w w w . L a w y e r S e r v i c e s . i n



Max New York Insurance Co. Ltd Gurgaon through its Managing Director & Another v/s Rajinder Kaur


Company & Directors' Information:- MAX INDIA LIMITED [Active] CIN = L85100PB2015PLC039155

Company & Directors' Information:- MAX INDIA LIMITED [Active] CIN = U85100PB2015PLC039155

Company & Directors' Information:- MAX CORPORATION LIMITED [Amalgamated] CIN = U24231PB1996PLC018766

Company & Directors' Information:- MAX INDIA LTD [Amalgamated] CIN = U24232PB1982PLC004841

Company & Directors' Information:- YORK INDIA LTD. [Not available for efiling] CIN = U99999DL1901PLC003613

Company & Directors' Information:- P G MAX PRIVATE LIMITED [Strike Off] CIN = U22219KL2012PTC031856

Company & Directors' Information:- MAX I. LIMITED [Active] CIN = U74999PB2016PLC045450

    First Appeal No. 431 of 2008

    Decided On, 12 February 2013

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, THE HONOURABLE MR. PIARE LAL GARG
    By, PRESIDING MEMBER & THE HONOURABLE MR. JASBIR SINGH GILL
    By, MEMBER

    For the Appellants: Karan Nehra, Advocate. For the Respondents: Gurpreet Singh, Tejinder Joshi, Advocates.



Judgment Text

Piare Lal Garg, Presiding Member

1. This is an appeal filed by the appellants-Max New York Ins. Co. Ltd. (hereinafter called ‘the appellants’) against the order dated 18.1.2008 of the District Consumer Disputes Redressal Forum, Sangrur(hereinafter called the ‘District Forum’) vide which the complaint of the respondent/complainant (hereinafter called ‘the respondent’) was accepted by the District Forum.

2. Brief facts of the case are that husband of the respondent, namely, Sh. Harpal Singh(hereinafter called ‘the LA’) was insured under policy No. 250984481 dated 16.6.2005 with the appellants for an amount of Rs. 3,75,000/- in case of natural death and in addition Rs. 2 lacs in case of accidental death i.e. Rs. 5,75,000/-. On 17.5.2006 at 5.00 p.m. when her husband was coming to the house on scooter fell on the road near Park, Nabha Gate to save a dog which suddenly came in front of his scooter and he sustained multiple grievous injuries. He was taken by Shivcharan to Dr. Parmod’s Orthopedic and Trauma Centre for treatment, where he remained admitted for 4/5 days and thereafter he was taken to Medicity Hospital, Ludhiana but he died on 12.7.2006 due to the injuries suffered by him in accident. The claim was lodged by the respondent as nominee of the LA but the claim was repudiated vide letter dated 2.3.2007. Complaint was filed with the prayer that the appellant may be directed to pay Rs. 5,75,000/- i.e. Rs. 3,75,000/- for natural death plus Rs. 2,00,000/- due to death in accident as per policy alongwith all benefits with interest @ 18% per annum from the date of death till its payment. It was also prayed that Rs. 50,000/- as compensation on account of mental pain, agony and harassment as well as Rs. 11,000/- as litigation expenses may also be awarded to the respondent.

3. Upon notice, reply was filed by the appellants by taking preliminary objections that there was no negligence on the part of the appellants, the LA had not disclosed the real facts at the time of filling the proposal form and suppressed the material information regarding his health, the claim was repudiated as per the terms and conditions of the policy, the LA had given wrong answers regarding his health at the time of filling the proposal form. On merits, it was admitted that the LA was insured but he had concealed facts regarding his ailment and the LA was known case of Marfan’s Syndrome which led to Thoracic Aortic Dissecting Aneurysm and underwent surgery for the same on 27.6.2006 and expired on 1.7.2006 due to complications of the surgery. The claim was repudiated on the grounds that the LA had concealed the real facts regarding his health at the time of filling the proposal form and gave wrong answers put to him regarding his health. It was prayed that the complaint may be dismissed with costs.

4. The rejoinder was filed by the respondent vide which the pleas taken by the appellants were denied as wrong and reiterated the version given in the complaint.

5. The complaint of the respondent was accepted by the District Forum and the appellants were directed to pay Rs. 5,75,000/- (Rs. 3,75,000/- for death policy amount + Rs. 2,00,000/- for accident benefit cover amount) along with interest @ 9% per annum from the date of repudiation i.e. 2.3.2007 alongwith Rs. 3,000/- as compensation as well as Rs. 1,000/- as litigation expenses within 60 days from the date of receipt of copy of the order.

