UNITED INDIA INSURANCE COMPANY vs RAJESH BASSI

THIS appeal has been directed by opposite parties 1 and 2 i. e. United India Insurance Company against order dated 27. 11. 2007 passed by Consumer Disputes Redressal Forum-II, U. T. Chandigarh (hereinafter to be referred as District Consumer Forum), vide which complaint of respondent No. 1 Mr. Rajesh Bassi was accepted with cots of Rs. 3,000 and appellant as well as M/s. Paramount Health Services Pvt. Ltd. respondent No. 2 were directed to pay Rs. 3,47,498 along with interest @ 9% p. a. from the date of repudiation of the claim i. e. 20. 3. 2005 till the date of payment and further to pay Rs. 1,500 as compensation for harassment and mental agony.

BRIEFLY stated the facts are that Shri Rajesh Bassirespondent No. 1 (complainant) had taken medical policies Annexures C-1 to C-5 starting from 7. 3. 2000 till 5. 3. 2005 on yearly basis. The last policy Annexure C-5 was for the period 6. 3. 2004 to 5. 3. 2005 for a sum of Rs. 4 lakh with bonus of Rs. 50,000. It was further renewed for the period 6. 3. 2005 to 5. 3. 2006 for a sum of Rs. 5 lacs with a bonus of Rs. 1. 25 lacs. It was next averred that respondent (complainant) felt uneasiness in Feb. 2005 and he consulted his regular medical consultant who after preliminary investigation found him to be suffering from diabetes mellitus and hypertension and further suspected him to be a case of some heart problem and advised him to consult the cardiologist. Accordingly he consulted cardiologist in Fortis Hospital, Mohali where he remained admitted from 14. 2. 2005 to 17. 2. 2005 and underwent coronary angiography and angioplasty. As per advice of hospital doctors, he again remained admitted in Fortis Hospital on 9. 3. 2005 and for further follow-up and treatment he again remained admitted in Escorts Heart Institute and Research Centre from 18. 3. 2005 to 20. 3. 2005. During this period further coronary angiography and angioplasty were done and then he was again admitted in Escorts Hospital on 22. 4. 2005.

It was next averred that he did not get full relief at Fortis Hospital and Escorts Hospital and he was again admitted in Fortis Hospital on 14. 8. 2005 and 15. 8. 2005 and was still on follow-up medication. The first illness occurred during the currency of the first policy from 6. 3. 2004 to 5. 3. 2005. He had lodged claim for Rs. 3,47,498 for treatment expenses incurred by him during the currency of the policy with M/s. Paramount Health Services, authorized agent of United India Insurance Company on 22. 4. 2005. The claim was repudiated by M/s. Paramount Health Services vide letter dated 20. 3. 2005 Annexure C-8 on account of pre-existing disease of diabetes mellitus and hypertension. He had even made representation dated 26. 4. 2005 Annexure C-9 but the same was rejected vide letter dated 4. 5. 2005 Annexure C-10.

ALLEGING deficiency in service, the complaint was filed and respondent No. 1 prayed that United India Insurance Company and M/s. Paramount Health Services be directed to pay Rs. 3,47,498 as medical expenses incurred for treatment with interest @ 18% besides Rs. 50,000 for mental agony, etc. besides Rs. 11,000 as litigation expenses. None appeared on behalf of Paramount Health Services, hence, it was proceeded against ex parte on 3. 4. 2007.

HOWEVER, United India Insurance Company contested the complaint and filed written reply. It stated that claim of respondent No. 1 (complainant) was rightly repudiated under exclusion Clause 4. 1 of policy condition as on scrutiny of medical papers it was observed by Paramount Health Services respondent No. 2 that he was a known case of diabetes mellitus type-2 and hypertension since years which were major risk factor for the heart stroke, so, claim was rightly repudiated and there was no deficiency on its part. Parties adduced their evidence by way of affidavits. After hearing Counsel for the parties, District Consumer Forum vide order dated 27. 11. 2007 accepted the complaint with costs of Rs. 3,000 and granted claim as stated in the earlier part of the judgment.

AGGRIEVED by the said order, OP Nos. 1 and 2 i. e. United India Insurance Company have filed the present appeal.

RESPONDENT No. 2 M/s. Paramount Health Services was ex parte in the District Consumer Forum and in appeal it was sought to be served but report was received that it had shifted the premises. The appellant did not file proper address, hence, its service was abandoned as it was ex parte in the District Consumer Forum also. We have heard Counsel for appellant Mr. V. Ramswaroop, Mr. B. J. Singh, Advocate for respondent No. 1 and carefully gone through the file.

