NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 360 OF 2017
(Against the Order dated 18/10/2016 in Complaint No. 01/2014 of the State Commission Punjab)
1. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
BAJAJ FINSERV BUILDING, A-WING, 2ND FLOOR, SURVEY NO. 208/B-1, OFF. NAGAR ROAD, VIMAN NAGAR,
PUNE
MAHARASHTRA
...........Appellant(s)
Versus 
1. SURINDER PAL SINGH
R/O. 2524, STREET NO. 5, JANTA NAGAR, GILL ROAD,
LUDHIANA
PUNJAB
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER

FOR THE APPELLANT :
MR. ANKIT CHATURVEDI, ADVOCATE
MR. ABHINAV GOSWAMI, ADVOCATE
FOR THE RESPONDENT :
MR. SUKANT VIKRAM, ADVOCATE.

Dated : 08 November 2023
ORDER

JUSTICE SUDIP AHLUWALIA, MEMBER

          The present Appeal under Section 19 of the Consumer Protection Act, 1986 has been filed by the Appellant/Insurance Company against the impugned Order dated 18.10.2016 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh in Consumer Complaint No. 01 of 2014 vide which, the Complaint filed by the Respondent/Complainant was allowed.

  1. Brief facts of the case as per the Complaint are that the Complainant was having a manufacturing Unit at Ludhiana dealing with farm equipment. He regularly visited other countries for business purposes. A Farm Progress Show i.e. Western Canadian Farm Progress show was organised in Regina, Saskatchewan, Canada from 13.06.2011 to 18.06.2011. Thirteen members of Indian Business Delegation were invited by the Canadian Trade Commission Service, including the Complainant.  It was mandatory for a person traveling abroad  to  obtain  travel  insurance  before departure  from the home country. The Complainant had obtained travel insurance from the Appellant by paying a premium of Rs. 2002/-, and he was issued Policy No. OG-12-1203-9910-00000296 on 31.05.2011. At the time of the issuance of the Policy, no one from the side of the Appellant met the Complainant and no terms and conditions were explained to him. The Insurance Policies of all the delegation members were supplied at a particular place after collecting premium from all the members of the delegation. During the visit, on 15.06.2011, the Complainant suffered chest pain and he was admitted at General Hospital Regina in the emergency ward. He was then given treatment for emergent Cardiac Catherization and was discharged on 28.06.2011. At the time of discharge, the Complainant was not given any bill and he was informed that the bills would be recovered from his cashless Insurance Policy, and so he was not required to make any payment. However, in March 2012, the Complainant received a bill of $43,940/- issued by Regina Hospital Canada with comments that the Hospital was not responsible for sending invoices to Insurance Companies and that the same was the responsibility of the Complainant. The Complainant then approached the Insurance Company for clearing the bill and he was assured that the bills would be cleared soon but there was no action on the part of the  Insurance Company.  The Complainant then received letters from OVAG International, vide which demands were raised to make immediate payment. The Complainant later received a repudiation letter dated 23.09.2013 at his Email which stated that the claim was repudiated as he was taking medications for ‘Hyperlipidaemia’ disorder for the past 15 years, and that he also had allergy for aspirin tablet. It was further stated that the Complainant was suffering from Hypertension as well for the past 5 years and this was pre-existing in nature which was not declared at the time of filing the Proposal Form. It is the case of the Complaint that the Insurance Company has wrongfully repudiated the claim. Aggrieved by the acts of the Insurance Policy, the Complainant filed a Complaint before the State Commission, Punjab, Chandigarh.   
  2. The State Commission vide its Order dated 18.10.2016 allowed the Complaint. The relevant extracts of the Order of the State Commission are set out as below –

    “13. For the reason recorded above, complaint filed by the complainant is accepted and OPs are directed to pay the amount of medical expenses incurred by, the complainant on his ailment in Canada within 45 days from the receipt of copy of this order. The OPs shall also pay compensation of Rs. 50,000/- to complainant for mental harassment and Rs. 15,000/- as costs of litigation.”

    4.   Aggrieved by the Order of the State Commission, the Appellant filed the present Appeal raising the following issues - 

