NEW INDIA ASSURANCE CO. LTD. vs P.P.KHANNA

DELAY in filing the appeal is condoned.

THIS appeal is directed against the Order dated 12th August, 1993 passed by the Consumer Disputes Redressal Commission, Maharashtra State at Bombay by which the opposite party, the New India Assurance Company, appellant herein, was directed to settle the complainant''s claim on the basis of ''B'' category Medi-claim policy for the expenses of Rs. 12,196/- for angeography, and for coronary artery bye-pass surgery Rs. 1,29,519/- as per the terms of the policy. The facts which have given rise to this appeal are that the complainant, respondent in this appeal, was granted on 17th January, 1991 the hospitalisation and domiciliary benefit policy by the New India Assurance Company Ltd. i.e., the opposite party and the appellant in this appeal. The complainant stated that his family doctor had certified his health condition with reference to diabetes and hypertension and other relevant information as desired by the opposite party before issuing the policy in question. The complainant had stated that he had never suffered heart disease nor was hospitalised for the treatment of any such ailment in the past. The complainant underwent angeography on 18th April, 1991 performed by Dr. Pahaljani at Beach Candy Hospital, Bombay. The bills regarding charges for angeography and hospitalisation was submitted to the opposite party for Rs. 12,196/-with all relevant receipts of payments and certificate issued by the Beach Candy Hospital. But, the opposite party failed to settle the claim despite various reminders. A certificate was issued by the New India Assurance Company Ltd., with an assurance that the Company had arrangements of admission with the Hinduja Hospital without payment by the insured. On the day of admission, the certificate issued by the Company was submitted to the Hinduja Hospital and the same was not accepted by the hospital and they demanded cash before admission. The complainant was admitted to the Hinduja Hospital on 16th June, 1991 after making the cash payment. He underwent the open-heart surgery at the Hinduja Hospital on 18th June, 1991 and was discharged from the Hinduja Hospital on 25th June, 1991. The total expenses incurred by him was to the tune of Rs. 1,17,323/-. The complainant filed a claim with the Insurance Company on 15th July, 1991. As the claim was not settled, the complainant preferred a complaint before the State Commission, for a proper direction for speedy settlement of his claim as per the permissible limits alongwith interest @ 21 percent. Besides this, compensation to the tune of Rs. 50,000/- was also claimed.

THE claim was contested on behalf o

THE opposite party, the Insurance Company on the allegations that the complainant had not disclosed the material facts viz. hypertension or pain in chest at the time of proposing for the relevant insurance policy, that the complainant had taken the overseas medi-claim policy on or about 2nd July, 1990 wherein he had excluded for direct or/and indirect expenses due to the diabetes and hypertension and that the complainant had wilfully failed and neglected to disclose the disease viz. the heart disease and/or its symptoms nor did he disclose that he had taken any treatment for any hypertension, ischemic heart disease and/or chest pain. After hearing the parties, the State Commission returned the finding that the opposite party failed to place on record convincing evidence to show that the complainant was having the heart ailment prior to the issue of the insurance policy in question.

AGGRIEVED by the Order of the State Commission, the Insurance Company approached this Commission by way of this appeal which is under disposal. We have heard the learned Counsels for the parties.

IT was contended on behalf of the appellant that the State Commission had failed to appreciate the evidence produced on record which fully establish that the complainant had suppressed material facts with regard to his heart ailment in the proposal form when he got the insurance policy in question, Before we advert to the merit of the contention raised on behalf of the Insurance Company, it will be convenient to enunciate the relevant law on the point.

THE onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer. The insurer cannot avoid consequences of insurance contact by simply showing inaccuracy or falsity of statement. Burden is cast on the insurer to show that the statement was on a material matter or facts have been suppressed which it was material for the policy-holder to disclose. It is further to be proved that the statement was fraudulently made by the policy-holder with the knowledge of the falsity of statement or that the suppression was of material facts which had not been disclosed. The Courts will not be satisfied with proof which falls short of snowing that intentional misrepresentation was made with the knowledge of perpetrating fraud.

THE appellants placed on record certain material showing that P.P. Khanna was operated by Dr. Ma the w and Dr. Kumar for angioplasty prior to the issuance of the policy in question to the complainant The complainant alleged that the material placed on record related to his son Praveen P. Khanna and was wrongly attributed to the complainant. According to the complainant, all this confusion arose because his initials i.e. P.P. Khanna (Prem Prakash Kahnna) and his son''s initials P.P. Khanna (Praveen Prakash Khanna) were the same. The State Commission after carefully appreciating and perusing the material placed on record by the opposite party came to the finding that the material placed on record related to Praveen Prakash Khanna i.e., the son of the complainant. We have carefully considered the material placed on record. We find that the appreciation of the evidence by the State Commission is reasonable and calls for no interference. There is no convincing and reliable material placed on the was by the opposite party to substantiate the allegations that the complainant had suppressed material information while submitted the proposal form.

IN view of the stand taken by the complainant that the material placed on record by the Insurance Company related to his son, it was incumbent upon the Insurance Company to examine the doctors concerned to fix up the identity of the complainant. No steps were taken by the opposite party in that direction and they simply relied upon a certificate issued by the doctor. The only evidence led by the Insurance Company was by way of an affidavit of Sanad Kumar, an employee of the Insurance Company.

IN these circumstances, the State Commission was justified in holding that the Insurance Company failed to prove that the statement made by the complainant was fraudulently made by him with the knowledge of the falsity of the statement or that the suppression was of material facts which had not been disclosed. The Order of the State Commission is based on cogent reasons and does not suffer from any legal infirmity. We have no hesitation in confirming the Order of the State Commission. In the result, the appeal fails and it is dismissed with costs which are quantified at Rs. 2,000/-.