STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.08.2017
Date of final hearing: 01.05.2023
Date of pronouncement: 25.05.2023
First Appeal No.970 of 2017
In the matter of :-
The Oriental Insurance Company Limited, Divisional Office at Jawahar Market, Model Town, Opposite D Park, Delhi Road, Rohtak through its Divisional Manager, through authorized signatory, Regional Office, Oriental Insurance Company Limited, LIC Building, Ambala Cantt. .…..Appellant
Versus
- Rajinder Prashad Gupta s/o Sh. Moti Ram Gupta R/o H.No. 16/35, Vaish College Road, Near Manav Seva Sang, Naya Parav, Rohtak.
- M/s Medi Assist India TPA Pvt. Ltd. B-20, Sector-2, Near Sector-15, Metro Station, Opposite HCL Comnet, NOIDA (UP) 201301, through its Director. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. S.S. Sidhu, Advocate for the appellant.
Sh. N.K. Malhotra, Advocate for respondent No.1.
Services of respondent No.2 already dispensed with.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 17 days in filing of present appeal stand condoned for the reasons mentioned in the application for condonation of delay.
2. Oriental Insurance Company Ltd. has filed this appeal to assail the legality of order dated 22.05.2017 passed by District Consumer Disputes Redressal Forum, Rohtak (In short “District Commission”) in complaint case No.259 of 2014. Through this impugned order complainant’s complaint has been allowed.
3. Complainant got himself insured with OP No.1/appellant vide Policy No. 261200/48/2013/144. He was issued card viz. MA-ID No. 5008632034 valid from 05.01.2013 by appellant. It was Medi-claim insurance policy of complainant, which was renewed from 05.01.2014 to 04.01.2015 vide Policy No. 261200/48/2014/1803 and insurance was for Rs.5.00 lacs. On 15.01.2014, complainant suffered left side chest pain; taken to Maharaja Aggarsain Hospital, Punjabi Bagh, New Delhi and admitted there. He underwent Coronary Angiography which revealed triple vessel disease for which PTCA+ICS-OMI was done and he was discharged on 17.01.2014. He had allegedly spent Rs.2,82,572/- on his treatment and other expenses. He furnished required documents (mentioned in complaint) vide representation dated 06.02.2014 to OP No. 2, being TPA of OP No. 1. OPs verified claim and expenses incurred by him and also personally verified his health condition. To utter surprise; complainant’s genuine claim was repudiated vide letter dated 23.04.2014 on false and illegal grounds. He served legal notice on 19.05.2014 which was acknowledged by OP No. 1, but to no effect. Thus, by alleging act of OPs being illegal and amounts to deficiency in its service; complainant, through his complaint has sought direction against Ops to pay him insurance claim of Rs.2,82,572/- along with 24% interest as compensation on account of harassment and mental agony and litigation expenses.
4. Upon notice, OP No. 1 raised contest. In defence, it is pleaded that complainant did not fulfill requirements laid down in policy. Policy’s inception date is 05.01.2013 and treatment of Accelerated HTN with CAD was taken on 15.01.2014. As per exclusion No. 4.1; treatment for Accelerated HTN with CAD for the first time are excluded from scope of policy for a period of completed two years. Claim is not payable as per terms and conditions of policy and exclusion clause No. 4.2 of policy. In case of Accelerated HTN with CAD for two years, if contracted or manifested during currency of policy, if these diseases are pre-existing at the time of Proposal, first incepted for insurance. It is pleaded that it is observed from claim documents that claimant was admitted in Maharaja Aggarsain Hospital on 15.01.2014 for treatment of Accelerated HTN with CAD and discharged on 17.01.2014, however, this fact has been denied by OP. It is pleaded that disease relating to Hypertension was pre-existing before commencement of policy. Complainant did not provide correct information of his health to insurance company. It is denied that complainant spent Rs. 2,82,572/-. It is pleaded that complainant’s claim is rightly repudiated. Other pleas have been denied. It is pleaded that there is no deficiency in service of OP No.1.
5. OP No. 2 was proceeded against ex-parte vide order dated 09.12.2015.
6. Complainant and OP No. 1 have led their respective evidence, oral as well as documentary before learned District Commission.
7. On subjectively analyzing the same, learned District Commission, Rohtak vide order dated 22.05.2017 has allowed the complaint and directed OP No. 1 to pay Rs.2,82,572/- under policy No. 26100/48/2014/1803 with 9% interest from date of filing of complaint i.e. 23.07.2014 till actual realization along with litigation expenses of Rs.3500/- within period of one month from date of decision, failing which, awarded amount shall carry interest @12% from date of decision.
8. Feeling aggrieved, OP No. 1/insurer has filed this appeal.
9. Learned Counsel appearing for insurer/appellant has urged that insurer’s letter dated 23.04.2014 thereby repudiating the claim of complainant/insured is legally justified for the reason contained therein that expenses on treatment for Accelerated HTN with CAD for specified period of two years are not payable, if contracted or manifested during currency of policy. Disease relating to Hypertension was pre-existing before commencement of policy. It is urged that exclusion clause No. 4.2 of policy is attracted and in view thereof; claimant’s claim was beyond the preview of policy’s terms and conditions and rightly repudiated. It is urged that learned District Commission has not appreciated the controversy in proper legal perspective and thus impugned order dated 22.05.2017 is tainted with illegalities.
10. Per Contra, learned counsel for complainant has supported the impugned order dated 22.05.2017 by urging that it is the outcome of proper appreciation of facts and evidence by learned District Commission and same warrants no interference.