6. The present appeal is filed by the appellants on the grounds that the District Forum failed to appreciate the evidence produced by the appellants, the LA concealed the real facts regarding his ailment, failed to appreciate that there was no deficiency in service on the part of the appellants, the impugned order is bad in law for granting interest on the claim amount and the same is based on conjectures and surmises and the same is liable to be set-aside.

7. There is no dispute between the parties that the LA was insured for an amount of Rs. 5,75,000/- vide policy No. 250984481 dated 16.6.2005 for an amount of Rs. 3,75,000/- for natural death and Rs. 2,00,000/- for accidental death. It is also admitted case of the parties that the LA met with an accident on 17.5.2006 at Sangrur and he was taken to Dr. Parmod, Orthopedic and Trauma Centre, Sangrur by Sh. Shiv Charan where the LA remained admitted for treatment for 4-5 days and when he was not cured there then he was shifted to Medicity Hospital, Ludhiana for further treatment. He was operated on 25.6.2006 in the Medicity Hospital, Ludhiana and ultimately died on 12.7.2006.

8. The version of the respondent was that the LA died due to accident. But on the other hand the version of the appellants is that the LA died due to the ailment from which he was suffering before taking the policy and he was also operated by Dr. H.S. Bedi of Medicity Hospital, Ludhiana on 28.10.1996 for Bentall Operation for Ascending Aortic Aneurysm with Arotic Regurgitation.

9. Now the dispute between the parties is only:-

(i) whether the LA had given wrong answers regarding his health at the time of filling the proposal form?

(ii) whether the LA was suffering from any ailment before taking the policy?

(iii) whether the LA died due to accidental injuries or due to heart attack?

10. The appellants repudiated the claim vide letter (Ex. OPW-1/10) dated 2.3.2007. The relevant paras of the same are reproduced:-

'This is with reference to the above death claim. The proposal form was received by us at our Sangrur Office on July 14, 2005. Based on the representation / disclosures made by late Mr. Harpal Singh in the proposal form we had issued the policy on August 01, 2005. We refer to page 4 of the proposal form (copy enclosed) wherein late Mr. Harpal Singh had given a declaration that he had made complete, true and accurate disclosure of all the facts and circumstances as may be relevant for the acceptability of the proposal form. However, we would like to draw your attention to Part D page 4 – Medical Question no. 3 xvii) which was answered as 'No'. Ques. No. 3 – Are you now or have you ever been diagnosed with any of the following conditions:

i) Chest pain, palpitation, rheumatic fever, heart murmur, heart attack, shortness of breath or other heart disorder or stroke.

xvii) Any other ailment or impairments

We have, during the course of claim evaluation, have procured Certificate dated February 13, 2007, issued by Dr. Harvinder Singh as per which Late Mr. Harpal Singh was a known case of:

• Marfan’s syndrome

• He had undergone Bentall operation for ascending aortic aneurysm with aortic regurgitation on 28/Oct/1996.

It is evident medical non disclosure as required in the proposal form was not made by Late Mr. Harpal Singh. At the state of underwriting, had we known the above details, the above policy would not have been issued as proposed.

In light of the above, we regret we decline the death claim against the above-mentioned policy for reasons of material medical non-disclosure as stated above.'

11. So as per the proposal form, the claim of the respondent was repudiated only on the ground that LA had not disclosed his ailment at the time of filling the proposal form and if the same was disclosed at the time of filling the proposal form, the LA should not have been insured under the above policy by the appellants.

12. The appellants come to the conclusion that the LA was suffering from disease of Marfans Syndrme before the filling of the proposal form and he was operated by Dr. H.S. Bedi on 28.10.1996 for the same as per letter Ex. OPW-1/9 dated 13.2.2007, which was written by him in response of letter written by Dr. Neha Yadav, Executive Claims Ex. OPW-1/8 to Dr. H.S. Bedi on 12.2.2007 of the appellants.

13. We have perused the above letters. In her letter by Dr. Neha Yadav dated 12.2.2007 only requested to Dr. H.S. Bedi to update the appellants about Mr. Harpal Singh LA:-

(i) was he suffering from Marfans Syndrme?

(ii) If yes, was he aware of the disease and since when?

(iii) was he undergoing or had undergone any treatment/surgery for the same?

It was also requested to forward the hospital record viz. copies of history sheet, admission sheet, investigation records and discharge summary pertaining to the treatment rendered to late Mr. Harpal Singh at the hospital in order to enable the appellants to evaluate the claim.

14. In reply to the said letter, the following information letter was supplied by Dr. H.S. Bedi to the appellants. The relevant para of the same is reproduced:-

'Sub: Your reference letter dated Feb 12, 2007 for Death Claim of Late Mr. Harpal Singh

Dear Doctor,

The details required by you regarding death claim of Late Mr. Harpal Singh are as under:----

1. He was a known case of Annulo-Aortic Ectasia – also known as Marfan’s syndrome.

2. He had a prior surgery by me on 28/10/1996 when a Bentall operation was done for ascending aortic aneurysm with aortic regurgitation. He was doing well till he had an accident and developed a thoracic aortic dissecting aneurysm for which we had operated in June 2006.

