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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
D.K. Jain, President, Vinay Kumar, Member, Mrs. M. Shreesha, Member
Amitava Dutta —Petitioner
versus
National Insurance Company Limited
& Ors. —Respondents
Revision Petition No. 446 of 2009
(Against the Order dated 10/06/2008 in Appeal No. 446/2007 of the State Commission West Bengal)
Decided on 15.4.2015
Counsel for the Parties:
For the Petitioner:Ms. Surekha Raman, Advocate as Amicus Curiae
For the Respondent Nos.1 & 2: Nemo
For the Respondent No.3:Mr. Kunal Chatterjee, Advocate
IMPORTANT POINT
Onus is on insurer to prove that policy holder had suppressed a fact which was material to disclose.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Insurance—Mediclaim Policy—Operation for removal of heel abscess—Insurance Company repudiated Complainant’s claim on ground that Claimant had suppressed pre-existing disease of heel abscess—Onus is on insurer to prove that policy holder had suppressed a fact which was material to disclose—Respondents did not file any proposal form or any declaration statement to prove suppression of any pre-existing disease—Insurance Company while stating that Claimant had been suffering from the ailments before commencement of date of insurance coverage, did not specify nature of ailment which was suppressed—Insurance Company directed to pay claim amount with 12% interest and costs of Rs.10, 000/-. (Paras 12 to 14)
Result: Revision Petition allowed.
M. Shreesha, Member—Aggrieved by the order dated 10.06.2008 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) in S.C. Case No. 446 of 2007, the National Insurance Company Limited preferred this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”). By the impugned order, the State Commission has allowed the Appeal and set aside the order passed by the District Consumer Forum, Calcutta Unit-I on 29.3.2007 in C.C. No. 176 of 2005 (for short “the District Forum”). By the said order, the District Forum had awarded against the Petitioners a sum of Rs.5,140/- with interest @ 8% per annum and Rs.1,000/- as compensation and costs of Rs.500/-.
2. The brief facts of the case, according to the Petitioner who was the original Complainant before the District Forum, are that the Complainant had obtained a Medi-claim Insurance Policy, dated 31.3.2003 through Golden Trust Financial Services, covering the period from 31.3.2003 to 30.3.2004. This Policy covered the following family members of the insured:
Insured Person(s) Age Sum Assured (in Rs.)
1. Amitava Datta 48 years 35,000/-
2. Sipra Datta 40 years 35,000/-
3. Polly Datta 42 years 35,000/-
4. Ankitava Datta 1 year 35,000/-
3. While so, on 18.3.2003, the Complainant’s sister suddenly suffered from a heel abscess and was treated at Dum Dum Municipal Specialised Hospital, Kolkata and was operated on 21.3.2003 and once again on 28.3.2003, for which treatment, an amount of Rs.5,139.45/- was spent.
4. On 11.8.2003, the Complainant claimed the said amount from the Insurance Company and submitted all the particulars. The Insurance Company vide their letter dated 19.5.2004 repudiated the Complainant’s claim on the ground that the Claimant had suppressed pre-existing disease of heel abscess. The Complainant pleaded that the illness was first detected on 18.3.2003 whereas the risk of insurance coverage began from 31.3.2003. The Complainant averred that medi-claim premium of Rs.1,648/- was first deposited on 10.3.2003 through Opposite Party no. 3, their agent. The Insurance Company issued a certificate after 21 days from the date of receipt of the premium amount. The claimant suffered from heel abscess on 18.3.2003 which is subsequent to the deposit of the medi-claim premium. The Complainant averred that he is entitled to reimbursement of the insurance amount for Rs.5,139.45/-, which are the medical expenses incurred by his sister. The act of the Insurance Company in repudiating the claim on the ground of pre-existing disease amounts to deficiency of service and therefore, the Claimant seeks direction to the Insurance Company to pay the medi-claim amount of Rs.5,139.54/- together with interest @ 18% per annum from 11.8.2003 till the date of realisation.
5. Opposite Party nos. 1 and 2 received notices in the complaint but did not choose to appear before the District Forum.
6. Opposite Party No. 3, Golden Trust Financial Services, filed their written version and pleaded that, with a view to getting insurance coverage for all its members, it had entered into an agreement with National Insurance Company and collected the premium from its members and remitted the same to the Insurance Company which issued the necessary certificate of policy. Its role is only that of a facilitator and it immediately forwarded the claim papers of the Complainant to the Insurance Company who acknowledged receipt on 11.8.2003. The exclusive authority with regard to settlement or repudiation of the claim lies with the Insurance Company and therefore, no deficiency of service can be attributed to this Opposite Party.
7. The District Forum based on the evidence, allowed the complaint and directed the Opposite Party nos. 1 and 2 to pay Rs.5,140/- along with interest @ 8% per annum together with compensation of Rs.1,000/- and costs of Rs.500/-.
8. Aggrieved by this order, the first Opposite Party/Insurance Company preferred an App
