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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
ICICI Prudential Life
Insurance Co. Ltd. —Petitioner
versus
Dattatrey Bhivsan Gujar —Respondent
Revision Petition No.3858 of 2017
(Against the Order dated 08/09/2017 in Appeal No. 949/2016 of the State Commission Maharashtra)
Decided on 14.6.2019
Counsel for the Parties:
For the Petitioner:Mr. B.S. Banthia, Advocate
For the Respondent:Mr. Akash Gupta, Advocate
IMPORTANT POINT
Insurance Company should rely on medical certificate of competent doctor of concern field.
Headnote:
Consumer Protection Act, 1986—Sections 2(1)(r) and 21—Revision—Deficiency in service—Insurance Claim—Repudiation of—Hospital Care Policy—Complainant underwent dialysis, and subsequently kidney transplant was performed after about four years from issuance of policy—Insurance Co. repudiated the claim by relying principally on one certificate issued by paediatrician—Concern paediatrician is neither a physician, nor an endocrinologist, to certify a person as a ‘diabetic and hypertensive for past 10 years—Nothing is on record that the said paediatrician has either examined or treated the complainant for diabetes or hypertension in the past 10 years. Ex facie, a suspicious medical certificate was issued—Conduct of paediatrician amounts to professional misconduct under the Code of Medical Ethics Regulation, 2002 of the Medical Council of India—Medical record of Bombay Hospital does not, explicitly and categorically, confirm that the complainant was diabetic and hypertensive prior to issuance of policy—Issuance of the ex facie suspicious medical certificate is serious matter—Cost of Rs. 5 lakh imposed—Opposite Party is ordered by District Forum to pay to the Complainant within 60 days of receiving this order 75 % of the insurance reimbursement—Held that, District Forum shall undertake execution as per the law. [Paras 5, 6, 8, 9, 10, 11 and 13]
Result: Revision dismissed.
ORDER
Dr. S.M. Kantikar, Presiding Member—Heard the learned counsel for both the parties and perused the material on record.
2. The dispute relates to repudiation of the complainant’s insurance claim, made under the insurance contract entered into between the Insurance Co. and the complainant.
3. The District Forum had heard both sides, appraised the evidence, and, vide its Order dated 31.10.2015, partially admitted the complaint:
Rationale
5-Issue Nos. 1 to 3– The Opposite Party has raised objection to the jurisdiction of the Forum and given the reference of Hon. Supreme Court in case of Ravneet Singh Bagga v/s KLM Royal Dutch Airlines [(2000) 1 SCC 66] has propounded upon the issue of deficiency in service and has said that only on intentionally providing deficient service the issue of deficient service is proved. In the present complaint the Opposite Party has not, while providing service to the Complainant, intentionally provided deficient service to the Complainant and therefore the present complaint should not be heard in this Forum. Also they have referenced that the Hon. National Forum has propounded the legal principle in the case of Kishore Chandrakant Rathod v/s ICICI Prudential Life Insurance Co. Ltd. and Others (review petition no. 3390/2013) that the Complainant is an educated person and has fully read the terms and conditions of the contract and then taken insurance cover, and for any breach of these conditions resulting in the Opposite Party rejecting the insurance claim the complaint cannot be conducted in front of the Forum. The Opposite Party has said that therefore the Forum has no jurisdiction to conduct the hearing on this complaint. It is proved that after the insurance contract between the Opposite Party and the Complainant, the complainant has not given in writing to the Opposite Party within 15 days of the contract any intimation to cancel the said policy. After the documents submitted by the Complainant to the opposite Party were scrutinized by the specialists appointed by the Opposite Party it was diagnosed that the Complainant had diabetes and the Opposite Party came to know that treatment for the same had been taken and it was verified from the documents submitted by the Complainant but it was established that the Complainant had not disclosed this information to the Opposite Party voluntarily. Therefore it was proved that the complainant had intentionally not given this information to the Opposite Party - - - therefore the Opposite Party has repudiated the Complainant’s insurance claim under section 45 of the Insurance Act 1938, as also under the terms mentioned in condition 5 B (i) of the contract. Therefore the Opposite Party have sent a letter to the Complainant dated 21/12/2012 informing him about the insurance claim being rejected. Since the complainant has breached the terms and conditions of the insurance contract, the Opposite Party has repudiated his claim justly and informed him about it and therefore the Forum does not have jurisdiction to conduct a hearing on the present complaint. Also the Complainant had deliberately withheld from the Opposite Party the information about the Complainant having been diagnosed with diabetes , thus the Opposite Party has no legal obligation to fulfill the insurance claim submitted by the Complainant and so the Opposite Party has committed no deficiency in service to the Complainant and therefore the present complaint should be rejected with expenses under section 26 of the Consumer Protection Act based on the available documents. After stating this, as held by Hon. Supreme Court in the judgments in the cases of United India Insurance Co. Ltd. v/s harchand Rai Chand Rai Chandalal I (2003) CPJ 393 and Vikram Greentech (I) Ltd. & Another v/s New India Assurance Co. Ltd. , II (2009) CPJ 34 and also Export Credit Guarantee Corporation of India Ltd. v/s Garg Sons International [2013 (I) Scale 410 ) ] it was held that breach of terms and conditions of the
