Orissa

Rayagada

CC/12/2018

Mohammad Sajjad - Complainant(s)

Versus

Universal Sampo General Insurance Co. LTD. - Opp.Party(s)

Sri Jagdish Panda

15 Apr 2021

ORDER

DISTRICT   CONSUMER DISPUTES REDRESSAL COMMISSION,

POST  /  DIST: Rayagada,  STATE:  ODISHA,  Pin No. 765001.

                                                      ******************

C.C.case  No.      12      / 2018.                            Date.     4     . 3. 2021

P R E S E N T .

Sri   Gadadhara  Sahu,                                                      President.

Smt.Padmalaya  Mishra,.                                                 Member

 

Mohammad Sajjad, S/O: Abdul Bari, Nehru  Nagar, Ist. Lane, Po/Dist: Rayagada, State:Odisha, Pin No. 765 001.                                                                                                                                                                                                  …..Complainant.

Versus.

1.The Manager,  The Universal  Sampo Genera l  Insurance   Company Ltd., Sector- 62, Noida, 201 300  Uttar Pradesh.               

2.The  Manager, The  Universal Sampo Genera l   Insurance  Company Ltd., Andheri (E), Mumbai- 400059.

3.The Branch Manager, Allahabad  Bank,  Rayagada.                        …Opposite  parties.

Counsel for the parties:                         

For the complainant: - Sri  Jagadish Panda, Advocate.

For the O.Ps 1 & 2  :- Sri  K.N.Samanataray, Advocate, Jeypore

For the O.P. No.3:- Set exparte.

 

JUDGEMENT

 

1.The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non payment  of Medi claim amount a sum of Rs.2,80,966.00  towards Medi claim policy No.2857/56479539/01/000 for which  the complainant  sought for redressal of the grievances raised by the complainant. 

2.Upon  Notice, the O.P No.1 & 2  put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps  1 & 2 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act.  The facts which are not specifically admitted may be treated  as denial of the O.Ps. No.1 & 2  Hence the O.Ps 1 & 2  prays the forum to dismiss the case against  them  to meet the ends of justice.

The  O.P. No.3 (Allahabd Bank) had received notice from this District Commission but  neither appeared nor filed written version before this forum. Hence the O.P. No.3 set exparte.

Heard arguments from the learned counsels of both   the    parties.        Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                    FINDINGS.

On the basis of the pleadings of the parties, the sole question of determination is  Whether  the complainant is entitled  to insurance claim made by him ?

On perusal of the record this District Commission has  observed  there is no dispute that the complainant   had Health  care plus    Insurance plan policy   bearing No. 2857/56479539/01/000  for a yearly premium  of  Rs. 9,104.00   which  was valid for a period from  Dtd. 24.8.2017  to 23.08.2018 for covering the risk upto the basic sum insured for family for an amount of Rs.4,00,000.00 (copies of the  policy is available in the file  marked as Annexure – I).  The complainant  was  suffered  from ailment in the form of CAG  confirmed  Triple Vessel disease  and under went OP CABG x  4  grafts and admitted  on Dt. 13.09..2017 at Apollol Hospital, Vizag and was  discharged on  Dt.23.09.2017 .   The complainant had spent total Rs. 2,80,966/- and submitted  his claim along with  required documents  to the O.Ps  for reimbursement of above amount.

        The O.Ps disputed that the claim is an early claim.  The O.Ps  repudiated the medi claim on the  grounds  that  as the  life insured had not disclosed about his health problems  when the proposal was given.  Further the  O.Ps  disputed that  the life insured was having  past  Medical  history  i.e.  HTN/CAD since  10 years on regular  treatment  and  Mild CAD, Triple vessel disease and the  insured did not declared  his past medical history at the time of policy inception date. In  this connection the O.Ps  had repudiated the claim of the complainant  on Dt. 21.12.2017.

