Anup K. Thakur
1. This Revision Petition No.1002 of 2018 challenges the impugned order of the Maharashtra State Consumer Disputes Redressal Commission, Nagpur (‘State Commission’, hereafter) dated 13.09.2017 in F.A. No. A/15/204. Vide this order, the State Commission had dismissed the appeal against the order of the District Consumer Disputes Redressal Forum, Gondia (‘District Forum’, hereafter) dated 22.10.2014 in C.C. No.06/2013.
2. Brief facts are that the respondent/complainant-Narendra Pundlik Ramteke (‘complainant’, hereafter) had purchased policy bearing no.002684889, for the period 13.05.2009 to 13.05.2012 by paying premium of Rs.13,198/-. The complainant became ill on 22.11.2009 and was admitted in the hospital of Dr. Bahekar of Gondia. Thereafter, he was shifted to Central India Institute of Medical Sciences (CIIMS) on 22.11.2009 where he remained under treatment from 22.11.2009 to 16.02.2010, then from 17.02.2010 to 13.03.2010 and lastly from 04.06.2010 to 06.06.2010. In this period, he underwent operation and incurred a total expenditure of Rs.8 to 9 lakh. When he submitted his claim for reimbursement to the petitioner/OP-Birla Sun Life Insurance Co. Ltd. (OP hereafter), the same was repudiated vide letter dated 7.6.2011 on the ground that he had withheld vital medical information at the time of making his insurance proposal. Disputing this, the complainant filed a consumer complaint before the District Forum. This was contested by the OP by filing a written statement. The main ground taken was that the complainant had not approached the consumer forum with clean hands. The complainant was alleged to have suppressed material facts, thus misrepresenting his case while filling up the proposal form for obtaining insurance. It was submitted that the application form pertaining to medical history and personal details of the principal insured had answered the following question in the negative:
(i) “within the past five years have you consulted doctor or other health practitioner except for common cold, influenza lasting less than four days;
(ii) “have you ever had or sought advice any of the following: anemia, leading or blood disorders?”
It is alleged that the complainant had filled up this form after fully understand the terms and conditions of the policy. During the course of investigation by the OP it was established that the complainant was suffering from Sickle Cell Disease (SCD), a fact which was withheld from the OP. It was argued in the written reply that this material non-disclosure would have influenced the decision of the OP qua acceptance or rejection of the contract of insurance. As such, there was no deficiency of service in the OP rejecting the claim lawfully.
3. The District Forum held that from the documentary evidence on record, it was proved that the complainant was healthy before the operation for which insurance claim had been filed. The District Forum noted that the bills from the medical store and CIIMS Hospital, Nagpur was Rs.8,38,720/-. It further noted that OP, while rejecting the claim, had not been able to prove their reason for rejection with independent and reliable evidence. Therefore, the District Forum allowed the complaint, directing the OP to give Rs.8 Lakh with 9% interest from 16.1.2013 till realization, along with Rs.10,000/- as compensation for mental suffering and Rs.5,000/- as costs. This order was challenged by the OP before the State Commission in F.A. No. A/15/204 which failed. Hence, this revision petition.
4. Heard arguments of the learned counsels for the parties on 14.10.2019.
5. Learned counsel for the petitioner, after submitting the facts briefly, argued that the crux of this case was whether the complainant’s non-disclosure of the pre-existing disease of SCD while making the proposal for insurance, amounted to a material non-disclosure which vitiated the contract of insurance. He argued that when the claim was filed on 21.05.2010, the OP had got the medical records investigated and had then learnt that the complainant was in fact a patient of SCD, a fact that had been withheld from the OP. Counsel drew attention to the discharge summary of CIIMS, for the period 22.11.2009 to 16.2.2010 wherein the brief history of the complainant had clearly recorded that the 30 year old complainant was a known case of SCD, on regular treatment. He then referred to discharge summary for the period 17.2.2010 to 13.3.2010, which had again recorded that the complainant was a known case of viral encephalitis sequelae, SCD. He then drew attention to a certificate dated 21.9.2010 issued by Dr. Nitin Chandak, Senior Consultant Neurology, CIIMS wherein it has been clearly recorded that the complainant was treated in the hospital on 3 occasions and diagnosed as a case of viral encephalitis sequelae SCD. Further, his case was reviewed in neurology OPD on 18.9.2010. This certificate then recorded that as per old record dated 21.04.2008, he had SCD and that his present illness did not have any relation to SCD. Counsel argued that all these documents were pertaining to the year 2008 whereas policy was taken in May 2009. As such, all this was known to the complainant and was intentionally withheld from the OP. It is for this reason that the claim was repudiated. He also pointed out that the District Forum had erred in awarding Rs.8 Lakh whereas the limit on annual basis was only Rs.4 Lakh and for three years, it was 8 Lakh. He summarized his submissions by saying that that this was a case of deliberate suppression of material medical facts and therefore no claim was admissible. Also, it was the case that the amount awarded was in excess of the amount indicated in the policy itself.
