Chandigarh

StateCommission

A/100/2022

Ritu Gupta - Complainant(s)

Versus

ICICI Lombard General Insurance Co. Ltd - Opp.Party(s)

Tarun Gupta Adv.

30 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	100 of 2022
Date of Institution	:	20.06.2022
Date of Decision	:	30.11.2022

 

 

 

 

 

Ritu Gupta w/o Sh.Rajeev Gupta, r/o H.No.138, Sector-25 Panchkula.

 

…Appellant/Complainant

 

V e r s u s

 

ICICI Lombard General Insurance Company Limited, Plot No.149, Fourth Floor, Industrial Area, Phase-1, Chandigarh

….Respondent/opposite party

 

BEFORE:

MRS.PADMA PANDEY, PRESIDING MEMBER. MR.RAJESH K. ARYA, MEMBER MR.PREETINDER SINGH, MEMBER.

  

Present:-    Sh.Tarun Gupta, Advocate for the appellant.

                   Sh.Kaveesh, Advocate for the respondent

 

PER PREETINDER SINGH, MEMBER

 

                   This appeal has been filed by the appellant/complainant, as she is aggrieved of the order dated 26.04.2022 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby consumer complaint bearing no.744 of 2019 filed by her was dismissed.

2.           Following facts narrated by the complainant in her complaint were noted down by the District Commission in the order impugned:-

 

“……   Briefly stated the allegations are that the complainant and her son took health insurance policy from the Opposite Party on 31.07.2015 by paying the premium of Rs.10,620/- (Annexure C-1). As per complainant, in January 2018, the complainant felt acute pain in Epigastric region. The complainant visted Ojas Super Speciality Hospital in Panchkula for chekup and after checkup it was found that there was stone in the gall bladder of the complainant. The complainant admitted the hospital on 23.04.2019, on the same day the complainant was operated upon in the hospital and gall bladder of the complainant was removed and the complainant was discharged from the hospital on 24.04.2019 (Annexure C-2). The complainant had sent cashless request to the Opposite Party on 18.04.2019 (Annexure C-3). However the cashless request was rejected by the Opposite Party on the same day and the reason the complainant underwent sleeve gastrectomy prior to the commencement of policy and the same was not disclosed at the time of policy commencement and as such the policy stood null and void due to non-disclosure (Annexure C-4). The complainant received a letter from the Opposite Party intimated that on the request of the complainant, the policy has been cancelled. As per complainant, no such request had been made by him (Annexure C-5). The copies of bills for an amount of Rs.1,82,270/- are annexed as (Annexure C-6). Alleging that the aforesaid act amount to deficiency in service and unfair trade practice on the part of Opposite Party, complainant has filed the instant complaint.  .…..”

 

3.           Reply was filed by the opposite party, which was noted down by the District Commission in the order impugned as under:-

“….  Opposite Party contested the consumer complaint. As per the terms and conditions of the policy shall be null and void and no benefit shall be payable, in the event of untrue or incorrect statements, misrepresentation, mis-description or non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim, being fraudulent at any fraudulent means or devices being used by you or any one acting on your behalf to obtain any benefit under this policy. The claim of the complainant is not rejected on any flimsy grounds. The company has acted as per the terms and conditions of the policy. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.  ..….”

4.           The District Commission after hearing counsel for the parties and on going through the documents on record dismissed the complaint, by holding as under:-

 “……….We have perused Annexure A-1 of the Opposite Party which is “Health Insurance Proposal Form (Indemnity). The relevant part the application form has been reproduced in the para.

             “Medical and Life Style Information” as below:

    Section A: Have any of the person proposed to be insured over suffered from/are suffering from any of the following. Please tick “Yes” for insured wherever applicable and provide details in Section B

1. ……………               No Ticked
2. ……………               No Ticked
3. ……………               No Ticked
4. ……………               No Ticked
5. ……………               No Ticked
6. ……………               No Ticked
7. ……………               No Ticked
8. ……………               No Ticked
9. ……………               No Ticked
10. ……………            No Ticked
11. ……………            No Ticked
12. ……………            No Ticked
13. ……………            No Ticked
14. …………             No Ticked
15. Has any member consulted with or received treatment from any doctor or other health care provider for any other condition or symptom(s) undergone any hospitalization/        /surgery/currently taking medication(s) for any condition or medical procedures (including diagnostic testing)      No Ticked
16. Have you or any of the persons proposed for insurance been diagnosed with or undergone surgery of any of the following Critical illness, prior at proposing for this cover-Cancer, Heart Attack, Coronary Arterym Byoass Graft, Heart Value Replacement/Repair, Coma, Kidney, Stroke any Transplant, Paralysis, Multiple Scerosis, Motor Neurone Disease        No Ticked

