STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

Date of Institution:27.03.2018

Date of final hearing: 04.05.2023

Date of pronouncement: 14.06.2023

First Appeal No.370 of 2018

IN THE MATTER OF:

The Oriental Insurance Co. Ltd. Court Road, Jagadhri, Distt. Yamuna Nagar, through Regional Office, LIC Building, 2^nd Floor, Jagadhri Road, Ambala Cantt.                                                      

…..Appellant

Versus

1. Rajat Garg, age 48 years, S/o Sh. R.P. Singh.

2.      R.P. Garg, age 72 years, S/o of Late Sh. Babu Ram Garg,

          (now deceased) through his LRs namely:

          (i)Rajat Garg already arrayed as Respondent No. 1.

          (ii)Sharad Garg S/o Late Sh. R.P. Garg,

Both LRs, being residents of Suvidha Motors, Near S.K. Hospital, Jagadhri, Distt. Yamuna Nagar.

                                                …..Respondents

3.      Vipul Medicorp TPA Pvt. Ltd., 515 Udyog Vihar, Phase-V, Gurgaon-122016 through its authorized signatory.

…..Proforma Respondent

CORAM:    Naresh Katyal, Judicial Member

Argued by:-Mrs. Swatantar Kapoor, counsel for theappellant.

                   Sh. A.P. Jain, counsel for respondent No. 1 and 2.

Service of respondent No. 3 dispensed with.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          Delay of 09 days in filing of present appeal stand condoned for the reasons mentioned in the application for condonation of delay.

