DEBASIS BASU vs National Insurance Co. Ltd.

BY the appeal this judgment and order of the Calcutta District Forum has been assailed by the appellant. The case of the appellant before the Calcutta District Forum was that he lodged a claim of Rs. 13,107/- for medical expenses with the respondent/opposite party under a joint medi-claim Policy valid from 27.9.89 to 26.9.90 for which the complainant duly paid the premium of Rs. 1000/-. The wife of the complainant fell ill in November, 1989 and undergone a surgery in December 1989 for operation of her gall-blooder. After operation of the complainant''s wife he put up in February 1990 a claim of the said sum of Rs. 13,107/-. The Insurance Company rejected his claim in March 1990 on the ground that the decease was an old one and there was material suppression of fact at the time of opening the policy. The opposite party respondent has also denied the allegation of deficiency in service or of unfair trade practice. The opposite party also contended that insured and his wife were aware of the existence of disease which is very old one at the time of opening the policy and relying upon the opinion of the panel doctors the opposite party rightly repudiated the claim of the complainant. Dr. D. Mukherjee the physician of the complainant''s wife changed the original date in the medical certificate as 9.11.89 instead of 1.10.89 in different ink and probably in different handwriting. Dr. Mukherjee suggested some pre-operative blood test for operation of the complainant''s wife and might have been diagonised the case with cnolecys factomy or ultra sonography tests which were suppressed by the complainant. The case of the complainant has been determined as per provisions of the medi-claim Policy so the complainant as alleged by the opposite party is not entitled to any relief from the Forum.

THE Ld C.D.F. upon its finding and relying on the decisions reported in I (1991) CPJ 78 (NC), 1992 (1) CPR 478 (S.C. Karnatak) and 1992 (1) CPR 698 (S.C. Karela) dismissed the petition of complaint filed by the complainant hence this appeal. The grounds taken in appeal are that the complainant/appellant submitted reports of three eminent doctors viz. Dr. Dipak Mukherjee, Dr. U. Banerjee and Dr. S. Lahiri who are all specialists in the medical field and opined that the decease was not necessarily existing earlier and that the term Chronic Cholecystitis was used in the certificate as per medical term whereas the opposite party got opinion of its two panel doctors namely Dr. S.K. Basu and Dr. S.K. Poddar who reported that disease was pre-existing and the said reports of opposite party''s panel doctors were not submitted before the C.D.F. In the grounds of appeal it was also contended that to take recourse of the Civil Court would involve expenses, harassment for long drawn litigation and thus the purpose of the Consumer Redressal Forum meant for speedy relief at the same time non-expensive would be furstrated and also alleged that the opposite party has adopted unfair trade practice and exploitation the consumers who have resorted to the Insurance Company. Accordingly, the appellant has prayed for setting aside the judgment and order of C.D.F. and to grant relief the claim amount of Rs. 13,017/- and compensation of Rs. 5,000/- for non-settlement of claim of the complainant by the opposite party.

The opposite party in its written statement repeated its allegations and/or contentions as per written statement filed before the C.D.F. and the opposite party also cited certain other decisions such as I (1991), CPJ 234 (NC), II (1991) CPJ 354 (S.C. Delhi), I (1992) CPJ 36 (NC) in addition to decisions cited in the judgment of the C.D.F. which are I (1991) CPJ 78 (NC), 1992 (1) CPR 478 (S.C. Karnataka), 1992 (1) CPR 698 (S.C. Kerala)