The O.Ps in their written version contended that the case is not maintainable before the forum.Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. It is held and reported in  CPC- 1991, page -540 the  Hon’ble  Hariyana State  Commission held that when ever there is any delay or dilatoriness in finalizing  the insurance claim, the same would be tenta  mount to a  deficiency  in service and thus comes squarely within the  purview of Consumer Forum.  Once it is held that default or negligence in the  settlement of an insurance claim is a deficiency  in service then an arbitrary  or mischievous  rejection  of an insurance claim  would patently  be a default  within its larger  meaning. On principle , it would   seem  some what manifest that the mere repudiation of the insurance claim cannot itself operate  as a  jurisdiction bar for redressel forums under the Act.  This is further  made it clear  it is held and reported  in CPR-1991(2), page No.18  where in  the Hon’ble National Commission  clearly defines  the mere unilateral  rejection of an insured parties  claimed by the insurer does not  per  se  operate as jurisdictional bar to seek redressal before  the forums under the Act. Accordingly answered the issue.   The complaint  petition  is  maintainable  under the C.P. Act.

The  next  point for consideration are :-

Whether there is any deficiency  in service on the part of the O.Ps ?

 “Service” is defined in section 2(1)(o)  of the Act  thus:-

            “Service”means service of any description which is made available  to potential    users and included the provisions  of facilities  in connection with banking,  financing, insurance, transport, processing, supply of  Electrical or other energy, board  or  lodging or both,  entertainment,  amusement or the purveying   of news or information, but does not include the rendering of any service free of charge or under conract or personal service”.

“Insurance” is one of the service  enumerated there and falls  within the ambit of definition.

        The complainant was admitted in to the scheme after medical examination by the O.Ps and he was found fit to have no such disease with him and after getting such medical certificate the O.Ps have admitted  him into the said scheme. But now the O.Ps are vehemently argued   that suppression of material facts of previous illness by the life assured and repudiated the claim. So the rejection of the claim by the O.Ps are unfair since the spirit of the service advertised by them is for  providing  such medical assistance in case of suffering and they have failed to perform their contract.  At this  stage this plea can not be entertained.

        The brochure clearly reveals the facts and no where they have explained the period in which the insured can claim reimbursement. Only on placing claim they have played the fraud with him showing  Section-45 of the Insurance Act and they have never explained the risk factor to the complainant.

        In the present case in hand this forum observed the O.Ps officers and agent  were running after the complainant  for the policy and till they succeeded in their attempt they have  made false promises and with the help of their doctor who has given  a ‘certificate of fitness’  to get insured  and then they accepted the proposal and premium from the complainant only to collect the heavy premium for a longer duration. Their target is only to get their commission on the policy and with an intention to deny the liability later on.

         It is admitted by both the parties that life assured has policies with sum assured of Rs.4, 00,000/- and the insurer was admitted at  Hospital  for medical check up  on Dt.13.9.2017 which is within 6 months of commencing of the policy. The opposite parities has taken plea that the policy holder has suppressed the facts regarding his previous illness and even false declaration and as such the claim was rightly repudiated. The repudiation of insurance claim by the Opp.Parties in the above ground is not tenable in the eye of law. While selling the policies by the agent of the Opp.Parties, they should have enquired the matter thoroughly and in every case the agent are also taking medical certificate from the doctor before signing their proposal form and how can the O.Ps repudiate the claim on the ground that the complainant has suppressed the facts regarding his previous illness to which we cannot believe. The Opp.Parties cannot repudiate the claim in the above ground. No doubt as per their rules and regulations they can investigate the matter and settle the claim as soon as possible. As per insurance policies, if the insurer signing of the policy proposal form and has paid the premium amount, the insurance company is bound to pay the insured amount to the insurer and they cannot repudiate the claim by taking any different plea. Hence, in view of the aforesaid facts  and circumstances of  the case, we are of the opinion that  the complainant is eligible to get the insurance amount and the Opp.Parties are liable to pay the insurance amount.