3. As in 2.

Yours truly,

Sd/-

(Dr. H.S. Bedi) MCh. (Gold Medalist) FIACS

Director & Chairman Cardiac Sciences

Ludhiana MediCity'

15. From the perusal of the above letters, no name of the father as well as address of the LA was mentioned by Dr. Neha Yadav to inquire regarding the ailment, if any, which LA was suffering and in reply to the same, Dr. H.S. Bedi also not mentioned the father’s name of the LA not even address of the patient, namely, Harpal Singh who was operated by him on 28.10.1996. There is no identity of the LA mentioned in both the letters to ascertain that the patient, who was operated by Dr. H.S. Bedi was late Harpal Singh, who was insured by the appellant. No hospital record, copies of history sheet, admission sheet, investigation record and discharge summary pertaining to the treatment rendered to LA by Dr. H.S. Bedi of Medicity Ludhiana produced by the appellants to prove that the LA was suffering from Marfans Syndrome and he was operated on 28.10.1996 by Dr. H.S. Bedi. Neither Dr. H.S. Bedi was examined before the District Forum nor his affidavit was tendered into evidence by the appellants to prove its version. Even no record of Medicity Hospital, Ludhiana was summoned by the appellants, which was material to repudiate the claim of the respondent that the LA was suffering from any ailment at the time of filling the proposal form and he had given wrong answers regarding his health to the agent/official, who filled the proposal form.

16. We have also perused hospital treatment certificate Ex. OPW-1/7, which was issued by Ludhiana Medical Hospital. But in the same no detail is given regarding the previous ailment of LA as well as regarding his alleged operation by Dr. H.S. Bedi on 28.10.1996. In the same only in column No. 5 the cause of history of illness is reported 'chest pain and breathlessness' as well as against the nature and duration of illness at the time of admission is mentioned as ‘1-3 days’. No past history of the ailment was also mentioned against column No. 6 of the said treatment certificate by Doctor of Medicity Hospital, Ludhiana.

17. We have also perused the letter Ex. OPW-1/6 dated 3.1.2007, which was written by Dr. Neha Yadav, Executive Claims to the respondent for the supply of following documents:-

(i) patient admission sheet, treatment records from Ludhiana Medicity Hospital.

(ii) If there is any other medical care received by Mr. Harpal Singh in the last 5 years, kindly provide us details/documentation for the same.

18. It is not the ground for the repudiation of the claim that the record regarding treatment of LA from Medicity Hospital was not submitted and there is also no evidence produced by the appellants that LA had taken any medical claim in the last 5 years of his death.

19. We have also perused the proposal form, which was filed by one Anoop Kumar, Agent of the appellants. But neither he was examined nor his affidavit was tendered into evidence to prove whether any questions were put to LA by him regarding his health and he replied in negative. When he was the Agent of the appellants and his evidence was very material to prove that the wrong answers were given by the LA at the time of filling the proposal form but the same was withheld by the appellants for the reason best known to the appellants. Sh. Harjit Singh was described as witness in the proposal form but his affidavit was also not tendered into evidence to prove that any question regarding the health had been put to the LA and he replied in negative, who was present at the time of filling the proposal form as per the version of the appellants. Para No. 4 at page No. 5 of the proposal form relates to the declaration of Agent/Advisor that he explained the nature of the questions contained in the proposal form to the LA and also explained that the answers to the question form the basis of contract of insurance between the Company and the Proposer and if any untrue statement is contained therein and/or any information that may be relevant to enable the Company make an informed decision, the Company shall have the right to vary the benefits which may be payable and/or treat the policy as void and all premium paid under the policy may be forfeited by the Company but the said declaration, which is in printed form is not signed by the Agent/Advisor of the appellants.

20. In view of the above discussion, we are of the opinion that the appellants have badly failed to prove that late Harpal Singh LA was suffering from any ailment at the time of filling the proposal form.

21. We have also perused the death summary Ex. OPW-1/5 of LA Harpal Singh issued by Medicity Hospital, Ludhiana where he died at 1.45 a.m. on 12.7.2006, which is reproduced:-

'Death Summary

Patient Name: Harpal Singh

Age : 42 years

Sex : Male

Residence: Sangrur, Punjab

The patient came to the hospital on 26th May, 2006 with complaints of chest pain and breathlessness following a fall from his vehicle. He was diagnosed to have dissection of (illegible) cending thoracic aorta, surgery for the repair of dissection along with endovascular stenting was done on Fem-Fem by pass on 25th June, 2006 successfully. He was extubated next day and post operative recovery was uneventful in the late post operative period he developed stroke with CNS dysfunction which led to multi organ failure. Inspite of all resuscitative measure he could not be resuscitated and he expired at 1:45 AM on 12th July, 2006.'