THE appellant filed his rejoinder to the opposition filed by the opposite party. JUDGMENT It appears to us from the materials on record that Dr. D. Mukherjee started his treatment to the complainant''s wife since 9.11.89 as per his letter dt. 2.6.90 addressed to the Divisional Manager, Insurance Co., annexed as Exhibit 1 to the petition of rejoinder in a memo of appeal. The opposite party has contended to prove its stand that the insured''s ailment exposed within a month from the date of insurance is not entitled to benefit of the Mediclaim Policy. The opposite party has continuously contended about charge of date in the medical certificate issued by Dr. D. Mukherjee alleging that it has been done by different ink and probably different hand writing although there is a counter signature at the bottom of the change. The opposite party has also suppressed the letter dt. 2.6.90 by Dr. Mukherjee addressed to the opposite party where clarification of date is abundantly clear and the Doctor Mukherjee admitted his mistake in his said letter dt. 2.6.90. So the contention of the opposite party about non-availability of the benefit of the scheme on the ground of starting treatment within a month of the medi-claim opened on 27.9.89 fails in view that the treatment was started from 9.11.89. As regards contention of pre-existence of the disease of the complainant''s wife we are of opinion that said contention is of no value in view that the three eminent Doctors in the Medical filed have opined that chronic cholescystires does not mean that the patient had suffered from the disease for years or had any pre-existing knowledge about her precise medical condition. On the other hand reports of the two panel Doctors of opposite party who are far less qualified than those Doctors examining the complainant''s wife and are also employees of the opposite party cannot be relied, upon as genuine. We also do riot find any reason to dis-believe the reports of three eminent Doctors given in favour of complainant''s wife. As per medical science it is fact that human body bears germs of every disease in latent way when it is exposed it becomes disease, so the germs of disease in human body is chronic in one sense but it cannot be called chronic disease until exposed. We cannot accept the contention of the opposite party about knowledge of pre-existence of the disease of the complainant''s wife we must hold that the Ld. C.D.F. placing much reliance upon the opinion of the panel Doctors of the opposite party has committed error in facts.

THE decisions in the case of Janata Machine Tools v. Orient Insurance Co. Ltd. reported in I (1991) CPJ 234 (NC) the claim was found to be false after proper investigation. THE present case is distinguishable from the said decision in the sense that there is no falsity in the claim made by the complainant, hence the ratio of said decision is not applicable to this case. Similarly the views in the case of Continental Chemical Ltd. v. General Insurance Co. & Anr. reported in II (1991) CPJ 354 which follows the decision of the National Commission in the case Janata Machine Tools (supra) is of no avail in this case. In reply the said decisions the case of Sarada Ben & Ors. v. Gas Supply Company & Ors. reported in 1992 (1) CPR 508 decided by National Commission is referred to, wherein the National Commission over-ruled the decision of the Gujarat State Commission which declined to exercise jurisdiction on the ground that the disputed questions of facts and laws are involved and evidences to be recorded and suggested to approach Civil Court. It was further held that the provisions of C.P. Act in that case would be nugatory and poor consumer will not be enabled to take benefit of the benevolent provisions of the Act. When the Consumer Redressal Forum is also empowered to examine witnesses and take evidences if circumstances require so, it can also take evidences by examining witnesses, but if it directs the consumer to approach Civil Court off and now on the ground of complicated issue of fact requiring oral elaborate voluminous evidence which is very relative term without proper application of mind that would be very painful for the consumer. To us this matter does not involve complicated issue at all and such finding by C.D.F. is failure to exercise jurisdiction vested in it. THE question involved in the decision in the case of Rajdeep Leasing And Finance Company Ltd. & Ors. v. New India Assurance Co. Ltd. reported in I (1992) CPJ 36 (NC) is that claim about a stolen truck which was duly insured proved to be false and fabricated after proper investigation, but the instant case is neither a false nor fabricated one, hence the ratio of the case is not applicable to it. THE ratio in the case of Special Machines v. P.N. Bank reported in I (1991) CPJ 78 (NC) is not applicable in the instant case because the disputes in the said case were firstly the matter was subjudice in the Civil Court prior to lodging complaint before the Consumer Redressal Forum, secondly to provide financial help by the Bank of the Consumer is not under legal obligation and refusal thereby does not constitute deficiency in service, thirdly, the losses suffered for 12 years for refusal by the Bank to extend credit facility to the complainant does not come within purview of the C.P. Act, fourthly the Consumer Redressal Forum cannot determine all those complicated issues and cannot exercise jurisdiction not vested in it. Similarly referring to the case of Kongra Anath Ram v. Telecom District Engineer reported in I (1992) CPJ 247 has now become fashion for every one and probably by referring the said decision every one wants to shield himself by saying the Consumer Redressal Forum is powerless to pass order "to do or desist", but. we presume that such defence is taken by anybody is due to dim idea about provisions of Section 14 of the C.P. Act as a whole. THE observation was made by the National Commission in interpreting the Clause (d) of Section 14 but plain reading of Clauses (a), (b) & (c) of Section 14 reveals that it amply empowers the Consumer Redressal Forum to award appropriate reliefs in nature of "to do or desist" some-body in addition to awarding compensation, practically National Commission has also passed such type of order "to do or desit" in all the cases while disposing them finally. THE decisions in the cases of Sri Hanuman Oil Mills v. United Insurance Co. Ltd., reported in 1992 (1) CPR 478 and the Divisional Manager, United India Insurance Co. Ltd. v. Babu Sebastian are not applicable in the instant case as those complaints were made on false allegations which were proved after investigation. The cases of the Divisional Manager, Life Insurance Corporation of India v. Uma Devi reported in II (1991) CPJ 516, the case of New India Assurance Co. Ltd. v. Vipro Electronics (P) Ltd. reported in I (1991) CPJ 335 (NC), the case of L.I.C. of India v. Shri B.S. Reddy reported in II (1991) CPJ 189 (NC) and in the case of Sushila Gautam v. National Insurance Co. Ltd., reported in II (1991) CPJ 3 all decided by National Commission fully support the case of the appellant. In those cases the National Commission held that it is not at all tenable that Consumer Redressal Forum cannot entertain a complaint from a insured merely because that the claim of the insured has been repudiated. The Consumer Redressal Forum can well entertain if it finds that activities of Insurance Co. have made an exception of the facilities available to the insured in connection with the insurance as provided under the C.P. Act. Further it has been held that mere repudiation of claim arising out of insurance u/Sec. 45 of Insurance Act cannot take away jurisdiction of the Consumer Redressal Forum, constituted under the Act. The avowed object of the Act is to provide cheap, speedy, and efficacious remedy to the consumers and it is with this object that Section 3 of the Act lays down, "The provision of this Act shall be in addition to and not in derogation of provisions of any other law for time being in force." The provision of this Act therefore do not come in conflict with the provisions of any other laws for the time being in force and are in addition to the provisions of any other laws for the time being in force.

