2011 due to cardio-respiratory arrest. The complainant incurred medical expenses of Rs.1,15,284/- at the above hospital on her treatment and made the payments against various receipts. The complainant lodged insurance claim bearing no.201400/48 /11/97/90000106 with OP and asked the OP to pay the expenses incurred by the complainant at D.M.C. Ludhiana on the treatment of his wife. The complainant approached the OP time and again, but to no effect. The OP sent letter dated 21.09.2011 intimating the complainant that the claim of the complainant has been rejected. The complainant has, thus, filed the consumer complaint against the OP directing it to pay the amount of Rs.1,40,000/- to the complainant alongwith interest.

3.                Upon notice, the OP appeared and filed its written reply by raising preliminary objections that OP is a government undertaking company and is bound by its constitution. The complainant is alleged to be guilty of concealment of facts and complaint merits dismissal on this score. It was further pleaded that complainant has concealed material facts in the complaint and this complaint is only an abuse of process of law. The complainant concealed the material fact of pre-existing disease of his wife at the time of taking the health insurance policy in question. It was further averred that the complainant very much knew this fact that his wife was suffering from pre-existing disease and he concealed this fact by not disclosing it deliberately and thereby violated the terms and conditions of contract of insurance rendering it as null and void. It was further averred that the wife of the complainant suffered from pre-existing disease CA ovaries, (FVP TAH), Acute Pulmonary Embolism Post Mech Thrombosis for 5 years prior from the date of admission in the hospital on 22.07.2011 and she expired on 29.07.2011, as per death summary report dated 29.07.2011, issued by D.M.C. & Hospital, Unit- Hero DMC Heart Institute Ludhiana. It was further pleaded in the written reply that such type of pre-existing disease is not covered under the terms and conditions of the insurance policy, vide clause 4.1 of the policy to the effect that "Any pre-existing conditions as defined in the policy, until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her first policy with the company.  Pre-existing condition/disease definition – Any condition, ailment or injury or related conditions for which insured person had signs or symptoms, and/or were diagnosed, and or received medical treatment, within 48 months prior to his/her first policy with the Company."  On merits, this fact is admitted that insurance policy was taken by the complainant. It was also admitted that Anu Sharma wife of the complainant was admitted in the hospital on 22.07.2011 and she expired on 29.07.2011. It was emphatically pleaded in the written reply by the OP that wife of the complainant suffered from pre-existing disease of CA ovaries, (FVP TAH), Acute Pulmonary Embolism Post Mech Thrombosis for 5 years prior from the date of admission in the hospital on 22.07.2011 and expired on 29.07.2011. It was denied that complainant is entitled to recover the amount of Rs.1,40,000/- from the OP. The OP prayed for the dismissal of the complaint on the ground of willful concealment of material fact of pre-existing disease of wife of the complainant, when he took the health insurance policy.

4.                The complainant tendered in evidence his affidavit Ex.CW-1/A alongwith documents Ex.C-1 to C-16 and closed the evidence. In rebuttal of evidence of complainant, the OP tendered in evidence the affidavit of Jagtar Singh Senior Divisional Manager Ex.RW-1/A alongwith documents Ex.O-1 to O-4 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana, dismissed the complaint of the complainant. Aggrieved by this order, the complainant, now appellant has preferred this appeal against the same.