22. So from the death summary, the LA was admitted in the hospital on 26.5.2006 due to chest pain and breathlessness due to fall from his vehicle and he succumbed due to injuries suffered by him in accident. The same is also corroborated by Dr. Rajesh Sharma, M.S. posted at CHC, Tapa vide his affidavit Ex. C-8 dated 10.9.2007. In his affidavit, he has solemany affirmed and declared on Oath:-

'That as per the prescription slip of Dr. Parmod Gupta of Dr. Parmod’s Orthopedic and Trauma Centre, Sangrur, the deceased met with an accident on 17.5.2006 and suffered injuries of the left shoulder and fracture of lateral end of clavicle and fracture of one rib. According to death summary of MediCity Hospital, Ludhiana, he was admitted in the said hospital with complaining of chest pain and breathlessness following a fall from his vehicle. He was diagnosed as having dissection of descending Thoracic Aorta. As per my opinion, it is possible that the deceased may have developed dissection of descending Thoracic Aorta due to Trauma (due to accident).'

23. The abovesaid Doctor is a Government Employee and he has no relation with the respondent and even no iota of evidence was produced by the appellants to controvert the opinion of Dr. Rajesh Sharma, who is perfectionist in his job.

24. It was held by the Hon’ble National Commission in its recent judgment in case 'Sahara India Life Insurance Co. Ltd. And Anr. Versus Smt. Hansaben Deepak Kumar Pandya', 2012(4) CPR 231 (NC) that the insurance company must prove the allegations of pre-existing disease by producing some concrete evidence in support of its case and held in paras No. 8 & 9 as follows:-

'8. The entire case of the petitioner hinges upon the above said history. This kind of evidence is exiguous. It carries no value in the eyes of law. The petitioner should have produced some concrete evidence in support of its case. The examination of a Doctor who checked the patient, prior to the obtaining of the policy in question, some treatment papers, some prescriptions etc., should have been produced. There is no evidence which may go to show that he had ever consulted the Doctor for taking treatment for the said disease. In the absence of solid and unflappable evidence, dallops of mystery surrounds petitioner’s case. The State Commission has referred to an authority of this Commission, reported in Pravin Damani v. Oriental Insurance Co. Ltd. which fully dovetails with the facts of this case and favours the complainant.

9. The revision petition is without any merit and, therefore, the same is dismissed.'

25. The above law was also followed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in its latest judgment 'The New India Assurance Company Limited versus Devanand UrfTejuman Ahuja and Ors.', 2013(1) CPR 20 (Chhatt.) and observed in para No. 8 as follows:-

'7. The minute observation of the Discharge Ticket (Annexure – 5) shows that in the column complaints 'Hypertension 4 years' has been mentioned, but so far as the history of Cardiac problem is concerned, it was only of 6 hrs duration, which shows that respondent No.1/complainant was having chest pain only from last six hours when he was admitted in the hospital and prior to that he was not having chest pain. Hypertension is such a condition from which many persons may be suffering even silently or unknowingly without any cause, even without any harm. Merely because one is having Hypertension, may be without his knowledge, it cannot be said that ultimately he/she will become heart patient. There is no material in the record to show that in any proposal form, it was concealed or me

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ntioned by the respondent No. 1/ complainant that he was suffering from Hypertension. In fact no proposal form has been filed by the Insurance Company. There is no material to show that respondent No. 1/ complainant was earlier knowing that he is patient of Hypertension. There is also no material to show that there was any earlier treatment in respect of any Hypertension disease or any cardiac problem. In absence of any treatment paper, no Court can hold that there was some earlier pre-existing disease, which was concealed by the respondent No. 1/complainant while making proposal for the insurance cover. Thus, the defence which has been taken by the appellant/Insurance Company was having no legs to stand and has rightly been discarded by the District Forum.' 26. So from the above discussion, it is also proved beyond any doubt that the cause of death of the LA was also due to accident, as such, the respondent is also entitled for the accidental claim and insurance claim i.e. Rs. 5,75,000/- for which the LA was insured with the appellants. 27. The order passed by the learned District Forum is legal and valid as the same is based on evidence produced by both the parties and there is no ground to interfere with the same. The appeal being without any merit is dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs. 28. The arguments in this appeal were heard on 5.2.2013 and the order was reserved. Now the order be communicated to the parties. 29. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 6,18,227/- in compliance with the order dated 14.5.2008. These amounts of Rs. 25,000/- and Rs. 6,18,227/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. 30. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
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