It is an admitted fact that respondent No. 1 Sh. Rajesh Bassi (complainant) had got mediclaim insurance policies from United India Insurance companies which are Annexures C-1 to C-5. The policy Annexure C-5 was for the period 6. 3. 2004 to 5. 3. 2005 for a sum of Rs. 4 lacs with bonus of Rs. 50,000. The case of respondent No. 1 is that in the beginning of February, 2005 he felt uneasiness and consulted his regular medical consultant who after investigation found him to be suffering from diabetes mellitus and hypertension and further suspecting him to be a case of some heart problem and advised him to consult the cardiologist. Accordingly he remained admitted from 14. 2. 2005 to 17. 2. 2005 in Fortis Hospital, Mohali where he underwent coronary angiography and angioplasty and then as per advice of Fortis hospital, he again was admitted on 9. 3. 2005 and was discharged on the same day. Thereafter, for follow-up treatment, he remained admitted in Escorts Heart Institute and Research Centre from 18. 3. 2005 to 20. 3. 2005 and further coronary angiography and angioplasty were done at the Escorts Hospital and then he was again admitted in Escorts Hospital on 22. 4. 2005. Since, he did not get full relief at Fortis Hospital and Escorts Hospital and he was again admitted in Fortis Hospital on 14. 8. 2005 and 15. 8. 2005 and was still taking medication. In this way, he spent Rs. 3,47,498. Consequently he filed claim with M/s. Paramount Health Services, -respondent No. 2 which was authorized agent of United India Insurance Company. But his claim was repudiated vide letter Annexure C-8 dated 20. 3. 2005. It was rejected on the ground that he was a known case of diabetes mellitus and hypertension for the last 15 years which was a major risk factor for heart ailments from which he suffered.

ACCORDING to respondent No. 2, pre-existing diseases were not covered under the terms and conditions of the policy. In our opinion, there is no evidence on file that before getting himself admitted in Fortis or Escorts Hospitals, respondent No. 1 was suffering from diabetes mellitus and hypertension. It is not the case that he had got medical policy for the first time for the period 6. 3. 2004 to 5. 3. 2005 but he had been getting mediclaim policies starting from 7. 3. 2000 on yearly basis. No objection was ever raised by the United India Insurance Company that he was suffering from some pre-existing disease or recitals made in the proposal form were false. It has been observed by the Hon''ble Apex Court in LIC of India and Others v. Asha Goel and Another, 2001 (1) Con. LT 162 (SC), after examining the scope of Section 45 of the Insurance Act that three conditions were necessary for the application of second part of Section 45 (a) of the Insurance Act,1938 namely, (a) the statement must be on a material matter or must suppress facts which were material to be disclosed; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that he had suppressed facts which were material to be disclosed. Mere inaccuracy or falsity in respect of some recitals in the proposal was not sufficient. The burden of proof was on the insurer to establish these circumstances and unless it is done by the insurer, the policy cannot be avoided on the plea of mis-statement of facts.

IT is true that contracts of insurance including the contracts of life assurances are contracts uberrima fides and every material fact must be disclosed otherwise there was good ground for rescission of the contract. In the present case, United India Insurance Company has not led any evidence that respondent No. 1 had misrepresented any material fact or suppressed the same. There is no documentary evidence on the file that prior to getting mediclaim policy on 7. 3. 2000 respondent No. 1 was suffering from hypertension and diabetes mellitus. There is also no satisfactory evidence that respondent No. 1 was suffering from hypertension and diabetes mellitus for the last 15 years. The appellant has not led any evidence that hypertension and diabetes mellitus had connection with heart disease and he had suffered heart disease due to existence of these diseases. The photocopy which now appellant had sought to be produced on file by way of additional evidence i. e. Admission Request Note dated 15. 2. 2005 of the Fortis Heart Institute cannot be taken into account because no effort was made by the Insurance Company in the District Consumer Forum to summon the original record. It is also not known as to who had told that respondent No. 1 was suffering from hypertension and diabetes mellitus for the last 15 years. Mere alleging this fact without any proof cannot be ground for believing that he was suffering from hypertension and diabetes mellitus for the last 15 years. It is clearly mentioned in Annexure C-6 that he went for consultation of current ailment for the first time in February, 2005. Thus, the agent of United India Insurance Company M/s. Paramount Health Services had rejected the claim of respondent No. 1 without any basis. We concur with the reasoning given by the District Consumer Forum and hold that there is no force in the appeal. Consequently, it is dismissed with costs of Rs. 20,000.

COPIES of this order be communicated to the parties, free of charge. Appeal dismissed.