2. Challenge in this appeal No.370 of 2018 is to the legality of the order dated 15.02.2018 passed by District Consumer Disputes Redressal Forum, Yamuna Nagar at Jagadhri(In short “District Commission”) in complaint case No.170 of 2016.
3. Rajat Garg-complainant No.1 took Medical Policy namely “Happy Family Floater Policy”from OP No. 1 in year 2011 bearing policy No. 253202/48/2012/1284 for one year. Sum assured was Rs.2,00,00/-. This policy continued in years 2012,2013 and 2014 vide different policy numbers and no claim was claimed by complainants. Policy was renewed by OP No.1 in year 2014 after taking due premium. It bears policy No.261701/48/2015/673 dated 19.09.2014 effective from 19.09.2014 to 18.09.2015 and in said policy; family of complainant was covered.  Unfortunately, father of complainant No. 1 namely Sh. R.P. Garg-complainant No.2 (now deceased) got heart problem in year 2014; and he got his angiography done from Alchemist Hospital, Panchkula, Haryana in November, 2014. He spent Rs.10,500/-on angiography.His arteries were found blocked; one of his artery was 95% blocked and other artery was 70% blocked.  Complainant No.2 was operated in G.B Pant Hospital, New Delhi on 05.12.2014,on which Rs.1,30,456/- were spent.Complainant No.1lodged claim with the Op No.1  for reimbursement of amount spent on treatment of his father, under policy, and submitted necessary documents. On checking from internet, it has been revealed that Op No.1 has repudiated the claim vide letter dated 20.02.2015 on presumption that arteries were blocked due to diabetes.  So, as alleged,it is clear case of deficiency in service on the part of OPs.Complaint has been filed for direction to OPs to reimburse the amount of Rs.1,40,950/- as incurred by them alongwith interest @18% p.a. and further to pay Rs. 25,000/- as compensation for harassment and mental agony as-well-as litigation charges.
4. Insurer/Appellant raised contest. In its defence; it is pleaded in preliminary objections that complaint is not maintainable. Complainants have concealed the true and material facts from Forum.  It is pleaded that the complainant No.2 was having diabetes for the last 15 years and in the proposal form, in the column of pre-existing ailment, it was stated that there is no pre-existing ailment either to the complainant No.2 or any of the family members, covered under the policy.  It is pleaded that the problem of diabetes creates complications in body, which in result, creates problem of artery blockage and in the treatment record of complainant No. 2 the treating doctor had categorically mentioned that the complainant No.2 (Sh. R.P. Garg-since dead) had diabetes for last 15 years. It is pleaded that under terms and conditions of policy; pre-existing health condition or disease has been defined as any condition, ailment or injury or related condition(s) for which you had signs or symptoms and/or were diagnosed and/or received medical advice/treatment within 48 months prior to first policy issued by insured. It is clearly mentioned that exclusion clause will also apply to any complications arising from pre-existing ailments/disease or injuries. Such complications shall be considered as part of pre-existing health conditions or disease. The problem of complainant No.2 is direct result of complications of diabetes. Repudiation of claim is legal and valid.  There is no deficiency in service on the part of OPs.  On merits, the objections raised in the preliminary objections are reiterated. It has been denied that blockage of arteries were due to age factor. The complainant wants to take benefit of his own wrong. On these pleas; dismissal of complaint has been prayed.
5. Parties to this lis led evidence, oral as well as documentary.
6. On analyzing the same; learned District Consumer Commission allowed the complaint vide order dated 15.02.2018 and directed OP/insurer to pay Rs.1,40,956/- to complainants and Rs.3,300/- as lump sum compensation on account of harassment, mental agony and litigation charges within 45 days failing which complainants have been held entitled to interest @ 9% p.a. from the date of order,till realization.
7. Feeling aggrieved; insurer has filed this appeal.
8. Learned counsel for appellant and learned counsel appearing for respondent No. 1 and LRs for respondent No.2 have been heard at length. With their able assistance; record too has been perused.  Written arguments have been submitted by both the parties which too have been considered subjectively.
9. Learned counsel for the appellant has urged that learned District Commission has grossly erred in law by not considering the fact that R.P. Garg (since deceased) had a prolonged pre-existing diabetes disease which led to his heart problem. The pre-existing heart disease has not been mentioned in the proposal form.The column in this regard has been left blank in policy. Thus, insured is guilty of breach of good faith which makes the insurance contract, void ab-initio.Exclusion clause No. 4.1 of policy is attracted pertaining to pre-existing health condition of disease or ailment/injury.  It is urged that insured has failed to produce of report of medical check-up done by insurer, thereby giving clean chit of father of complainant.  It is urged that insured’s claim was repudiated on presumption that his heart arteries were blocked due to diabetes. Email Annexure R-5 substantiates this fact. To stimulate this contention learned counsel for appellant has relied upon judgmentof Hon’ble Apex Court in case titled as “General Assurance Society ltd. Versus Chandumull Jain and Another”AIR 1966 SC 1644in which Honb’le Apex Court has held that “ there is no difference between a contract of insurance of any other contract except that in a contract of insurance there is a requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity of doubt”.
10. Per contra, learned counsel for respondents No.1 & 2 has supported the impugned order dated 15.02.2018 passed by learned District Consumer Commission by urging that it is outcome of proper appreciation of facts and evidence. Clause 4.1 is not attracted. It is urged that proposal form has not been brought on record by insurer.  Even if, in column of previous ailments word ‘No’ is mentioned, yet, it will not become ground to presume any concealment on the part of insured. Concealment can be proved only from proposal form. As urged mere, reliance on policy, without considering proposal form is unjustified. Appellant has withheld the best evidence which they could lead. It is urged that clause 4.1 and clause 4.3 of the policy are related to each other and they cannot be read in isolation. Clause 4.3 is an explanation of clause 4.1. It is urged that heart ailment of R.P. Garg has no nexus with alleged pre-existing diabetes and there is no evidence on record that heart ailment suffered by deceased was the off shoot of diabetes only, and not on account of any other reason.
11. Admittedly, Medi-claim policy of insurer/appellant under name and style ‘Happy Family Floater Policy’was issued initially in the year 2011 to complainant No. 1 (Rajat Garg).It continued for subsequent years viz 2012 and 2013 and eventually it was also renewed in year 2014 w.e.f. 19.09.2014 till 18.09.2015.R.P Garg was included in the list of beneficiaries in all the previous policies and also in the policy Annexure C-4.Annexure C-1 is the policy of period 19.09.2011 to 18.09.2012. Annexure C-2 is the policy of period 19.09.2012 to 18.09.2013. Likewise, Annexure C-3 is the policy of period of 19.09.2013 to 18.09.2014 and finally Annexure C-4 is the policy valid from 19.09.2014 to 18.09.2015. It is during the currency of this policy period (19.09.2014 to 18.09.2015-Annexure C-4) that Sh. R.P. Garg had suffered heart problem. His angiography reflected blockage in arteries which ultimately landed him to obtain medical treatment on 05.12.2014 at G.B. Pant Hospital, New Delhi and stunts were affixed in arteries. Annexure C-5 contain bill dated 11.12.2014 of the amount of Rs.1,40,956/-. Annexure R-5 is the document strenuously relied upon by insurer/appellant.  It is the email originated from Arvin Bakshi of OP No. 3 and addressed to Ashish Bhatnagar of Oriental Insurance Company (appellant).Relevant extract of this email is reproduced below:-

“The Patient was hospitalized at G.B. Pant Hospital, New Delhi from 05.12.2014 to 06.12.2014.  He was diagnosed as a case of DM/HTN/CAD/USA/DOUBLE VESSELS DISEASE.  He underwent PTCA with Stenting. The claim papers (Pre-hospitalization consultation paper dated 09.10.2014 of Dr. V.K. Sharma, MD Panchkula) reveal that he had a history of diabetes for the last 20 years.  Diabetes, being pre-existing ailment, is excluded under clause 4.1.  The policy clause further provides that this exclusion will also apply to any complications arising from pre-existing ailments/diseases/injuries.