7.  Now we peruse the Annexure C-2 of the complaint, which is the discharge summary. There is a specific mention that the insured was having Healthy Port Marks on ANT Abdominal Wall, which suggests that the insured underwent sleeve gastrectomy prior to the policy commencement.
8.  We are of the view that at the time of the issuance of the new policy, the proposer was under an obligation to disclose the material facts to the Opposite Party. In the application form in the medical & life style column a questionnaire was provided, in which the complainant was to disclose the true facts of the same. The said questionnaire pertains to understand the life style of the insured/proposer and also to have the knowledge that whether or not the proposer/insured is having any running disease or had undergone surgery of any kind before taking the said policy as all these factors collectively assist in the proper underwriting of the policy and then risk is undertaken by the company. Further we are of view that underwriting of the policies is the most crucial function in an insurance company. Underwriting is a term used by life insurers to describe the process of assessing risk, ensuring that the cost of the cover is proportionate to the risks faced by the individual concerned. The underwriting process is an essential part of any insurance application. When an individual applies for insurance coverage, he or she is asking the insurance company to take on the potential risk of having to pay a claim in the future. In its most basic sense, underwriting refers to the process of determining the issuing of an insurance policy. In that process, an underwriter evaluates the risk of the applicant. During this evaluation, the underwriter will decide how much coverage will be offered to the applicant, as well as how much premium the insured should pay for the particular amount of coverage.

9.   Now we proceed to examine the relevant part of the part III of the policy terms and conditions which is reproduced as below:

        “General Terms and Conditions:

1.   Incontestability and Duty of Disclosure

    The policy shall be null and void and no benefit shall be payable in the event of untrue of incorrect statements, misrepresentation, mis-description or non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim, being fraudulent at any fraudulent means or devices being used by you or any one acting on your behalf to obtain any benefit under this policy.

10.     It is also observed that at the time of filling of the application form, the insured was required to disclose the details of the health condition or whether or not the proposer or the insured had undergone any past surgery. All the required details were to be correctly filled and were to be disclosed by the insured/proposer but the same were not disclosed to the company by the proposer. Thus to our mind the contract of insurance was obtained by the insured on the basis of the mis-representation and suppression of the material facts as mentioned in para 7 above...”

5.           Hence this appeal.
6.           We have heard the contesting parties and scanned the material available on the record.
7.           It may be stated here that it is coming out from the findings of the order of the District Commission that the case of the appellant has been dismissed on the ground of misrepresentation & suppression of the material facts on her part, as she failed to disclose that before obtaining the policy in question, she underwent sleeve gastrectomy. This fact, for the first time, came into the picture, on perusal of discharge summary Annexure C-2. Concealment on the part of the appellant in this regard, is evident from Annexure A-1 i.e. “Health Insurance Proposal Form (Indemnity), wherein, against none of the questions posed towards “Medical and Life Style Information” to the effect as to whether she had undergone any treatment before obtaining the policy in question, has been answered as ‘Yes’ by the appellant, meaning thereby that she had declared that she did not take any treatment before obtaining the policy in question, which fact was not correct.  It may be stated here that it is settled law that Contract for insurance is based on utmost good faith/uberrima fides which imposes a duty of disclosure on the insured with regard to material facts. In Satwant Kaur Sandhu v/s New India Assurance Company Ltd.,  Civil Appeal No.2776 of 2002, decided on 10 July 2009, under similar circumstances, the Hon’ble Supreme Court held as under:

“……12. The present case relates to a mediclaim policy, which is entirely different from a life insurance policy. A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment…”

 

8.           Since in the present case, it has been proved that the appellant has concealed material facts with regard to her earlier treatment taken by her before  obtaining the policy in question, as such, the District Commission was right in  dismissing the complaint filed by her.
9.           Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, dismissing the consumer complaint, being based on the correct appreciation of evidence and law on the point, does not suffer from illegality or perversity, warranting interference of this Commission. Resultantly, this appeal stands dismissed with no order as to costs.
10.           Certified Copies of this order be sent to the parties, free of charge.
11.           The file be consigned to Record Room, after completion.

Pronounced

30.11.2022

 

Sd/-

(PADMA PANDEY)

          PRESIDING MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

Rg.