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Judgment
Dr. Sadhna Shanker, Member
This appeal has been filed under section 19 of the Consumer Protection Act, 1986 in challenge to the Order dated 21.07.2016 of the State Commission in complaint no. 112 of 2014 whereby the complaint was allowed.
We have heard the learned counsel for the appellant (hereinafter referred to as the ‘insurance company’) and the learned counsel for the respondent (hereinafter referred to as the ‘complainant’) and perused the record including the State Commission’s impugned Order dated 21.07.2016 and the memorandum of appeal.
The appeal has been filed with a delay of 77 days.
In the interest of justice, inter alia considering the reasons given in the application for condonation of delay, the delay of 77 days in filing the appeal is condoned.
The brief facts of the case are that Mr. Umed Singh, father of the complainant (hereinafter referred as the ‘insured) had obtained a life insurance policy for a period of ten years commencing from 05.06.2012 to 04.06.2022 for an insured amount of Rs.25,00,000/- from the insurance company. Unfortunately, the insured died on 03.07.2012 at the age of 44 years. The complainant submitted a claim with the insurance company. The insurance company vide its letter dated 30.10.2012 repudiated the claim of the complainant on the ground that “the deceased life assured was a known case of Verrucous Cancer and was undergoing treatment for the same since September 2010. This fact in respect to the pre-existing medical ailment was not disclosed in the proposal form.”
Aggrieved by the repudiation by the insurance company, the complainant filed a complaint before the State Commission.
The insurance company resisted the complaint by filing written statement and stated that the insured had suppressed the material fact that at the time of taking the insurance policy, he was suffering from Verrucous Cancer and was undergoing treatment for the same since September 2008, which is a violation of the terms and conditions of the insurance policy. It is further stated that as per the Medical report dated 24.09.2008 conducted at NC Jindal Institute of Medical Science bearing Lab. Ref. NO. 4077/J-632 the insured was diagnosed with “MUCOEPIDERMOID CARCINOMA” which is a distinct type of tumors and he got the treatment from that hospital. The policy was taken on 05.06.2012 and the insured died on 03.07.2012 within 28 days from getting the policy, which clearly shows that the policy was taken by the insured only to get the benefits at the cost of the insurance company.
The State Commission, vide impugned Order dated 22.02.2018, allowed the complaint and directed the insurance company to pay the insured amount along with interest at the rate of 9% per annum from the date of filing of the present complaint i.e. 29.10.2014 till its actual realization. Rs. 15,000/- towards compensation for harassment, mental agony and Rs. 5,000/- towards litigation expenses were also awarded.
Aggrieved by the said Order of the State Commission, the insurance company filed the instant appeal before this Commission.
Learned counsel for the insurance company has argued that the insured had not disclosed the material fact that at the time of obtaining the insurance policy, the insured was a known case of Verrucous Cancer and had undertaken the treatment for the same from September 2008 to Oct. 2010 at O.P. Jindal Institute of Cancer and Research, Model Town, Delhi Road, Hissar. He further argued that the State Commission erred in holding that the medical record was not authenticated by the doctor and no doctor was examined by the insurance company which is contrary to the position of law, as settled by the Hon’ble National Commission in LIC of India vs. Krishan Chander Sharma – II (2007) CPJ 53 (NC) wherein it has been held that if there is other credible evidence to prove that DLA was suffering from any pre-existing disease, mere absence of an affidavit of the concerned treating doctor is not an adequate reason to reject the proof.
Learned counsel for the complainant has argued that before issuing the policy the insured had been examined by the doctors of the insurance company and only after satisfying the medical examination the policy was issued. He further argued that the medical record and the investigation report produced by the insurance company are not an authenticated one as the insurance company has failed to produce the original treatment record as well as investigation report as admitted by Sh. Taj Tam Thakur. He furthermore submitted that neither any doctor nor the investigator had been examined nor any affidavit in respect of medical record has been filed and the State Commission has passed a well-reasoned Order and the appeal is liable to be dismissed.
The main issue for our consideration is as to whether the insured suppressed the material fact that he was suffering from cancer at the time of obtaining the insurance policy.
In order to prove that the insured was suffering from cancer, the insurance company relied on the report of the investigator and the medical record collected by him. The NNB Investigators in its report had concluded as under:
The LA died at his residence on 03.07.2012.
The LA was suffering from cancer and he was taking treatment from Jindal Hospital, Hisar since September 2010
The LA was admitted at Jindal Hospital, Hisar on 28.09.2010 with IP. No. 1081/10.
Note. The LA’s medical record file is not traceable in the hospital. Recently several insurance claims have been rejected from the hospital and the claimants did riot with the hospital’s authority. Hence, the hospital’s authority is very strict and did not provide any details of the patient’s to any third party.
From a perusal of the ‘Note’, it is clear that the insured’s medial record is not traceable in the hospital and the investigator has not stated the source from where he got the medical record of the insured. In such situation it cannot be presumed that the insured had received the treatment for Cancer. Additionally, neither any doctor nor any official from the hospital has filed any affidavit to corroborate the fact that the insured had taken the treatment. Additionally, the medical record produced by the investigating agency is not certified by any official or doctor of the hospital, therefore, no reliance can be placed on it.
Once the complainant has stated that the insured was not suffering from Cancer at the time of obtaining the insurance policy and the record produced by the investigator is not authenticated, it is imperative for the insurance company to lead evidence to prove that the insured was suffering from the Cancer at the time of obtaining the policy and took the treatment from the aforesaid hospital, which could be done by summoning the record from the hospital or by summoning an official of the hospital or one or more of the doctors who allegedly treated the insured. The insurance company has failed to produce any evidence to corroborate the fact that the insured was suffering from Cancer while obtaining the insurance policy. It is necessary for the investigator to inform the source from which he got the medical record of the insured and on what basis, he came to the conclusion that the insured was suffering from cancer but the investigator has neither disclosed the source of obtaining medical record nor filed any affidavit. Hence, the investigation report does not support the case of the insurance company. No such evidence has been led before us in the matter either.
In view of the foregoing, we do not find any reason to interfere with the impugned Order dated 21.07.2016 of the State Commission.
The appeal being without merit is dismissed. All pending I.A.s shall stand disposed of.