THE very fact that the Insurance Act provides for machinery for remedy for grievances arising out of repudiation of a claim under Section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the Consumer Forum has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as it deems if it is satisfied that there was deficiency in service.

IT is held further that repudiation of a claim on mere allegation that there was Suppression of facts by the insured a t the time of filing the proposal cannot debar a forum constituted under the Act from adjudicating upon a dispute arising out of such a repudiation and to investigate whether such a repudiation was justified or not and to grant relief, if any, if such a repudiation of seeking redress through the Consumer Protection Act by the simple subterfage of rejecting the claim outrightly and thus driving him to the tortures and weary path of Civil litigation. IT was also confirmed and agreed that wrongful arbitrary or mischievous rejection of the insurance claim would patently be a default within its broad meaning. Further, in the case of S.K. Sukur v. State of Orissaand Ors. reported in II (1991) CPJ 202 (NC), in the case of Prem Singh & Ors. v. United India Insurance Co. Ltd. reported in I (1992) CPJ 138 (NC) and in the case of Shakun Overseas Ltd v. National Insurance Co. Ltd. reported in I (1992) CPJ 144 (NC), the National Commission in all those cases over-ruled the decisions of the concerned State Commissions which declined to adjudicate the matters for the reason that the matters require oral and cross examination and dismissed the complaints. The National Commission held that said actions on the part of the State Commissions amount to unjust denial of the benefits of the C.P. Act to the aggrieved consumer and also held it is to be erroneous abdication of its jurisdiction by the Forums particularly is view that the Redressal Forums vested with powers of the summoning and enforcing attendence of witnesses and examining them on oath, the discovery and production of documents and other materials and issuing of Commissions for the examination of any witness etc. The National Commission distinguished the case of M/s. Special Machine (supra) and the subsequent case of M/s. Janata Machine Tools v. Oriental Insurance Co. Ltd. reported in I (1991) CPJ 234 in the line that the observations to be understood against special facts which were present in those cases and that it was nowhere lard down in those cases that whenever the examination and cross examination is involved the proper Forum for adjudication of the dispute is only Civil Court.

In the light of aforesaid discussion we hold that rejection of the claim of the appellant by the opposite party is arbitrary, wrongful and mischievous and the finding of C.D.F. is perverse and with close mind.

WE accordingly allow the appeal and set aside the judgment and order of the C.D.F. We direct the opposite party to pay the claim amount of Rs. 13,017/- with interest @18% per annum effective from April 1990 within 30 days from the date of communication of this order.

WE award the sum of Rs. 2,000/- towards cost of this proceeding and as compensation for harassment, mental agony and tortures suffered by the complainant/appellant. Appeal allowed with costs.