1. This order will dispose of appeal against order dated 20.09.2019 passed by District Forum (Central Distt.) in CC No.13/2019 vide which the complaint was allowed and appellant was directed to pay Rs.1,22,314/- alongwith interest @9% per annum from the date of repudiation of claim i.e. 17.03.2018 till realisation, to issue fresh health insurance policy to the complainant for the year 2019-2020 alongwith all continuity benefits against the premium within 30 days from the date of order, to pay Rs.30,000/- as compensation and Rs.20,000/- as litigation expenses.
2. The facts giving rise to the filing of the complaint were that complainant/respondent herein took medical insurance policy for Rs.5 lacs from the appellant. Earlier he had insurance with another insurance company and the policy was ported with the appellant. On 05.02.2018 he was critically unwell and was admitted in Sir Ganga Ram Hospital where he was diagnosed with Left Ischiorectal Abscess and was treated by Dr. Brij B. Aggarwal. Initially OP gave approval of Rs.36,000/- for treatment. Believing the said approval, complainant underwent surgery on 06.02.2018. Representative of the appellant visited the hospital on the same day, post surgery for verification of the same. On 07.02.2018 the complainant was informed that his claim had been repudiated and the policy had been cancelled. He was discharged from the hospital on 07.02.2018. Hospital raised bill to the tune of Rs.1,22,314/- which was paid by him.
3. OP repudiated the claim on false and frivolous ground that treatment was of tuberculosis and complainant has concealed material facts about his health at the time of issuance of policy. The treating doctor namely Dr. Brij B. Aggarwal confirmed that present ailment and treatment was entirely different from the treatment of tuberculosis. The OP was not ready to accept the version of the complainant or doctor. He filed a complaint for directing OP to reinstate the insurance policy, to refund Rs.1,22,314/- incurred by him on his treatment, Rs.2 lacs as compensation for causing mental agony, harassment and Rs.50,000/- as litigation charges.
4. In WS the appellant stated that on investigation and verification of documents submitted by respondent, it was found that complainant had a medical record of tuberculosis in May, 2014 and Thyroid since 1999 which was not disclosed at the time of inception of policy. Hence, the claim was rightly repudiated on the ground of non disclosure.
5. Both the parties filed evidence by affidavit. After going through the record and hearing the arguments, District Forum found that firstly as per the version of treating doctor, the present treatment had no connection with the tuberculosis and thyroid. Moreover, claim against tuberculosis was given by United India Insurance Company/previous insurance company to the complainant and this fact was well within the knowledge of OP as the same was mentioned in the documents ported by the OP. The District Forum relying upon the decision of Hon’ble Supreme Court in LIC Vs. Smt. G.M. Channabasemma, AIR 1991 SCC 392 held that insurance company cannot take advantage of the act of ‘omission and commission’ as it is under obligation to ensure before issuing medical claim policy whether the person is fit or not. In the present case the appellant did not discharge the said obligation. Thus, attempts on the part of appellant to repudiate the claim for non disclosure is not permissible and ‘exclusion is not invokable’.
6. The District Forum further reached the conclusion that there is nothing on record to prove the appellant got the medical treatment or that present ailment is result of tuberculosis or thyroid. Hence it allowed the complaint.
7. In appeal, the grievance of the appellant is that District Forum had ignored that suppression of material fact/non disclosure of material fact on the part of insured is valid ground for repudiation of the claim and cancellation of the policy. The insured gave declaration in proposal form that statements, answers or particulars given by him were true and complete in all respects to the best of his knowledge. Clause 14 of the policy provided that policy would be void in the event of misrepresentation, mis-description or non disclosure of any material fact. Further according to the appellant it is prerogative of insurer to decide what is material and what is not. Insured cannot take decision whether the particular effect was material or not.
8. Before coming to the merits of the appeal it may be mentioned that appeal has been filed on 23.11.2019 and is barred by limitation. The appellant has moved an application for condonation of the same. According to appellant, there is delay of 34 days in filing appeal and ground taken in the application is that it has to follow internal procedure to take the decision to file appeal. The same takes time and that is the reason for delay. It is the settled law that the law of limitation is to be interpreted liberally. Free copy of the impugned order was prepared by the District Forum on 26.09.2019, advocate of the appellant received the same and supplied to the office of the appellant on or about 08.10.2019, it took one week time to trace the documents, it sought opinion about the merits of the matter. The dealing advocate gave opinion on or about 25.10.2019 to prefer an appeal. It took some time to get internal approval to prefer appeal from the higher official which was obtained on or about 30.10.2019. The file was sent to the counsel on or about 01.11.219 who sought some more documents and clarification on or about 08.11.2019. The documents and clarifications were sought on or about 13.11.2019. The advocate of the appellant took some time to search on the legal issues and drafted appeal. Some time was taken in getting statutory FDR prepared.
