KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 837/2016
JUDGMENT DATED: 12.12.2024
(Against the Order in C.C. 63/2012 of DCDRC, Thiruvananthapuram)
PRESENT:
HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR : PRESIDENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
APPELLANTS:
- The Manager, Apollo Munich Health Insurance Co. Ltd., Floor No. 3, Uthradom, Manorama Road, Panavila, Thiruvananthapuram.
- The Branch Manager, Apollo Munich Health Insurance Co. Ltd., Branch Office, Old No. 55, New No. 83, 10th Avenue, Ashok Nagar, Chennai-83.
- Apollo Munich Health Insurance Co. Ltd., 10th Floor, Tower B, Building No. 10, DLF Cyber City, DLF City Phase-II, Gurgaon, Haryana-122 002.
(By Adv. Saji Isaac K.J.)
Vs.
RESPONDENT:
Khuraisha Beevi, Kurumath Veedu, Pothencode, Kalloor, Thiruvananthapuram.
(By Adv. N.G. Mahesh)
JUDGMENT
HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR : PRESIDENT
The appellants are the opposite parties and the respondent is the complainant in C.C. No. 63/2012 on the files of the District Consumer Disputes Redressal Commission, Thiruvananthapuram (for short “the District Commission”).
2. The complainant and her husband together had a health insurance policy covering the period from 29.12.2010 to 28.12.2011 with the opposite parties. The husband of the complainant fell down on 28.03.2011 from the terrace of the house and sustained fracture on both bones of his left leg. The husband of the complainant was admitted in the hospital on 28.03.2011 and he was discharged from there on 02.06.2011. An amount of Rs. 2,04,000/- (Rupees Two Lakh Four Thousand only) had been incurred towards medical expense, rent expense, bystander expense and other miscellaneous expenses together. The complainant submitted a claim form before the opposite parties with all relevant documents and claimed the amount of Rs. 2,04,000/- (Rupees Two Lakh Four Thousand only). However, the claim of the complainant was repudiated by the insurance company stating that the husband of the complainant had pre-existing disease of diabetes mellitus and congestive cardiac failure. It was further contended in the repudiation letter that no intimation was given within seven days of hospitalization. There was also delay in submitting the documents along with the claim application. Since the claim of the complainant was repudiated by the opposite parties, the complainant filed the above complaint alleging deficiency in service on the part of the opposite parties.
3. The opposite parties filed version admitting the policy. However, the opposite parties contended that the husband of the complainant was having type II Diabetes Mellitus and congestive cardiac failure as pre-existing disease at the time of taking the policy and hence the claim was repudiated. The complainant was duty bound to disclose the true facts with regard to the pre-existing disease as the insurance policy is a contract having utmost good faith. In the said circumstances, there is no deficiency in service on the part of the opposite parties.
4. The complainant filed proof affidavit. Exhibits P1 to P5 were marked for the complainant. Proof affidavit was also filed by the opposite parties. Exhibits D1 to D8 were marked for the opposite parties. After evaluating the evidence, the District Commission directed the opposite parties to pay Rs. 2,04,000/- (Rupees Two Lakh Four Thousand only) towards medical expenses with interest, Rs. 25,000/- (Rupees Twenty Five Thousand only) as compensation and Rs. 5,000/- (Rupees Five Thousand only) as costs to the complainant. Aggrieved by the said order, this appeal has been filed.
5. Heard. Perused the records.
6. It is not disputed that the complainant and her husband had taken a policy having coverage for the period from 29.12.2010 to 28.12.2011. It is also not disputed that the husband of the complainant sustained fracture on both bones of the legs due to a fall from the terrace of the house of the complainant. There is also no dispute that the husband of the complainant was treated in the hospital as an inpatient for the period from 28.03.2011 to 02.06.2011. After the discharge from the hospital, the husband of the complainant died. The complainant made a claim before the opposite parties towards the treatment expenses for the period of treatment from 28.03.2011 to 02.06.2011 in the hospital. The claim amount was Rs. 2,04,000/- (Rupees Two Lakh Four Thousand only). The opposite parties in their version admitted the submission of the claim form by the complainant claiming an amount of Rs. 2,04,000/- (Rupees Two Lakh Four Thousand only) in connection with the treatment of the husband of the complainant in the Hospital.
7. The claim was repudiated by the opposite parties as per Exhibit D8 stating three reasons. The first reason is that the husband of the complainant was having pre-existing disease of diabetes for the past five years and congestive cardiac failure for the past four years, which was not disclosed by the complainant at the time of availing the policy. The second reason is that no intimation was given within seven days of hospitalization. The third reason is that there was delay in submitting the documents.
8. The learned counsel for the appellants has submitted that the contention regarding the delay in submitting the documents and the contention that no intimation was given within seven days of hospitalization are not pressed. The memorandum of appeal also does not contain any ground with regard to the said contentions. However, the learned counsel for the appellants has argued that since the complainant did not disclose about the existence of the pre-existing disease of diabetes and congestive cardiac failure, there was justification on the side of the opposite parties in repudiating the claim. In view of the above submission, we are inclined to determine as to whether the opposite parties had established that the husband of the complainant had any pre-existing disease at the time of availing the policy. It is also to be determined as to whether the opposite parties had established that the complainant was having knowledge with regard to the said pre-existing disease.
