STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 21.12.2017
Date of final hearing: 04.08.2023
Date of pronouncement: 28.09.2023
First Appeal No.1582 of 2017
IN THE MATTER OF:-
- Universal Sompo General Insurance Co. Ltd., Unit 401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Aneheri East, Mumbai-400059, through its Authorized Signatory.
- Universal Sompo General Insurance Co. Ltd., 3rd Floor, SCF- 55, Sector-6, Main Market, Karnal through its Authorized Signatory. ....Appellants
Versus
- Lokesh Gaba S/o Sh. Deep Chand Gaba, R/o H. No. 627, Sector-12, HUDA, Panipat, Tehsil and District Panipat.
- Indian Overseas Bank, near R.P. Stone Clinic, Sector 11, HUDA Market, Panipat through its Branch Manager.
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Sandeep Singh Josan, counsel for appellants.
Sh. Ravi Bharti, proxy counsel for Sh. Vikas Rohal, counsel for respondent No. 1.
None for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 22 days in filing of this appeal stand condoned for reasons as stated in application for condonation of delay.
2. Challenge in this appeal No.1582 of 2017 is invited by insurer i.e. Universal Sompo Gen. Ins. Company Ltd. to the legality of order dated 11.10.2017 passed by District Consumer Disputes Redressal Forum-Panipat (In short “District Consumer Commission”) in complaint case No.182 of 2015.
3. Complainant has alleged that: he purchased Medi-claim Insurance Policy from OPs No.1 and 2/appellants vide policy No.2817/54225447/00/000 dated 05.07.2014 at office of OP/respondent No.3. Sum assured was Rs.5.00 lacs. Premium of Rs.16,076/- was paid for first year and no claim was lodged. He got renewed policy on 04.07.2015 at office of OP No.3 and paid premium of Rs.16,311/- for same sum assured. Complainant, his wife, his father, his mother and his two children were covered under insurance policy (initially taken and subsequently renewed). Complainant’s father-Deep Chand Gaba became ill; he was admitted in Hyderabadi Hospital-Panipat and spent Rs.45,000/- on treatment. Thereafter, complainant’s father was taken to Medanta Hospital-Gurgaon and Rs.3,93,570/- were spent on his treatment. Intimation of admission and treatment was given to OPs/appellants. Insurance company refused to give benefit of cashless policy on 06.07.2015 despite submitting all bills etc., which as per plea, amounted to deficiency in services on the part of OPs/appellants. It led to filing of complaint.
4. OPs No. 1 & 2/appellants in their joint defence have submitted that: complainant has concealed true and material facts; there is no deficiency in services on their part. Issuance of insurance policy and ailment of father of complainant has been admitted. It is asserted that complainant purchased ‘IOB Health Care Plus Policy’. It is admitted that claim qua Deep Chand Gaba-father of complainant was lodged for his admission in Hyderabadi Hospital-Panipat, where he allegedly spent Rs.45,000/- and in Medanta Hospital-Gurgaon, where he allegedly spent Rs.3,93,570/-. It is pleaded that: as per record; Deep Chand Gaba, 62 years old male C/O inferior wall M I/Coronary Artery disease, Diabetes Mellitus, planed for Angiography on 06.07.2015. Policy commenced on 04.07.2014 and as per submitted documents; patient is having diabetes from five years, hence claim was denied under definition of pre-existing condition as per policy terms and conditions because insured took treatment within 48 months, prior to his first policy with them which is not covered under policy terms and conditions. It is pleaded that claim has rightly been repudiated and there was no deficiency in services on their part.
5. OP No.3/Bank in its written statement has submitted that complaint is not maintainable; complainant has no locus standi to file complaint and has concealed true and material facts. Issuance of insurance policy to complainant and his family by OPs No.1 and 2 has been admitted by OP No.3/Bank. It has been denied that OP No.3/Bank is agent of OPs No.1 and 2/Insurer. OP No.3 is collecting bank and as and when any amount was/is deposited in its account, same is remitted to account No.012802000004109 maintained with Bandhra APTS Branch-West Mumbai of OP No.3-bank. As per plea, OP No. 3 is having a tie-up programme with OPs No.1 and 2 to collect money from policy holders. There is no question of approaching and giving information to complainant as alleged in complaint. It is admitted that complainant is having saving bank account with Branch of OP No.3. Other allegations in complaint have been denied and it is pleaded that there is no deficiency in services on part of OP No.3/Bank and complaint be dismissed.
6. On analyzing the pleas and evidence as led; learned District Consumer Commission-Panipat vide order dated 11.10.2017 has allowed complaint and directed OPs No.1 and 2/appellants to make payment of Rs.3,93,570/- to complainant within 30 days of the receipt of copy of order. Complainant has also been awarded Rs.5500/- for mental harassment caused to him and litigation expenses.
7. Feeling aggrieved; OPs No. 1 and 2/Insurer have preferred this appeal. Written arguments have also been filed by appellants on 26.05.2022. Besides this, learned counsel for appellants has orally submitted that insurer has rightly negated the claim of complainant on the ground that complainant’s father was suffering from diabetes from last five years. Since there are pre-existing disease (Diabetic Mellitius II) prior to inception of first policy taken on 05.07.2014, therefore, as per contention; insurer has proved its case to exclude itself from liability under policy. It is asserted that there was clear ‘cheating and fraud’ on the part of complainant and criminal prosecution is warranted against them. It is urged that reasoning adopted by learned District Consumer Commission that complainant was ignorant of terms and condition of policy are not legally justified. In this context it is urged that all terms and conditions of policy were inherently in the knowledge of complainant, ever since the inception of first insurance policy w.e.f. 04.07.2014. It is urged that complainant has not mentioned about his pre-existing disease, while obtaining first policy on 04.07.2014. He was duty bound to disclose all material facts concerning his health. Had, insurer/appellant been apprised of previous health condition by insured on 05.07.2014; insurer/appellant might not had issued insurance policy. On these submissions, learned counsel for appellants has urged for acceptance of appeal.
