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2007 (3) CPR 206
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
R.S. Mongia, President; C.P. Budhiraja and Mrs. Jasbir Kaur, Members
New India Assurance Co. Ltd.
& Ors.—Appellants
versus
Sant Kumari Puri & Ors.—Respondents
First Appeal No. 605 of 2007 with Misc. Application Nos. 835 and 836 of 2007
Decided on 9-5-2007
Counsel for the Parties:
For the Appellants:Brig. B.S. Taunque (Retd.), Advocate.
IMPORTANT POINT
When Insurance Company had knowledge about pre-existing disease, the subsequent claim for its treatment cannot be repudiated on the ground that disease existed without knowledge of Insurance Company even when the first policy was taken.
Headnote:(i) Consumer Protection Act, 1986—Sections 15 and 19—Appeal to State Commission—Filed late—Application for condonation of delay—Sufficient cause shown—Delay condoned. (Paras 1 to 3)
(ii) Consumer Protection Act, 1986—Sections 15/19 and 2(1)(g)—Appeal against allowance of medi-claim insurance complaint—Insured having pre-existing heart disease—Claim for its treatment allowed by Insurance Company in previous year—In current year, when claim again made, disallowed on non-disclosure of pre-existing disease—Whether correct? (No)—Order of District Forum is maintained—Appeal dismissed.
Held: The question that arises is that if there is a pre-existing disease and either the person to be insured discloses it to the insurer or the insurer is deemed to have the knowledge of the pre-existing disease, in other words, the knowledge of the pre-existing disease can be attributed to the insurer is it not possible for the Insurer to enter into a contract? The answer is in the affirmative. Nothing stops the insurer to enter into a contract even when the insured discloses pre-existing disease or the insurer has the knowledge of the same. In the present case, what we are to decide is when the policy for the year 2005-06 was got renewed in which the complainant mentioned the previous policy numbers which is also mentioned in the policy for the year 2005-06, the knowledge that the complainant had heart disease can be attributed to the insurer. The Insurance Co. had accepted the claim of the complainant in the year 2003-04 regarding the mediclaim or treatment of heart disease. That policy number was given by the insured while taking the policy for the year 2005-06. Previous policy number is mentioned in the latest policy. It was incumbent on the Insurance Co. to check up the record as to whether any claim had been taken by the insured regarding the previous policy. It is admitted before us that while taking the policy for the year 2005-06 there is no column to be filled by the insured as to whether the insured has taken any claim qua the previous policy. In these circumstances, the knowledge regarding pre-existing disease would be attributed to the Insurance Co. as it had accepted the claim of the insured qua the previous policy. That being so, the Insurance Co. cannot repudiate the claim of the complainant on the ground that the disease existed somewhere prior to the year 2001. (Para 10)
Held consequently: For .the foregoing reasons, we do not find any infirmity in the order of the District Forum when it allowed the complaint. Finding no merit in this appeal the same is hereby dismissed in limine. (Para 11)
Result: Misc. Application allowed but appeal dismissed in limine.
R.S. Mongia, President.— Misc. Application for condonation of delay:
After hearing the learned counsel for the appellants and going through the contents of the application we find that sufficient cause has been shown for not filing the appeal within time. Consequently, the delay in filing the appeal is hereby dismissed.
2. Misc. Application stands disposed of.
3. We have condoned the delay without calling the other side for the view we are taking in the main case.
Main Case:
4. This is an appeal by the New India Assurance Co. Ltd. against the judgment and order of the District Forum dated 20.3.2007 by which the complaint of the complainant was allowed in the following terms:
“18. For the foregoing reasons and discussion, we accept the complaint and direct the opposite parties to make the payment of Rs. 3.00 lacs of mediclaim policy with 9%, interest from the date of repudiation of tie claim till its realization. We also direct the opposite parties to make the payment of Rs. 20,000/- for mental agony and harassment and Rs.1000/- as cost of the complaint.”
5. Sant Kumar Puri complainant had filed a complaint before the District Forum against the present appellants alleging that he had taken a mediclaim policy for the first time from the appellant Insurance Co. for the period 7.12.2001 to 6.12.2002 in the sum of Rs. 2 lac. After the lapse of the said policy complainant again took mediclaim policy on 18.4.2003 valid upto 17.4.2004. Thereafter, the said policy was renewed for the year from April 2004 to April 2005 and further from April 2005 to April 2006. While the mediclaim policy for the year 2004-05 was still subsisting the complainant underwent some treatment pertaining to heart problem and lodged a claim with the Insurance Co. and the claim was allowed to the extent of Rs. 1,11,512/-. It so happened that the complainant also underwent some medical treatment for heart when the policy for the year 2005-06 was subsisting. It may be observed here that the policy for the year 2005-06 was for Rs. 3 lac. After getting the treatment a claim in the sum of Rs. 3,35,621/- was lodged with the Insurance Co. but the same was repudiated on the ground that the complainant had a pre-existing disease even when the first policy was taken. For this reliance was placed on a letter written by the complainant dated 17.5.2005 to the Divisional Manager of the Company at Khanna in which it is mentioned that the complainant had undergone peripheral angiography on 16.9.2001. From this admission on the part of the complainant it was being deduced that when the original policy was taken he was suffering from some heart disease as also when the last policy for the year 2005-06 was taken.
6. After the repudiation of the claim a complaint was filed before the District Forum which has been allowed as aforesaid.
7. The stance taken by the Insurance Co. was that if by some inadvertent mistake or wrongfully the earlier claim .of the complainant during the subsistence of the policy for the year 2003-04 had been allowed it would not mean that the same mistake be repeated. Since the complainant had a pre-existing disease which fact was not disclosed no payment could be allowed under the policy for the year 2005-06.
8. After appreciating this stance and negativing it the District Forum allowed the complaint as aforesaid. Hence the present appeal.
9. The same argument, as was raised before the District Forum, has been raised by the learned counsel for the Insurance Co. The argument is that at the time the initial policy in the year 2001-02 was taken on 7.12.2001 and subsequent renewal the complainant had a heart problem which he withheld inasmuch as he later on admitted in his letter dated 17.5.2005 that he had undergone peripheral angiography on 16.9.2001. If the payment of the claim was made during the subsistence of policy of 2003-04 by some mistake or oversight it would not mean that the complainant is entitled to claim the mediclaim of the policy for the year 2005-06