9. The application is quite vague. It has used word ‘on or about’ in almost all pleas. It is not certain as to when alleged thing happened. Still in the interest of justice and in view of the consent given by counsel for respondent, I allow the application and condone the delay.
10. On merits, counsel for appellant sought to draw a very thin and fine line that he is pressing on making a false statement before issue of policy and not concealment of pre-existing disease. Alleged false statement is about pre-existing disease. I am unable to appreciate the submissions. In substance both pleas are same.
11. Counsel for appellant relied upon the decision in Civil Appeal No.3359/19 titled as Oriental Insurance Co. Ltd Vs. Mahendra Construction decided by Hon’ble Supreme Court on 01.04.2019 in which it was held that mere disclosure of previous insurance policy does not discharge the obligation of insured to make full, correct/true and complete disclosure of claims in the preceding years.
12. The counsel for respondent submitted that when present appellant got the paper of previous policy from the previous insurance company, it must have received the papers of claim alleged by respondent with the previous insurance company regarding reimbursement of treatment charges for tuberculosis. The appellant must have come to know about the said disease.
13. Counsel for respondent further submitted that the proposal form was filled up by agent of the appellant and is not in the handwriting of the respondent. The respondent simply put his signatures. It was after putting up signatures by respondent that the agent of the appellant filled up the answers by mentioning ‘no’ against every column. Respondent is not bound by such answers.
14. The argument of respondent appears to be weighty. Counsel for appellant relied upon the decision in Life Insurance Corporation of India and Ors. Vs. Maya Devi II (2016) CPJ 1396 NC, where it was held that any information sought in proposal form is material and non-disclosure is valid ground for repudiation. No nexus is required between the suppressed disease and present claim.
15. The proposition laid down in the aforesaid case is undisputable but same has to be applied in each case on the facts of that case. The proposition is not absolute.
16. Counsel for appellant relied upon the decision of National Commission in RP-1061/2011 titled as LIC of India & Ors. Vs. Ramamani Patra & Anr. decided on 03.08.2015 which is to the same effect as in LIC Vs Maya Devi (supra).
17. Reliance has also been placed by appellant on decision of National Commission in RP-1085/2016 titled as Krushna Sureshkumar Taruna Vs. Life Insurance Corporation of India & Anr. decided on 26.06.2016 in which that suppression of material fact with regard to the health amounts to fraud and insurer can repudiate the claim. The same is on the peculiar facts of that case.
18. The appellant has also referred to decision of National Commission in RP-494/2018 titled as Nori Venkata Ramana Vs. Reliance General Insurance Co. Ltd. decided on 15.02.2018. In that case it was held that suppression of Hypertension, Diabetes and Hypothyroidism is sufficient to repudiate the claim.
19. Counsel for appellant also referred to decision of Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009)8SCC316 which is to the same effect as in LIC Vs. Maya Devi (supra).
20. The appellant has not been able to satisfy as to why it did not get respondent medically examined before issuing the policy. So failure of the appellant to do so must result in adverse inference being drawn against it as per decision of Hon’ble Supreme Court in LIC Vs. Smt. G.M. Channabasemma, AIR 1991 SC 392 referred to by District Forum in its order.
21. Moreover, I feel that it may be that insured cannot take a decision as to whether the particular disease has nexus with the treatment in question or not. But concerned doctor is the best person to give opinion about the same. In the present case, treating doctor Brij B. Aggarwal has given in writing that present treatment is entirely different from treatment of tuberculosis. The same must be preferred over the plea of the appellant.
22. Still further if the appellant was of the opinion that respondent has suppressed something, it is not clear as to why it gave the approval of Rs.3
Please Login To View The Full Judgment!
6,000/- before surgery. The same is overwhelming factor in favour of respondent and against the appellant. The subsequent conduct of the appellant in repudiating the claim seems to be after thought and mala fide. 23. Anyhow, I do not find any justification for directing appellant to issue fresh health insurance policy for the year 2019-2020 alongwith all continuity benefits. There is no dearth of insurance company. Respondent may take insurance policy from any other insurance company. So impugned order to that extent deserves to be set aside. In fact counsel for respondent fairly conceded that said part of the order may set aside. 24. In view of the above discussion, appeal is partly allowed. Directions to the appellant to pay Rs.1,22,314/- with interest @9% per annum from the date of repudiation of claim i.e. 17.03.2018 till realisation and Rs.30,000/- as compensation, Rs.20,000/- as litigation charges are maintained. Direction to issue fresh policy is set aside. 25. Copy of the order be sent to both the parties free of cost. 26. One copy of the order be sent to District Forum for information.