12. On the basis of above, the insurer/appellant has pressed clause 4.1 and it is mentioned in the email Annexure R-5 that: claim is therefore not admissible.
13. Only in first policy Annexure C-1 of the year 19.09.2011 to 18.09.2012 columns of pre-existing ailments have been left blank. In subsequent three policies, including policy of the period 19.09.2014 to 18.09.2015, in columns meant for pre-existing ailments concerning for all beneficiaries including Sh. R.P. Garg, word ‘NO’ has been mentioned. It is specific stand of the insurer that: in the proposal form, complainant No. 2 has not mentioned that he is suffering from diabetes from last 15 years. Neither proposal form,nor medical report of Dr. V.K. Sharma, M.D. Panchkula,has got light of day. Burden of proof in this regard lay upon insurer alone as it is the specific fact so alleged, in written version by pleading concealment of material fact (pre-existing ailment of diabetes) by insured R.P. Garg. Proposal form and so also medical report of Dr. V.K. Sharma M.D. Panchkula must be lying with insurer/appellant alone. Having failed to bring on record these documents; insurer cannot garner any advantage from its alleged plea.
14. Only in the communication Annexure R-5 there is a recital that claim papers dated 09.10.2014 of Dr. V.K. Sharma, MD revealed that patient had pre-existing disease for last 15 years. Mere assertion of this type will not betaken as gospel truth, on its face value. No specific affidavit Dr. V.K. Sharma, MD, Panchkula has been placed on record.  On what basis and reasons; Dr. V.K. SharmaMD, Panchkula came at conclusion(embodied in email. Annexure R-5) that R.P. Garg had a history of diabetes of last 20 years, was the material fact, required to be unfolded and unveiled onlyby insurer/appellant. Curiously enough, absolutely nothing has been brought on record by insurer/appellant in that arenathat R.P. Garg had obtained any medical treatment concerning diabetes from any hospital, prior to his having taken treatment regarding his heart problem from G.B. Pant Hospital, New Delhi. Hence, it is concluded that recital in communication Annexure R-5 to the effect that R.P. Garg hadany pre history of diabetes,for whopping period of last 15 years, remained a mysterious and mystifying circumstance. The insurer/appellant could not unveil the mysterybehind this particular aspect through any tangible evidence. As a legal corollary so flowing, it cannot be taken on mere supposition that diabetes had caused heart ailment to R.P. Garg.  This is particularly, when R.P. Garg had not landed in G.B. PantHospital for any treatment concerning diabetes. He obtained treatment for heart problem.May be, diabetes could be one of the reason for development of heart problem, but it cannot be taken to be sole reason. The foundation of repudiation of insured’s claim by insurer/appellant by invoking clause 4.1 is thus legally not justified. The claim is payable in strict legal sense.
15. 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. Reliance in this regard can be placed on judgment of Hon’ble Supreme Court in case 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 also on  decision of Hon’ble Apex Court in case titled as National Insurance Company Limited vs. Ishar Das Madan Lal(2007) 4SCC 105.
16. While applying the legal dictum of afore cited judgments to the facts of this appeal, “it is held that insurer having miserably failed to bring on record any cogent evidence, to prove its pleaded fact that insured/beneficiary (Sh. R.P. Garg since now dead) had pre-existing aliment of diabetes for last 15 years; It cannot legally stimulate any justification to repudiate the claim of Rs. 1,40,956/-.  Consequently, the reliance placed by learned counsel for the appellant/insurer on Chandumull Jain’s case (Supra) will not sub-serve its any cause.
17. As a sequal thereto; on critical analysis of all relevant facets of this case; the only inescapable conclusion is that impugned order dated 15.02.2018 passed by learned District Consumer Disputes Redressal Commission, Yamuna Nagar at Jagadhri does not suffer from any illegality.  It is outcome of proper appreciation of facts and evidence brought on record.  Impugned order dated 15.02.2018 is maintained and affirmed.  Present appeal being devoid of merits is hereby dismissed.

18.    Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it,after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.

19.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

20.    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.

21.    File be consigned to record room.

Date of pronouncement: 14^thJune, 2023

                                                                                    Naresh Katyal    

                                                                                    Judicial Member

Addl. Bench-II