8. Refuting the contentions, learned counsel for respondent No. 1/complainant has urged that impugned order dated 11.10.2017 passed by learned District Consumer Commission is legally justified on given facts and evidence, warranting no interference in appeal.
9. This Commission has critically and subjectively analyzed rival submissions so put before it.
10. Undisputedly, appellants are the insurer. Medi-Claim Insurance Policy dated 05.07.2014 (Ex.C-6) was issued by appellants for sum assured of Rs.5.00 lacs; it was further renewed w.e.f. 04.07.2015 (vide Ex.C-1). Admittedly, complainant’s father (Deep Chand Gaba) was covered under medi-claim insurance policy initially issued on 05.07.2014 and renewed on 04.07.2015. Complainant’s father obtained medical treatment initially at Hyderbadi Hospital-Panipat and then at Medanta Hospital-Gurgaon, during the currency of renewed Medi-Claim Insurance Policy. Insurer has denied the cashless facility towards treatment of Deep Chand Gaba vide its letter dated 06.07.2015 (Ex.C-9). Integral part of this letter recites that: policy inception date is 04.07.2014 and patient is having diabetes from five years. Hence, claim is denied under definition: pre-existing condition as per policy terms and conditions.
11. Burden to prove credibility of its exclusion from policy lay upon insurer alone, as per mandate of Evidence Act. Curiously enough, no evidence has been led by insurer/appellants in that arena. At legal pedestal, it would justify that insurer appellants have been rightly non-suited. While observing so, this Commission gain strength from the observation laid down by Hon’ble Apex in cases titled as “National Insurance Co. Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd.” (Civil Appeal No.4979 of 2019) decided on 17.05.2023, and “National Insurance Company Limited vs. Ishar Das Madan Lal” (2007) 4SCC 105 wherein it has been held that: “It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of insured.”
12. Discharge summary of Medanta Hospital-Gurgoan recites that Deep Chand Gaba was admitted there on 02.07.2015 and discharged on 06.07.2015. It also recites that: Deep Chand Gaba was admitted to local hospital (Hyderbadi Hospital-Panipat). There, he was diagnosed as being a case of acute IWMI (Thrombolysed). At Medanta Hospital-Gurgaon, Deep Chand Gaba was under treatment of Dr. Naresh Trehan. He was diagnosed having suffering from Diabetes Mellitius II, Coronary Artery Disease. Coronary angiography was done on 03.07.2015. It is quite evident that treatment of Deep Chand Gaba in Medanta Hospital-Gurgaon was concerning heart disease. He had not landed there for treatment of diabetes mellitius II. Appellants have miserably failed to show from discharge summary of Medanta Hospital that prolonged diabetic mellitius II (since last five years as per the case of appellants) was the sole reason which had led Deep Chand Gaba to suffer artery disease and due to which consequent angiography was performed on him. Therefore, there was no justification to repudiate the claim for expenses incurred at Medanta Hospital in relation to heart related treatment of Deep Chand Gaba. As a legal corollary so flowing, it is held that no tangible evidence has been led by insurer to prove that Deep Chand Gaba was suffering from any pre-existing disease of ailment viz. diabetes mellitius II, since last five years.
13. Palpably, insurer has placed reliance upon duly sworn affidavit dated 01.03.2016 Ex.RW2/A of Dr. Rahul Mehta in order to form its base to repudiate the complainant’s claim. This reliance of insurer is wholly misconceived. Reasons are obvious. Firstly, Dr. Rahul Mehta, as per phraseology of his affidavit is working for different insurance companies for processing and settling medi-claims. Naturally, he would always work for benefit of his master. Secondly, Dr. Rahul Mehta had never ever been the treating doctor of Deep Chand Gaba. Consequently, there was no legally acceptable base before insurer/appellants to repudiate complainant’s claim. Allied contention of insurer/appellants that terms and conditions of medi-claim insurance policy, particularly the exclusion clause, were to be inherently presumed to be in knowledge of insured, on very inception of policy, is equally bereft of credence. Learned District Consumer Commission has held that OPs/appellants have failed to prove that terms and conditions were ever communicated to insured. While observing so, learned District Consumer Commission has garner strength from ratio of law laid down by Hon’ble Apex Court in case titled as “M/s Modern Insulators Ltd. Vs. Oriental Insurance Company Ltd.” I (2000) CPJ 1. Learned counsel for appellants could not point out any justifiable reason, while urging in present appeal, that view expressed by learned District Consumer Commission was legally and factually incorrect. This being so, impugned order dated 11.10.2017 is not found faulty on any front.
Rightly, through impugned order dated 11.10.2017 of learned District Consumer Commission-Panipat; direction has been issued to OPs/appellant to make payment of Rs.3,93,570/- (bills of Medanta Hospital-Gurgaon) and also pay Rs.5500/- to complainant for mental harassment and litigation expenses. As a sequel thereto, impugned order dated 11.10.2017 of learned District Consumer Commission-Panipat is affirmed and maintained, being outcome of proper appreciation of facts and evidence brought on record. This appeal being devoid of merits is hereby dismissed.
14. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 28th September, 2023.
Naresh Katyal
Judicial Member
Addl. Bench-II
