CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.348/2007
SMT. PARVEEN MAGU
W/O SH. B.R. MAGU
68, RING ROAD, LAJPAT NAGAR-III,
NEW DELHI-110024
…………. COMPLAINANT
Vs.
- M/S UNITED INDIA INSURANCE COMPANY LTD.,
DP-23 DEVIKA TOWERS
607-608, NEHRU PLACE, NEW DELHI-110019
- M/S INDIAN OVERSEAS BANK
14-15, FARM BHAVAN, NEHRU PALCE, NEW DELHI
- M/S FAMILY HEALTH PLAN LTD.,
PLOT NO.8, 3RD FLOOR, BUSINESS RETAIL CENTRE,
NANGAL RAYA OPP. D BLOCK, JANAKPURI,
NEW DELHI-110046
…………..RESPONDENTS
Date of Order:18.10.2016
O R D E R
A.S. Yadav, President
The mediclaim scheme “IOB Health Care Plus” was launched for the benefit of SB or CD account holders of IOB in the age group of 18-56 years whereby the medicalim insurance cover is provided by OP-1 and OP-2 is the Indian Overseas Bank and OP-3 is the TPA of OP-1. Complainant took the health policy which was for the period 20.10.05 till 19.12.06 and paid a premium amount of Rs.4213/-. The copy of the policy is annexed with the complaint. It is stated that at the time of negotiations for the policy, all the terms and conditions were never disclosed and were always sent subsequently alongwith the policy. On 18.10.2006, complainant complained about general weakness, pain in the right leg, vomiting and loose stools. Complainant was initially taken to Spring Meadows Hospital and on the same day shifted to Fortis Hospital, Noida where she was treated and was discharged on 24.10.06 and was advised to undergo knee replacement. Complainant was again admitted in the hospital on 01.11.06 after her complaints of pain in bilateral knees. The claim was lodged with OP in respect of the treatment taken earlier for a sum of Rs.54,062/-.
It is stated that regarding knee replacement, complainant was operated on 04.11.06 and was discharged on 10.11.06. Regarding the expenditure incurred at the time of second admission, complainant further lodged a claim for a sum of Rs.3,83,478/-. The emails were sent for settlement of the claim and complainant was assured settlement of the claim shortly but the claim was not settled. In respect of the initial claim, cashless facility of Rs.12,000/- was provided only. Ultimately the claim was repudiated by OP vide communication dated 11.12.06 on the ground that complainant was known case of Osteoarthritis for the last 12 years. It was a case of pre-existing disease.
It is further stated that complainant was herself not aware about her illness and there was no reason for her to disclose the same at the time of taking the policy. If the OP does insurance without any medical it only takes the risk and has no right whatsoever to refuse the claim on false, frivolous and misconceived grounds. Complainant has prayed that OP be directed to pay total claim of Rs.4,25,540/- and also to pay Rs.2 lakhs for mental agony cause to complainant and a penalty of Rs.50,000/- for deficiency in service.
OP-1 in the reply took the preliminary objection that complainant has suppressed material facts from OP-2 at the time of taking insurance cover as she has pre-existing history of Osteoarthritis for the past 12 years. There was deliberate concealment of her medical history at the time of taking of insurance policy and this deliberate concealment of material facts tantamounts to violation of the principle of Utmost Good Faith. It is stated that there was no deficiency in service on the part of OP-1. It is prayed that the complaint be dismissed
So far as OP-2 is concerned, OP-2 took the preliminary objection that the complainant was provided with the proposal forms and salient features of policy. The columns provided for in the proposal form itself mandated declaration regarding the disease/injury/illness to complainant and complainant was therefore bound and legally obliged to disclose any disease illness and/or injury etc. failing which the claims against pre-existing disease were liable to be repudiated for misrepresentation/suppression of material facts by the complainant. It was also clear that the servicing of the policy has to be done by the OP-1 Insurance company/TPA and no liability arises of IOB under the said policy. It is stated that complainant has in the proposal form itself, made a declaration and warranty inter alia that the statements therein were true and correct and that the complainant was maintaining good health. It was declared by the complainant that she had read the salient features/terms/conditions/exceptions of the scheme. That it is even otherwise submitted that at no point of time in the past till the filing of the present complaint has the complainant raised the plea of not having been provided with the terms and conditions of mediclaim policy. All the exclusions in the policy inter alia included that the policy does not cover pre-existing disease were clearly in the knowledge of the complainant. It is stated that there was no privity of contract between the complainant and OP-2. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for the parties and carefully perused the record.
It is not in dispute that the proposal form was duly filled up by the complainant in respect of this “IOB Health Care Plus” policy launched by OP-1 wherein complainant has stated that “I hereby declare and warrant that the above statements are true and complete. Myself and family members are maintaining good health subject to item No.11. I have read the salient features of the scheme and willing to accept the coverage subject to the terms, conditions and exceptions prescribed by the Insurance Company as per the Agreement between Indian Overseas Bank and United India Insurance Company Limited. I understand that in case of any claim under the Policy, Indian Overseas Bank will not undertake any responsibility or will not accept any correspondence and the same have to be pursued with the Insurance Company/Specified TPA only.”