 

             The  complainant  submitted  that  at the time of opening of the  policy insured  was free  from any  physical disease and  was also  mentally sound.

The sole ground for rejection of the claim of the complainant is non disclosure of an ailment  in the claim form which is a  breach of contract. As discussed earlier  the claim form used to be filled up by the agent of the O.Ps  and the complainant  are mostly not aware of the entire contents of the claim  application. 

  As discussed  earlier it is  general practice that the claim form is  generally  filled up by the  agent and only  the signature  of the insured is taken.  The  exact terms and  condition  of the policy  are never explain  to the insured .   Insurer are never serious about the  terms and condition of the policy at the time of taking the policy but suddenly  became very sensitive  about the terms and condition  when any claim is made.  So in our opinion in the  instant case the  ground  of repudiation of claims i.e. for non  disclosure of previous ailment is not a valid ground  particularly when  the same is not    related to the disease for which    he is  treated and  insurance claim  is made to the O.P.

The  O.Ps in their  written version  contended that the complainant concealed the many material  facts concerning to this case. In the present  case the  O.Ps have entered in to  an insurance contract with the complainant and by repudiation of such claim  they have defeated the  very  purpose of the insurance. Hence the complainant is deemed  to have   not  suppressed any material facts and after  due    consideration  the O.Ps have issued the policy accepting the conditions.

            M/S. New India Assurance Co. Ltd. Vrs.  Sudhira Varshney  on Dt. 24^th. Nov. 2008 showing the contract in which  pre existing  disease appears in the document. New India Assurance Co. Ltd. Vrs.  S.K. Khosala  30^th. May 2006. In the case of Kalayani Acti  Vrs.   LIC of India  (1979) Madrasa LW 662 the court  has held that there must be satisfactory proof that the assured  was suffering from ailments.

            The National  Insurance Co. Ltd.  Anr. Vrs. Umesh Prasad Verma  & Anr.  The Hon’ble  State  CDR Commission, Chatisgarh, Raipur held that appellant have committed deficiency in service by repudiating the claim on the ground of suppression  of material facts  which is not justified.

 

Once proposal is accepted and policy is issued  LIC is liable for payment of claim   2011(4) CPR LIC of India Vrs   Prabhasa  Ranjana Nayak.

The O.P. had not rejected/cancelled the proposal and accepted  this premium  from the policy holder which was also not communicated to the complainant  deems that the O.P. had not expressly  intimated  whether the proposal  form had rejected /cancelled or accepted.  But receive the premium amount from   policy holder that means that the proposal form is accepted by the O.Ps.

 

Further the O.P. submitted that judgments of the courts  are not to be construed as statute in contrary  complainant  vehemently  opposed.

Before going to conclusion  the forum  like to follow  the findings of higher judiciary settled principles of law  statute as well as  Maxims  as discussed below  with nutshell to avoid brevity. 

Justice fair play  & judicial ethics demands that the parties should   adherence  to their  mutual agreement without causing injustice  to the cause of justice.

 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations  there  exists deficiency in service on the part of the  O.Ps which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed

ORDER.

            In  resultant    the complaint petition is allowed  in  part  on  contest against  the O.Ps.  1 & 2 and dismissed  against   the  O.P. No.3 (Allahabad Bank, Rayagada).

The O.Ps  No.1 & 2 (Insurance Company) are ordered  to reimburse the Medi claim  amount   a sum of   Rs.2,80,966/- ( As per bill) to the complainant.  Parties are left to bear their own cost.

 

The OPs  No.1 & 2 (Insurance Company) are   ordered to make compliance the aforesaid Order within  60 days from the  date of  receipt  of this order      failing which  an interest  @ Rs.9%  per annum  would  accrue on the above  amount . from  the date of  filing  of this case i.e. on Dt.02.02.2018   till  realization.

   Serve the copies of above order to the parties free of cost.

 

Dictated and corrected by me

Pronounced on this      4th   Day of     March, ,   2021.

 

Member.                                                             President