9. The contention regarding the non-disclosure about the pre-existing disease was raised on the basis of the recitals regarding the history of the patient in Exhibit D6 that the patient had diabetes mellitus for five years and congestive cardiac failure for four years. It appears from Exhibit D6 that the history of the patient would reveal that the patient was having diabetes mellitus for five years and congestive cardiac failure for four years. Exhibit D6 is the medical record produced and marked for the opposite parties. The opposite parties did not incline to examine the doctor to prove the authenticity of the recitals in this regard in Exhibit D6.
10. The Hon’ble Supreme Court in Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, reported in 2024 KHC 6207 : AIR 2024 SC 2019 held in paragraph 41 as hereinbelow:-
“41. At this stage, we may also dilate on the aspect of burden of proof. Though the proceedings before the Consumer Fora are in the nature of a summary proceeding. Yet the elementary principles of burden of proof and onus of proof would apply. This is relevant for the reason that no corroborative evidence to what has been deposed in the affidavit is let in by the insurance company in order to establish a valid repudiation of the claim in the instant case. S.101 of the Evidence Act, 1872 states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This Section clearly states that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. Simply put, it is easier to prove an affirmative than a negative. In other words, the burden of proving a fact always lies upon the person who asserts the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Further, things which are admitted need not be proved. Whether the burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. The party on whom the burden lies has to stand on his own and he cannot take advantage of the weakness or omissions of the opposite party. Thus, the burden of proving a claim or defence is on the party who asserts it”.
11. The Hon’ble Supreme Court in Mahakali Sujatha (supra) further held that the mere mentioning of certain half baked details in an affidavit of evidence is not proof of the facts unless that is supported either by other documentary and / or oral evidence.
12. It was also held in Mahakali Sujatha (Supra) that the burden of proving the fact, which excludes the liability of the insurer to pay compensation, lies on the insurer alone and no one else.
13. In the light of the aforesaid settled position on burden of proof, it has to be analysed if the appellant in the present case had adequately discharged the burden of proof about the suppression of pre-existing disease of the insured.
14. It is contended by the complainant that the doctor neither examined the husband of the complainant nor verified any document to arrive at the conclusion that the husband of the complainant had pre-existing disease. It is further contended in the complaint that it was not based on the facts and materials that the history about the pre-existing disease was recited in the medical records. It is also specifically stated in paragraph 7 of the complaint that the husband of the complainant was not having any pre-existing disease. It is also contended in the complaint that the husband of the complainant was not suffering from any disease at the time of joining the scheme. The above contentions were reiterated by the complainant in the proof affidavit. However, the complainant was not cross-examined. Therefore, the evidence of the complainant in this regard remains as unchallenged testimony.
15. The opposite parties contended that the opposite parties directed an agency to investigate about the claim of the complainant. Exhibit D7 is the report of the said investigating agency. The investigating agency inferred that the prolonged hospitalization was necessitated only because of the pre-existing disease. It appears that all the findings in Exhibit D7 were based on surmises and conjectures, without having any factual foundation.
16. The only material available before the Commission is the recitals in Exhibit D6 regarding the history of the patient. No doctor was examined to prove the same. Even though the complainant had specifically contended in the complaint and reiterated the said contention in the proof affidavit that the husband of the complainant had no pre-existing disease, the opposite parties did not incline to take any step to prove that the husband of the complainant had pre-existing disease, by adducing convincing evidence in accordance with law.
17. In this case, the opposite parties alleged that the insured had pre-existing disease of diabetes mellitus and congestive cardiac failure and hence it was the duty of the opposite parties to prove it. The mere recitals in Exhibit D6, without having any authenticity, cannot be accepted to hold that the husband of the complainant had pre-existing disease. Since the opposite parties failed to prove that the husband of the complainant had pre-existing disease, the opposite parties were not justified in repudiating the claim of the complainant. The mere production of the case sheet would not amount to proof regarding the pre-existing disease, particularly when its authenticity was not established by adequate proof. In the absence of any proof, we are not able to hold that the husband of the complainant had any pre-existing disease and that the complainant had not disclosed about the pre-existing disease at the time of availing the policy. This being the situation, the repudiation of the claim by the opposite parties cannot be justified. Therefore, there was clear deficiency in service on the part of the opposite parties. In the said circumstances, the finding of the District Commission in this regard does not call for any interference by this Commission. The District Commission had directed to pay only the amount spent by the complainant towards the medical expenses in connection with the treatment of her husband in the hospital. The District Commission also directed to pay Rs. 25,000/- (Rupees Twenty Five Thousand only) as compensation and Rs. 5,000/- (Rupees Five Thousand only) as costs. The compensation and the costs ordered by the District Commission do not appear to be disproportionate and hence the compensation and the costs ordered by the District Commission do not warrant any interference by this Commission.
In the result, this appeal stands dismissed. In the circumstances of the case, there is no order as to costs in this judgment.
The statutory deposit made by the appellants shall be given to the respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.
JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT
jb AJITH KUMAR D. : JUDICIAL MEMBER
