Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 50 (ORI)

Sr. Divisional Manager v. Nabakishore Patra

2013-02-19

R.N.BISWAL, SMARITA MOHANTY

body2013
JUDGMENT R.N. BISWAL, J. This appeal is directed against the order dated 07.12.1998 passed by the learned District Consumer Disputes Redressal Forum, Khurda at Bhubaneswar (hereinafter referred to as District Forum) in C.D. Case No. 252 of 1994 directing the appellant to pay the respondents a sum of Rs.30,000/- towards full and final settlement of the claim along with Rs.500/- towards litigation expenses. The respondents were complainants and the appellant was opposite party before the District Forum. The fact giving rise to filing of this appeal in short is that the complainants, who are husband and wife took Hospitalization and Domiciliary Hospitalization Benefit Policy bearing No. 4852090100919 from the opposite party covering the period 30.7.1990 to 29.7.1991 on payment of premium of Rs.2,700/-. On 3.9.1990, since complainant NO.2 suffered pain on her chest, on the next date, she went to Dr. Satyabadi Rath, M.B.B.S. for treatment, who on examining her prescribed some medicines and advised her to undergo treatment at Apollo Hospital Hyderabad. Before going to Hyderabad, she went to Dr. J.P. Das, Cardiologist for his advice, who also advised her to undergo treatment at Apollo Hospital, Hyderabad. Accordingly, she went to Apollo Hospital and spent a sum of Rs.10,542.65 paise towards consultation, diagnosis, investigation etc. She was further advised to undergo heart operation and accordingly, she underwent heart operation at Apollo Hospital and spent a huge amount. First, she filed C.D. Case No. 121 of 1991 before the District Forum, Bhubaneswar claiming the expenditure in respect of her first phase of treatment, which was dismissed for default. So, again she filed the present C.D. Case claiming a sum of Rs.1,33,220.55 paise. Opposite party, the Insurance Company in their written version contended that the C.D. Case was barred by limitation. It is their further case that complainant NO.2 was suffering from Chronic Rheumatic Heart Disease prior to taking the policy by deliberately suppressing the material fact and as such, the C.D. Case should be dismissed. After assessing the evidence on record, the learned District Forum directed the opposite party to pay a sum of Rs.30,000/- towards full and final settlement of the claim along with Rs.500/- towards litigation expenses to complainant NO.2 as stated earlier. After assessing the evidence on record, the learned District Forum directed the opposite party to pay a sum of Rs.30,000/- towards full and final settlement of the claim along with Rs.500/- towards litigation expenses to complainant NO.2 as stated earlier. Being aggrieved with the said order, the opposite party-Insurance Company have preferred the present appeal: At the outset, learned counsel appearing for the appellant submits that Clause 13 of the Insurance Policy envisages that if the Insurance Company disclaims liability to the Insured Person for any claim and the latter does not notify the Company within 12 calendar months from the date of receipt of the notice of repudiation stating that he does not accept the disclaim and intends to recover his claim from the company then, the claim shall be deemed to have been abandoned and shall not thereafter be recoverable. In the present case, the claim of respondent NO.2 having been repudiated on 21.2.1.991, she could have noticed the Company that she did not accept the disclaim and intend to recover her claim from the Company within 12 calendar months thereafter. Since she has not done so, she is debarred from filing the C.D. Case. At this stage, it would be appropriate to quote Section 28 of the Indian Contract Act, which reads as follows: "Agreements in restraint of legal proceedings void: Every agreement,- (a) by which any party thereto is restricted absolutely from enforcing his rights under on in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or (b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights is void to that –extent." In view of this provision, Clause 13 of the Insurance Policy is void and the insured has right to file the C.D. Case. Learned counsel appearing for the appellant further submits that just 35 days after taking the policy, respondent NO.2 suffered from heart ailment. It is found from the report of the Cardiologist that she was suffering from Chronic Rheumatic Heart Disease. This fact having been suppressed by respondent NO.2 while filing in the proposal form, the Insurance Company rightly repudiated her claim. It is found from the report of the Cardiologist that she was suffering from Chronic Rheumatic Heart Disease. This fact having been suppressed by respondent NO.2 while filing in the proposal form, the Insurance Company rightly repudiated her claim. Learned counsel for the respondents contends that there is nothing to show that respondent NO.2 was aware of the fact that she was suffering from Chronic Rheumatic Heart Disease by the time, she filled in the proposal form. So, even if it is there in the medical report that she was suffering from Chronic Rheumatic