V.B. Gupta ORDER
V.B. Gupta, J. (Presiding Member)
1. In this revision petition filed by Petitioner/Opposite Party there is challenge to impugned order dated 24.3.2008, passed by H.P. State Consumer Disputes Redressal Commission, Shimla (for short, 'State Commission') vide which First Appeal No. 365 of 2007 filed by the petitioner was dismissed.
2. Respondent/Complainant got himself insured with the Petitioner Company under 'Videsh Yatra Mitra Policy' dated 25.05.2009 before proceeding on foreign tour of 28 days for U.S.A. U.K. & Europe and paid premium of Rs. 1,754/-. It stated that respondent developed uneasiness suddenly during USA tour and consulted the doctor. Respondent had suffered sudden blockage of veins and had to be operated for the disease and incurred an amount of 2,00,000/- on operation and paid 65,000/- on the spot to Doctor Sen Gabriel Vally Medial Centre, CHW-438. Respondent was again advised for post operative visits, by Dr. Gleen-H Weissman, M.D. who conducted the surgery on 06.07.2009 and advised him not to fly. Petitioner did not admit the claim of the respondent, for release of sum of 2,00,000/-. Hence, consumer complaint was filed before the District Consumer Disputes Redressal Forum, Nahan, H.P. (for short, 'District Forum').
3. Petitioner in its written statement denied, that respondent suddenly developed problem of some easiness. In fact, respondent concealed the ailment and by pleading false facts obtained the policy cover. In view of the concealment of the ailment, respondent is not entitled to take benefit of the policy. Moreover, there was no such disease for which immediate operation was required.
4. District Forum vide order dated 09.04.2007, allowed the complaint and passed following directions;
"The OP-Company to indemnify the complainant to the extent of 2,00,000/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 05.11.2003 till actual payment is made. The litigation cost is quantified at 1,500/-. These payments shall be made to the complainant by the OP-Company within a period of forty five days from the date of receipt of copy of this order. With these observations, the present complaint stands disposed of."
5. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the same with cost of 5,000/-.
6. I have heard the learned counsel for parties and gone through the record.
7. It is submitted by learned counsel for the petitioner, that respondent has concealed the material facts and has given wrong information at the time of obtaining the policy cover. Under these circumstances, respondent is not entitled for any insurance claim.
8. On the other hand it is submitted by learned counsel for the respondent, that there has been no concealment of material facts in this case. On the other hand, respondent all of a sudden developed problem of uneasiness and due to that, he had to take treatment and had undergone surgery. Since, there is no concealment, petitioner wrongly repudiated the insurance claim.
9. District Forum in its order held;
"4. The complainant, admittedly, purchased a Videsh Yatra Mitra Policy bearing No. 613895 from the OP-Company on 25.5.2009 and paid a premium of Rs. 1,754/-. The complainant fell ill during the subsistence of the insurance policy. The OP-Company has repudiated the claim of the complainant on the ground that the complainant has not complied with the terms and conditions of the policy.
5. Annexure R-2 is copy of the proposal form submitted by the complainant before obtaining the Videsh Yatra Mitra Policy. On appraisal of the aforesaid from, it is evident that the detail in clause-B has to be filled by a Doctor to find out the health of the insured which may be a circumstance to strengthen the case of the OP-Company to justify the purpose of visit. Such columns of Annexure R-2 are blank and do not bear the signature of any Cardiologist. This goes to show that the OP-Company has failed to bring on record the material to warrant their contention that the complainant just availed the medical facility during foreign trip. The complainant has sworn an affidavit that on account of sudden illness he had to be got himself checked up and blockage had to be operated, which fact has to be believed in view of Annexure-B, the record of medical treatment of the complainant which also mention the name of Dr. Weissman and also includes the reference about follow up. The policy conditions enclosed with Annexure-2 are silent about the forwarding of the claim through any agency for investigation which counters the arguments of the OP-Company that the claim has not been validly filed. Therefore, there is no reason to decline the complaint his legitimate dues."