6. Learned counsel for the complainant submitted that in the first instance, this revision petition was not tenable as per law as it had been filed against concurrent findings of the lower fora. He further argued that SCD was not a disease and the complainant did not know about this SCD being a disease at the time of submitting the insurance proposal. Referring to the certificate dated 21.9.2010 of Dr.Nitin Chandak (supra), he emphasized that the last line of the certificate clearly states the complainant’s present illness did not have any relation to sickle cell disease. The counsel then drew attention to certain documents showing that he was employed as a correspondent and arguing that he could not have been an active journalist, had he been afflicted with SCD in the way being alleged by the OP. He also drew pointed attention to the fact that the certificate of Dr. Chandak dated 21.9.2010 had been obtained 7 months after filing of the consumer complaint. He then drew attention to para 10 of the impugned order wherein the State Commission had noted that Dr. N. Chandak had no knowledge of alleged SCD of the complainant and that his opinion was based only on the old record dated 21.4.2008 and that a copy of this record was neither produced before the District Forum nor before the State Commission. He then invoked a citation, being the order of the National Commission in R.P. No.3751 of 2006 decided on 19.12.2006, wherein it had been held that suppression of conditions such as cold/fever did not amount to a suppression of material fact, the point being that SCD was in the nature of a very common affliction which the complainant may not have considered as a disease to be disclosed. There was therefore nothing fraudulent in this.
7. Learned counsel for the OP made a short rebuttal. He submitted that this was a medi-claim policy subject to limits, something that had been ignored by the district Forum in awarding Rs.8 Lakh. Further, he referred to the application form for insurance, question 3 (g) under C-MEDICAL INFORMATION which had pointedly asked whether the complainant ever had or sought advice for anemia, bleeding or blood disorders, pointing out that this had been answered in the negative whereas SCD was a blood disorder. Learned counsel for the complainant also rebutted to submit that as for the annual and term reimbursement limits of the policy were concerned, this was being argued for the first time and could not be so raised at the stage of revision petition.
8. After hearing arguments and carefully perusing the record, I am inclined to agree with the impugned order of the State Commission.
9. Everything revolves around whether the complainant had intentionally suppressed material information related to his health while submitting the proposal form for insurance.
10. At this stage, it is apt to reproduce paras 10 to 13 of the State Commission’s order:
“10. Thus, it is found that Dr. N Chandak has no knowledge of alleged Sickle Cell disease of the respondent as he has not treated the respondent for said disease. He gave his opinion about Sickle Cell, only on the basis of alleged old record dtd. 21.04.2008 of CIIMS Hospital. However, copy of the said old record dtd. 21.04.2008 was neither produced before the Forum below nor before us in appeal. Moreover, no explanation is given by the appellant as to why copies of actual record dtd. 21.04.2008 of the CIIMS Hospital was not produced in support of the said certificate to prove that in that hospital the respondent was diagnosed (with) Sickle Cell disease on 21.04.2008 and he also took treatment for that disease in that hospital. Moreover, Dr. N. Chandak has not stated in the certificate dtd. 21.09.2010 that he personally verified the old record dtd. 21.04.2008 of that hospital before issuing that certificate or whether any of the employee of that hospital gave him that information orally about the old record of that hospital.
11. In our view, in the absence of copies of old record of the hospital, it cannot be proved that the respondent was diagnosed (with) Sickle Cell disease as on 21.04.2008 and he was aware of the said disease on or about 21.04.2008. It is also not the case of the respondent that he was aware of the said disease when he submitted proposal Form for policy to the appellants. Therefore, it cannot be said that the respondent fraudulently suppressed the disease of sickle cell while submitting proposal form for the policy. It cannot be also said that he gave wrong answers in the proposal Form about his health condition while submitting proposal Form.
12. Moreover, there is no document on record subsequent to the date of policy that the respondent has been diagnosed (with) Sickle cell disease and he took treatment for the same. Thus, we hold that as it is not proved that the respondent was suffering from Sickle Cell disease and he fraudulently and knowingly suppressed his said disease while obtaining policy from the appellant, repudiation of his claim for sum assured of Rs.8.00 Lacs, constitutes deficiency in service on the part of the appellant. Moreover, the respondent produced documents on record showing that he incurred expenses of more than Rs.8.00 Lacs in hospital for his treatment of disease namely Viral Encephalitis with Sequelae SCD.
13. We also hold that the aforesaid decisions, replied on by the learned advocate of the appellant, are of no assistance to the appellant since it is not proved that respondent fraudulently suppressed alleged pre-existing disease. Hence, the appeal deserves to be dismissed.
11. It is clear from the order of the State Commission above that the State Commission has cogently argued why a case of fraudulent suppression of information about the SCD, the reason for repudiation for his insurance claim, could not survive.
12. It has also been clearly pointed out by the learned counsel for the complainant that the revisionary jurisdiction is limited in the case of concurrent orders of the lower fora. Law on revisional powers has been clearly laid down
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by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654, as under: “Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b)of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.” 13. In view of the discussion above, this revision petition is dismissed. No order as to cost.