Heart Disease still then since she was not aware of this fact during the relevant time, the repudiation of the claim was illegal. The burden lies with the appellant to prove that respondent NO.2 was suffering from Chronic 'Rheumatic Heart Disease and she was undergoing treatment for the same prior to filling in the proposal form and she deliberately suppressed the same in support of his submission, he relies on the decision Tarlok Chand Khanna v. United India Insurance Company Limited I (2012) CPJ 84 (NC) where the Hon'ble National Commission held as follows: "This onus to prove that the petitioner was suffering from a pre-existing disease as per settled law is on the respondent. We note that the respondent has not produced any credible documentary evidence/expert medical opinion in support of its case. The medical opinion dated 16.3.2003 of Dr. Neel Kanth Sharma cited in support is of little evidentiary value because he is not a medical expert being an M/S.B.S. doctor and on the panel of physicians of the Respondent/Insurance Company. His letter is also not backed by any affidavit nor was he ever cross-examined. Further, it is not disputed that the insuree had been taking mediclaim policy right from 1996 and nowhere has it been recorded that she had any medical condition including the problem of the knees, by the Respondent's doctor who examined her. Thus, there is no record produced by the Respondent to indicate that any such disease existed and that it was therefore, pre-existing. Thus, there is no record produced by the Respondent to indicate that any such disease existed and that it was therefore, pre-existing. Further, it is settled law that the onus to prove that the insuree had a pre-existing disease was on the Respondent which as stated above, it has failed to do." In the case of National Insurance Company Limited v. Bipul Kundu II (2005) CPJ 12 NC, the Hon'ble National Commission held as follows: "It is settled law that Insurance Company cannot avoid consequences of insurance contract by simply showing inaccuracy or falsity of the statement made by a policy holder. Burden is cast on the insurer to show that statement on a fact had been suppressed which was material for the policy holder to disclose. It is further to be proved by the insurer that statement was fraudulently made by the policy holder with the knowledge of falsity of that statement or that the suppression was of material fact which had not been disclosed. Origin of aforesaid disease is attributed to rheumatic fever. A layman does not know that this rheumatic fever is? In this backdrop, it is difficult to hold that Namita Kundu knew about her suffering from said fever/disease and she suppressed that fact at the time of purchase of policy on 6.2.1996." So, in view of the above decision, even if it is held that respondent NO.2 was suffering from Chronic Rheumatic Heart Disease, it cannot be presumed that she was aware of such disease by the time of filling in the proposal form in absence of any positive evidence to that effect. So, the contention of the learned counsel appearing for the appellant that the Insurance Company rightly repudiated the claim of respondent NO.2 as she suppressed the material fact regarding her health condition can not be accepted. At last, learned counsel for the appellant submits that the learned District Forum should have dismissed the C.D. Case since it was barred by time. According to him, the claim of the insured was repudiated on 21.2.1991, so the C.D. Case ought to have been filed on or before 20.2.1993, but it having been filed on 3.10.1994, it was barred by limitation. As per Section 24-A(1) of the Consumer Protection Act, 1986 a complaint is to be filed within 2 years from the date on which the cause of action has arisen. As per Section 24-A(1) of the Consumer Protection Act, 1986 a complaint is to be filed within 2 years from the date on which the cause of action has arisen. But as envisaged under Sub-section (2) it cannot be filed after the period specified in Sub-section (1), if the complainant satisfies the District Forum that he had sufficient cause for not filing the complaint within such period. In the present case, C.D. Case No. 121 of 1991 was filed in respect of the first phase of expenditure incurred by the insured towards consultation, diagnosis, investigation etc. made at Apollo Hospital. Of course, it was dismissed for default. Then the complainant filed the second complaint on 3.10.1994, out of which the present appeal arose and the delay was rightly condoned by the learned District Forum as there was sufficient cause to condone the same. Respondent NO.2 has spent more than Rs.1,00,000/- but the learned District Forum has allowed only Rs.30,000/- besides litigation expenses of Rs.500/- only, which cannot be said as exorbitant. Under such circumstances, the appeal being devoid of merit stands dismissed. The appellant is directed to pay the aforesaid amount to the respondent within two months hence, failing which the same shall carry interest at the rate of 12% per annum till payment. Records received from the District Forum, Khurda at Bhubaneswar be sent back forthwith. Appeal dismissed.