5.                          We have heard the learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us to come to the conclusion as to whether the order of the District Forum under challenge in this appeal is legally sustainable or not. The pleadings of both the parties have been carefully considered by us on the record. Affidavit of Rajinder Kumar complainant Ex.CW-1/A is on the record. He has stated in this affidavit that he purchased health insurance policy from OP bearing no.201400/48/11/97/00000138 for the period from 29.04.2011 to 28.04.2012. He further stated that he has been purchasing the insurance policies from OP for the previous 2 years, vide Ex.C-2 and C-3. He further stated that his wife Anu Sharma was admitted in DMC Hospital on 22.07.2011 and expired on 29.07.2011 due to cardio-respiratory arrest. He incurred medical expenses of Rs.1,15,284/- on her treatment, vide receipts Ex.C-4 to Ex.C-16 on the record. He further stated in this affidavit his insurance claim regarding mediclaim including expenses and damages has been discarded by the OP without any valid reason. Ex.C-1 is the insurance policy for the period 29.04.2011 to 28.04.2012. Ex.C-2 and C-3 are the previous policies taken by the complainant from OP. Ex.C-4 to Ex.C-6, are the bills of Hero DMC Heart Institute dated 30.07.2011 with regard to amount of Rs.1,15,284/- and Rs.3080/-. Similarly, the receipts Ex.C-7 to C-16 have been duly considered by us on the record. Death certificate of Anu Sharma wife of Rajinder Sharma is Ex.C-17 on the record. The OP placed reliance on affidavit of Jagtar Singh Senior Divisional Manager Ex.RW-1/A. He stated on oath that the wife of the complainant Anu Sharma was already suffering from pre-existing disease of CA ovaries, (FVP TAH), Acute Pulmonary Embolism Post Mech Thrombosis for 5 years prior to the date of her admission in the hospital on 22.07.2011 and expired on 29.07.2011, as per death summary Ex.O-3 on the record. It is stated in this affidavit that there is violation of clause 4.1 of the policy by suppressing the fact of pre-existing disease of his wife Anu Sharma, when the instant insurance policy was taken by the complainant and that too in a deliberate manner. Ex.O-1 to O-2 are the terms and conditions of the policy taken by the complainant. Ex.O-3 is the death summary report of Anu Sharma wife of Rajinder Kumar at admission no.57406. It is recorded in it that patient came with complaint CA ovaries 5 years, post oophorectomy (I left), post chemotherapy recurrence of tumour. The death summary report issued by D.M.C. Hospital Ludhiana, which is Ex.O-3 and it is not seriously disputed between the parties and even otherwise such institute of such status would not issue such a false summary report to help any person. From perusal of death summary report of Anu Sharma Ex.O-3, we have come to this conclusion that she was suffering from CA ovaries even 5 years prior to her date of admission, which was on 21.07.2006. This is a serious ailment. Clause 4.1 of the contract of insurance is reproduced as under:

                "Any pre-existing conditions as defined in the policy, until 48 months of continuous coverage of such insured person          have elapsed, since inception of his/her first policy with the    company.

                Pre-existing condition/disease definition – Any condition,   ailment or injury or related conditions for which insured       person had signs or symptoms, and/or were                 diagnosed, and or received medical treatment, within 48   months prior to his/her first policy with the Company."

It is, thus, evident that any disease appearing until 48 months of continuous, coverage of such insured person would nullify the contract of insurance. Clause 4.3 further lays down that the disease, if manifested within 2 years of the operation of the policy, would make a dent in it.

6.                The appellant cited law laid down in "New India Assurance Co. Ltd. & Anr.  Vs.  Murari Lal Bhusri" 2011(III)CPJ-198/199 (NC), wherein it has been held that "no evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken." The appellant also referred to law laid down by our own High Court in "IFFCO Tokio General Insurance Company Ltd.  Vs.  Permanent Lok Adalat (Public Utility Srvices), Gurgaon and others" 2012(1)RCR(Civil)-901, wherein it has been held that "Exclusion clause is standard form of contracts- When bargaining power of the party is unequal and consumer has no real freedom to contract- Courts can strike down such unfair and unreasonable clause in a contract where parties are not equal in bargaining power." The High Courts have the extraordinary power under Article 226 and 227 of Constitution of India to strike down any such clause in contract, if this is violative of the constitution. No such power has been conferred on the consumer Tribunals hence the cited authority is distinguishable from the facts of the case in hand. We have already come to the conclusion on the basis of death summary report of Anu Sharma wife of the complainant that she exhibited the symptoms prior to date of her admission in D.M.C. Hospital Ludhiana. The complainant had not taken any insurance policy since his wife exhibited the symptoms of above referred pre-existing disease in the year 2006-07. It can be safely inferred that complainant was fully aware of the pre-existing symptoms of disease of his wife in the year 2006, as per the death summary report of Anu Sharma, issued by D.M.C. on the record. Reliance was placed on law laid down in "D.D.A.  Vs.  Krishan Lal Nandrayog" 2010(IV) CPJ-7 (SC) by the appellant. We find that the facts of the cited authority are not applicable to his case, because the above case arose out of the case of allotment of flats and inordinate delay in delivery of possession of flats.

7.                In the light of our above discussions, we find that the wife of the complainant was suffering from the above pre-existing disease even prior to taking all the policies by the complainant. This material fact has not been disclosed by the complainant in the proposal form intentionally and thereby the terms and conditions of contract of insurance stood violated, which is based on the principle of uberrima fides and hence the contract stood nullified. The findings of the District Forum Ludhiana cannot be said to be unsustainable and are affirmed in this appeal.

8.                As a result of our above discussions, we find no merit in the appeal of the appellant, the same is hereby dismissed.

9.                Arguments in this appeal were heard on 03-07-2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                           (H.S.GURAM)

                                                                              MEMBER

 

July 7, 2015.                                                               

(MM)