New India Assurance Co Ltd vs GIRDHARI LAL TICKOO

-ORDER dated 10. 3. 2005 passed by the Divisional Forum, Jammu, (hereinafter to be referred to as the Forum) has been challenged in this appeal. In terms of the impugned order, the appellant has been directed to pay a sum of Rs. One lakh for the indemnification of the medi-claim covered under policy No. 4835070/08434 which was in currency with effect from 2. 2. 1999 to 1. 2. 2000. On 22. 3. 1999 the brother of the respondent lodged the claim with the appellant in respect of the expenses incurred by the respondent for undergoing angiography test at Escort Heart Institute and Research Centre, New Delhi, but the same was rejected on the basis of obtaining the above said policy by suppressing the factum of pre-existence of the said disease. The appellant had got investigated the said claim from the licensed investigator namely, Mr. S. B. Bakshi, who vide his report dated 11. 7. 2000 had informed the appellant that respondent had been admitted in Government Medical College Hospital, Jammu on 11. 1. 1999 vide MRD No. 199774 in Medical Unit 4 E of Cardiology Department and that was a proof that much earlier to the date of obtaining the insurance policy in question he was a patient of some heart ailment. The respondent denied the suppression of any disease to his knowledge and made frantic efforts to get his claim settled but it was repudiated. The respondent on 12. 5. 2000, filed the complaint before the Forum where full scale trial was held and on 10. 3. 2005 in terms of the impugned order, the claim was allowed to the extent of risk covered upto an amount of Rupees one lakh along with litigation charges of Rs. 5,000 even though it was pleaded that respondent had incurred expenses to the sum of Rs. 1,37,696. Interest at the rate of 6% was also made payable.

AGGRIEVED by this order, the appellant has filed appeal herein, inter alia, urging that respondent had misrepresented before the appellant while filling the proposal form wherein he had mentioned that he was not suffering from any ailment, whereas on 11. 1. 1999 he had been admitted in Government Medical College Hospital, Jammu vide MRD No. 1999774 in Medical Unit IV which is a Cardiology Ward. The concerned Medical Officer of the Hospital has admitted the admission of the respondent on 14. 1. 1999 in cardiology unit and this evidence had sufficiently established the suppression of the disease on the part of the respondent. Since the policy in question was obtained by playing fraud and with mala fide intentions, so he is not entitled to be reimbursed by the appellant insurer for the risk covered under the policy. Heard the arguments.

The learned Counsel appearing for the appellant in his arguments has vehemently pleaded the grounds of memo of appeal and further stated that the learned Forum has mis-appreciated the evidence. But from the appraisal of the record this argument does not get any support. It has been found in the evidence of Mr. B. N. Raina that the certificate placed on record by the investigator of the appellant Mr. S. B. Bakshi was not issued by a Competent authority as there is no such corresponding record available in the Hospital. He has even gone to the extent of stating that the stamp affixed on the certificate in question does not bear the signatures of the concerned record officer but it has been signed by some unauthorised person. The learned Forum has come to the view that the investigation report of Mr. S. B. Bakshi and certificate obtained by him do not prove the fact that respondent was suffering from any pre-existing disease of heart. The appellant insurer has not produced the expert evidence of any doctor by way of corroborative piece of evidence to prove the plea of pre-existing ailment of heart. The relevant finding of the Forum is reproduced hereunder: "mere, saying by witness that complainant was admitted on 14. 1. 1999 without deposing further for what disease and for which period cannot be looked into, as there is no evidence on record regarding this plea. The material brought on record by the respondent company to prove the said fact is insufficient and it cannot be believed that the complainant was having heart diseae prior to the policy. The said objection raised by the respondent-company is not proved, hence rejected. "