It is evident from the proposal form that complainant has specifically stated that she is maintaining good health. It is a settled law that when a person obtains a policy, he is supposed to disclose each and everything regarding his/her health. Now it is appropriate to look at the discharge summary of the hospital dated 24.10.06 wherein it is stated that “it is a known case of Hypertension(diagnosed 5 years ago) on regular treatment(Atenolol). Patient was diagnosed Osteoarthritis around 12 years ago by a local doctor and has been taken pain killers(Nimulid) almost twice a day”, meaning thereby that the complainant was suffering from hypertension 5 years prior to taking of the policy and she was on regular treatment and she was diagnosed Osteoarthritis around 12 years ago and was taking pain killers for that. This information was concealed by the complainant at the time of taking of the policy. The contention of the complainant that she herself was not aware of the ailment is belied by the discharge summary. The complainant has further taken the plea that in case the complainant was suffering from the any disease, it was for the insurance company to get her medically examined. It is not a question of complainant to be medically examined before taking of the policy it is a question of disclosure of facts by a person regarding his/her health. The only question comes that complainant, at the time of taking policy, was knowing that she is suffering from hypertension for the last 5 years and osteoarthritis for the last 12 years. She has not disclosed these facts.
So far as OP-2 is concerned, it is clear in proposal form that OP-2 is not liable for any claim under the policy.
It is clear that from the proposal form that the complainant has shown her state of health good whereas the fact remains that she was suffering from ailment as detailed above. This fact was suppressed by the complainant hence in terms of clause 8(1) of the policy, the OP was justified in repudiating the claim. Moreover in this case there is a complete suppression as in fact the complainant was not in good health when the policy was taken. She was suffering from diseases as detailed earlier.
In this regard reference is placed on case on the case of LIC & Ors. Vs Ramamani Patra & Anr. – IV (2015) CPJ 529(NC) – decided on 03.8.15. Para 7, 8 and 9 are reproduced as under:-
“7. Secondly, it must be borne in mind that the contract between the parties falls in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. 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 the proposer to determine whether the information sought for, is material for the purpose of the policy or not. This view fully dovetails with “Joel v. Law Union & Crown Insurance Company, (1908) 2 KB 863(CA)”; “MacGilliwray on Insurance Law(10th Edn.)”, “In Carter v. Boehm, (1558-1778) All ER Rep183” and “Satwant Kaur Sandhu V. New India Assurance Co. Ltd., VI(2009) SLT 338=IV(2009) CPJ 8 (SC)=IV(2009) 8 SCC 316” and “P.C. Chacko and Anr. V. Chairman, LIC of India, III (2008) CPJ78(SC)=IX(2007)SLT 533=IV(2007) ACC 773(SC)=(2008) 1 SCC 321”.
8. The time when the proposal form is filled in, irrespective of the fact whether the risk started earlier or not, is the crucial, main pillar and the foundation upon which the whole case rests. This fact is most important, single determinant of this knotty problem. In 01.8.1994, it was in the knowledge of the assured that he was suffering from above said diseases. It was the bounden duty of the assured to disclose the facts at that time. He had no qualms about lying. Consequently, his nominee or LRs are not entitled to any compensation.
9. The third important question is that the duty of the Consumer Fora is not to find out whether there is a nexus between the accidental death and disease suppressed by the insured. That has nothing to do with the grant of compensation. The nexus point has to be eschewed out of consideration otherwise the uberrimae fidei shall stand violated. In light of the above discussion, we accept the Revision Petition, set aside the orders passed by the Fora below and dismiss the complaint moved by the complainant. No order as to costs.”
It is also useful to refer to case of Dilraj Singh(Mrs.) Vs. LIC & Anr. – IV(2015) CPJ 665 (NC) – decided on 09.9.15 - In that case the policy was taken on 14.1.10 and in that policy he has revealed his state of health as good whereas the insured died on 26.6.11 while admitted in the hospital at USA. The hospital, in the certificate of hospital treatment, has shown that in fact the insured was suffering from the disease since 2009 and this fact was suppressed. It was held that repudiation of the claim was justified.
Similar view was taken in case of Shakuntala Vs LIC - III(2014) CPJ 517 (NC).
Ld. Counsel for the petitioner has referred to the judgment of the Hon’ble State Commission of Delhi in case of National Insurance co. Ltd. Vs Sh. Srichand Jain - decided on 04.5.06 and United India Insurance Co. Ltd. Vs Bhupinder Singh - decided on 01.05.07. The facts of these cases were entirely different.
In view of the law laid down by Hon’ble National Commission and Hon’ble Supreme Court, the present complaint is not maintainable as the policy was obtained by suppressing the facts hence OP was justified in repudiating the claim on account of pre-existing disease. Complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (RITU GARODIA) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