10. The State Commission, while dismissing petitioner's appeal observed;
"10. Proposal form placed on record by the appellant which is at pages 33 to 35 of the complaint file, clearly suggests that for reasons best known to the appellant it did not get it completed and duly filled in this form by a doctor, MD (Cardiologist only). Why this was not done again learned counsel for the appellant Insurance Company had no answer. Therefore, even if it be accepted what was argued by Mr. Sharma is correct, fact remains that the respondent shall be not presumed to be suffering from any disease as was urged by Mr. Sharma and even if that was the situation in such a case the right if any was waived by it, (i.e. the appellant), in the absence of having got the respondent medically examined when the proposal form was filed with it. It is also not the case of the appellant that it had not issued the policy after receipt of the proposal form and premium. Nor the same can be controverted on behalf of the appellant.
11. In the peculiar facts and circumstances of this case we feel that the respondent has been made to suffer by non settlement of his claim for the last about 9 years as it pertains to the year 1999. Despite long correspondence when nothing came out, he was forced to approach the fora for redressed of his grievance. This is a clear cut case of causing mental harassment, inconvenience and putting him to unnecessary expense. Thus he is entitled to be compensated on this count beside punitive damages and costs of litigation in this fora. At the same time appellant is liable to pay punitive damages to the respondent.
12. Faced with this situation Mr. Sharma submitted that there was no laxity and or remissness on the part of his client. This argument is being noted simply to be rejected in the light of the briefly noted facts hereinabove and also keeping in view the documents which are thereon the record of the complaint file. Further, in our opinion whether the respondent has undergone surgery etc. in USA, and if so, what was the expense incurred by him could be got verified by the appellant, the aforesaid Mercury Insurance.
13. Accepting the premium and then issuing policy without medical examination as required the proposal form, completely nails the case set out by the appellant before us. We are further of the view that the respondent is entitled to compensation for harassment and punitive damages on the facts set out by the appellant on analogy of Order XLI Rule 33 CPC Because appellant by its acts caused undue harassment to the respondent without any justifiable ground.
14. No other point is urged.
In view of the aforesaid discussions, while upholding the order of the District Forum Shimla, in Complaint No. 157/2003, dated 09.04.2007, appellant is further held liable to pay Rs. 5,000/- as costs in this appeal. In addition to this appellant is also liable to pay to the respondent Rs. 50,000/- towards mental harassment by not settling his claim, plus Rs. 10,000/- towards punitive damages. Order of the District Forum below stands modified to this extent. Ordered accordingly."
11. Before issuing the policy in question to the respondent, he had to undergo medical examination as directed by the Petitioner's Company. Thus, respondent filled up the proposal form. Admittedly, the proposal form was also to be filled by the Doctor, i.e. M.D. (Cardiologist) only. It is an admitted fact, that the doctor who examined the respondent, had not filled the proposal form at all. Thus, it is the petitioner company which is gross negligent in this case, since its doctor did not fill the proposal form.
12. It is also an admitted fact, that policy in question was valid w.e.f. 25.5.1999. The respondent had fallen sick on 24.6.1999 while in USA. Thereafter, he had to undergo surgery. Therefore, it cannot be said, that at the time of taking the insurance policy respondent was suffering from any ailment.
13. Since, medical examination of respondent was not conducted by the petitioner company, which was the most important part while giving an insurance policy on medical terms, therefore there is a fault on the part of the petitioner company. Thus, petitioner cannot rely on its contention, that respondent had concealed the material facts regarding his health.
14. Both the Fora below have rightly held, that Petitioner's Doctor has not signed the proposal form duly filled up by the respondent. As such, there is no concealment of any ailment in this case.
15. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. The Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. MANU/SC/0409/2011 : 2011 (3) Scale 654 has observed;
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
17. In view of the concurrent finding of the facts given by both the Fora below, it is held that there is no infirmity or illegality in the impugned order. The present revision petition thus having no legal merit, is hereby dismissed.
18. Original record of Fora below be sent back.
19. No order as to cost.
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