THE learned Counsel appearing for the appellant has again contended that from the testimony of above stated Mr. Badri Nath Raina, (employee of the hospital) the admission of the respondent on 14. 1. 1999 in the Cardiology Unit proves the fact that respondent had been suffering from heart ailment which fact had been concealed by him wilfully while filling in the proposal form. The argument has been cotroverted by the Counsel appearing for the respondent by stating that in case the admission of the respondent on 14. 1. 1999 in the Cardiology Unit of the Government Medical College, Jammu, is admitted even then that fact will not prove that he was suffering from such an ailment which required angiography. Such an admission could be for any suspected trouble such as breath-lessness or burning sensation in chest due to gastro-enteritis. Concluding his arguments, he stated that there is no cogent evidence which proves his admission in the GMC ,jammu either on 11. 1. 1999 or on 14. 1. 1999 because from the deposition of Mr. Badri Nath Raina, who is incharge of medical record, it is not proved that on 14. 1. 1999, the respondent was admitted as a heart patient. For the allegation of suppression of a heart ailment at the time of filling the proposal form of the insurance policy in question, the onus was on the insurer appellant to prove this fraudulent act but there is not even an iota of evidence even to suggest that respondent had any co-relating disease regarding which claim has been set up. The learned Counsel appearing for the respondent has placed on record a copy of the order passed by the learned National Consumer Commission, whereby the National Commission has set aside the orders of the State Commission and the District Forum and directed the Insurance Company to pay Rs. 1,38,691 with interest at the rate of 9% per annum from 1. 7. 2002 till the date of payment alongwith Rs. 10,000 as costs. It was held in that case "that most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable for it beause the Insurance Company relies on Clause 4. 1 of their policy in a mala fide manner to repudiate all the claims. It was further held that every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him of which he is genuinely unaware". In the case no material was shown that the petitioner therein had any symptoms like chest pain, etc. before August 2000, so the question of linking the symptoms with the disease did not arise. A Consumer Forum like this Commission has to take a judicial notice that before the issuance of a medical claim a consumer is thoroughly checked by the doctors/doctor, who are/is nominated by the Insurance Company and it is only on their suggestion that the contract is entered into and not otherwise. Before succeeding on the plea of suppression of material ailment, the insurer is required to explain its conduct on this significant aspect of the case also.

LAW cited by the learned Counsel of the appellant laid down by the Apex Court in the case of Oriental Insurance Company Limited v. Munimahesh Patel, IV (2006) CPJ 1 (SC)=vi (2006) SLT 436=2006 (7) Supreme 156, has no application to the facts of the present case, because in that case wrong declaration in proposal form regarding the nature of occupation of the person insured was made and that involved complex factual position and the matter required to be examined by a Court of Law. This is not the position of the case in hand. The appellant insured has failed to prove even the alleged admission of the respondent in the Government Medical College Hospital, Jammu. We are pained to find that the appellant insurer which is a public undertaking corporation has withheld the genuine claim of the respondent on the basis of a forged report prepared by Mr. S. B. Bakshi, Investigator. It is known to everybody that fabrication of a false document falls under the category of cognizable offences in Ranbir Penal Code. The Investigator has not acted fairly and insurer should have checked the veracity of such a report before refusing the medi-claim of a genuine consumer. This case does not suffer from this vice alone but there is a serious allegation of interpolation in the letter written by the brother of the respondent namely, Dr. Chand Tikoo to the Branch Manager of New India Assurance Company Ltd. , Shalimar Road, Jammu. It is alleged the words "he" have been converted into "re". The learned Forum has dealt in detail on this aspect as to how the sense of the have been tampered by converting the word "he" into "re". The learned Forum has dealt in detail how the sense of the letter "he developed breathlessness and Doctors have advised him further investigation and treatment there" has been tampered to change its context by introducing "re" instead of "he" and the sense conveyed is "re-developed breathlessness and Doctors have advised him further investigations and treatment there". The over-writing on the original word "he" converted into "re" with capital "r" is discernible even to a naked eye and such overwriting amounts to forgery which is also a cognizable offence under the penal law. The author of this letter Dr. Chand Tikku is categoric in his statement on oath that his writing has been tampered and it is also a case of forgery. At this stage, we cannot hold whether it is a case of forgery or not because that requires investigation. We trust and hope that responsible officers of the appellant insurer at their own level shall get this allegation investigated and take remedial steps so that there are no such like repetitions in future. In view of the discussion made above, we find no illegality in the impugned order which is upheld. The appeal is found meritless which is dismissed with costs of Rs. 10,000 to be paid by the appellant insurer to the respondent within one month from today. The appellant shall make the payment of the amount awarded by the Forum in the sum of Rs. one lakh along with interest at the rate of 6% per annum as stated therein plus litigation charges of Rs. 5,000 already imposed within this period of one month. File be consigned to the respondents and the record of the Forum be returned forthwith. Appeal dismissed.