11. Admittedly, complainant obtained insurance policy No. 261200/48/2013/144 for the first time. He got renewed his Mediclaim policy vide policy No. 261200/48/2014/1803 which has currency of its validity from 05.01.2014 to 04.01.2015. Sum assured in terms of this renewed policy was Rs.5.00 lacs. Exclusion specified in the policy are contained in clause No. 4.1 & clause No. 4.2. Exclusion clause No. 4.1 reads in following terms:-
“Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/ injuries/health condition which are pre-existing (treated/untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 3 years of this policy being in force continuously.
For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered provided the renewals have been continuous and without any break in period, subject to portability condition.
This exclusion will also apply to any complications arising from pre existing ailments/ diseases/ injuries. Such complications shall be considered as a part of the pre existing health condition or disease.”
12. Exclusion clause No.4.2 depicts about nature and type of cases/ailments with a cap of exclusion period in terms of years. Disease related to Hypertension has a cap of two years. As per repudiation letter dated 23.04.2014 Annexure R-1; claimant’s claim has been repudiated under exclusion clause No. 4.2 of the policy, according to which there is cap of taking treatment for HTN with CAD for two years. It is mentioned in repudiation letter that disease relating to Hypertension was pre-existing before commencement of policy therefore, claim is not payable.
13. Now, in the light of above, it would be pertinent to observe as to what nature of treatment has been taken by complainant during policy period. Complainant was hospitalized in Maharaja Aggarsain Hospital on 15.01.2014. Discharge summary Ex.C-10 reflects that he was admitted with acute left side chest pain. He underwent coronary angiography which revealed Triple Vessel Disease for which PTCA + ICS-OMI was done successfully and he was discharged in stable condition on 17.01.2014. Discharge diagnosis was: CAD-ACS Hypertension. On what basis the insurer’s letter dated 23.04.2014 recites that Hypertension was pre-existing before the commencement of policy remained an unfolded mystery. Learned counsel for the insurer has been unable to refer any document from record which could reflect that disease relating to Hypertension was pre-existing before commencement of policy. Complainant’s medical record of Maharaja Aggarsain Hospital unambiguously reflects that he was admitted in the hospital for the first time on 15.01.2014. There is no document, worth the name, brought on record by the insurer/appellant showing that treatment of disease (Triple Vessel Disease CAD-ACS) was either pre-existing, or was the off-shoot of any allied pre-existing aliments. There is no document on record that complainant had taken any previous medical treatment prior to 15.01.2014, when he was hospitalized in Maharaja Aggarsain Hospital for the first time. This would legally imply that insurer’s stance, while repudiating insured’s claim on the ground that disease relating to Hypertension was pre-existed before commencement of policy, does not sound credence. Appellant’s/Insurer’s contention before this Commission that claimant has suppressed the material fact that he was suffering from Hypertension disease before obtaining first mediclaim policy in the year 2013, stood traumatized. While observing so, ratio of law laid down by Hon’ble Apex Court in case titled as “Life insurance Corporation of India and others versus Asha Goyal and another” 2001(1) CLT page 162 is attracted. There, Hon’ble Apex Court has laid down three conditions for applicability to repudiate the claim on the ground of suppression of material facts.
“(a) the treatment must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy holder; and
(c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.”
14. Lately, Hon’ble Apex Court in case titled as “National Insurance Company Ltd. versus Vedic Resorts and Hotels Pvt. Ltd.” Civil Appeal No. 4979 of 2019 decided on 17.05.2023 has held that: surevyor’s report is not the final one nor it is so sacrosanct as to be incapable of being departed from. Still further, in para 14 to 17 of this judgment Hon’ble Apex Court has held as under:-
“14. 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 the insured.
15. Beneficial reference of the decision in National Insurance Company Limited vs. Ishar Das Madan Lal1 be made in this regard, in which it has been held that:-
“8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured.”
16. The Constitution Bench in case of General Assurance Society Ltd. Vs. Chandumull Jain and Another2 had also observed as back as in 1966 that:-
“11.……there is no difference between a contract of insurance and 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 or doubt”.
17. In the instant case, the appellant-Insurance Company had failed to discharge its burden of bringing the case within the exclusionary clause V(d) of the policies in question. The surveyor in the Final Survey Report dated 16.06.2011 had also opined that the loss had occurred due to the insured peril and the claim was admissible. Though it is true that the Surveyor’s Report is not the last and final one nor is so sacrosanct as to the incapable of being departed from, however, there has to be some cogent and satisfactory reasons or grounds made out by the insurer for not accepting the Report. We are afraid in the instant case, the appellant-Insurance Company has failed to make out any such cogent reason for not accepting the surveyor’s Report.”
While applying the ratio of law in above cited judgment to the facts of case in hand it is established that insurer has miserably failed to prove that insured disease of Hypertension was pre-existing before inception of insurance policy.
15. In view of above, this Commission is of firm view that learned District Consumer Commission, Rohtak has rightly arrived at conclusion vide impugned order dated 22.05.2017 that appellant/insurer has failed to establish concealment of disease by complainant, prior to taking policy by insured. This Commission
endorses the same. Consequently, impugned order dated 22.05.2017 is affirmed and maintained. Present appeal being devoid of merits is hereby dismissed.
16. 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.
17. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
18. 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.
19. File be consigned to record room.
Date of pronouncement: 25th May, 2023