    1. That the State Commission failed to appreciate the fact that the said Policy itself contained a categorical declaration by the Respondent that he was aware that the said Policy did not cover any pre-existing illnesses or conditions arising there from ;              b.   That the State Commission erred in doubting the veracity of the Proposal Form filed by the Appellant merely on the basis of some preconceived bias against the Appellant without getting into the question whether the document was actually signed by the Respondent. A perusal form of the Proposal Form which was placed on record of the State Commission shows that the same was duly signed by the Respondent;     c.   That the State Commission erred in not appreciating the settled proposition of Law that where, for proper adjudication of the dispute, extensive evidence was required to be recorded and dealt with, and the same could not have been done in summary proceedings, the State Commission should have directed the parties to carry out detailed evidence including cross examination of witnesses in order to ascertain the correct facts;    d.  That the State Commission erred in disregarding the findings of this Hon’ble Commission in the cases of “SMT. B. Jayamma v. Sr. Branch Manager, LIC, RP No. 201/2000”; “National Insurance Co. Ltd. v. Satya Pal Tuli, 2003 (3) CPR 33”; “Life Insurance Corporation of India v. Mansa Devi, 2003 (II) CPJ 135 (NC”); “Deccan Enterprises Pvt. Ltd. v. National Insurance Co. Ltd. (2002) 3 CPJ 68”; “Ferry Gold (India) Ltd. v. National Insurance Company Ltd., 2002 (1) CPR 82 (NC)”; “New India Assurance v. John Jernandes, (1996) 2 CPJ 85.”                                                                                                                                  5. Ld. Counsel for Appellant argued that the Policy schedule clearly states that the policy coverage is as per Policy terms and conditions. It is clear that the Respondent had met the Agent of the Appellant before or at the time of making payment and was informed of the terms and conditions of the said Policy. It was also the duty of the Respondent to inquire about the conditions of the Insurance Policy. The Appellant is protected under the legal maxim “caveat emptor” against the ignorant contention of the Respondent that he was unaware of the terms and conditions of the Policy; That State Commission grossly erred by stating that no evidence had been collected by the Appellant in India with respect to whether the Respondent suffered from pre-existing illnesses and had been admitted as an indoor patient or an OPD patient prior to his having obtained the Policy. The Hospital records categorically state that the Respondent had pre-existing medical conditions and had suffered similar chest pain a year ago. The discharge summary also mentioned that the Respondent had a past medical history of Hypertension and Dyslipidaemia; That the State Commission ought to have referred the dispute to a Civil Court for proper appreciation of the evidence in view of the complex questions of fact the present case has posed. A perusal of the impugned Order would show that in the view of the State Commission itself, the instant dispute required extensive recording of evidence. The State Commission ought to have relied upon Ferry Gold (India) Ltd. (supra), Deccan Enterprises Pvt. Ltd. (supra), John Jernandes (supra); That the State Commission should have accepted the medical documents received from the said Hospital which was crucial for adjudication.             6.  Ld. Counsel for Respondent argued that the ground on which the Appellant has rejected the Respondent’s claim is baseless, misconceived and arbitrary. There is no proof that the Respondent was suffering from Hypertension for past 5 years or ‘Hyperlipidemia/ Dyslipidemia’ for the past 15 years. No evidence has been led by the Appellant to show that the Respondent was taking medications for the same. This is fatal to the Appeal as the burden of proving that the Respondent was suffering from these pre-existing diseases is on Appellant and it has not discharged the same. The Appellant solely relies on the Discharge Summary and the Angioplasty report from the Canadian Hospital but no witness has been examined to verify the said records and on what basis has it been recorded that Respondent had a history of these diseases; That there was no Proposal Form taken from the Respondent by Appellant before handing over the Insurance Policy. Undisputedly, the Appellant has not filed any Proposal Form in these proceedings. In fact, the Respondent has filed Affidavits of co-delegates in evidence, who categorically deposed that no Proposal Form was obtained from any of the delegates while selling the Insurance Policies. Thus, even for arguments’ sake if it is assumed that the Respondent was suffering from pre-existing disease, there was no occasion or requirement for the Respondent to disclose any disease; That the Appellant has not been able to prove that the Respondent was aware of any pre-existing disease and no medical record has been filed in this regard; That it is well settled law that Hypertension does not have sole nexus to Cardiac Catherization and other Coronary Artery Diseases. Thus, to reject the Insurance claim merely on this basis is grossly illegal. No medical literature has been produced by Appellant to show that Hypertension is the sole reason for coronary diseases. The Ld. Counsel for Respondent cited the cases of Canara Bank v. United India Insurance Company Limited, (2020) 3 SCC 455; Manmohan Nanda v. United India Assurance Company Ltd. & Anr. (2022) 4 SCC 582; Oswal Plastics Industries v. Manager, Legal Department, NAICO Ltd., 2023 SCC OnLine 43 and Ratan Chakraborty v. Life Insurance Corporation of India & Ors., 2022 SCC Online Cal 519 in support of his arguments.    7.   This Commission has heard both the Ld. Counsel of Appellant and Respondent, and perused the material available on record.                    8.      The Ld. State Commission had drawn adverse inference against the Insurance Company on account of its failure/reluctance to produce the actual Proposal Form in respect of which it was the specific case of the Complainant/Respondent, that he had never signed up on any such Form relied upon by the Insurance Company in which he had allegedly suppressed any material facts pertaining to his health prior to the Insurance.  The following relevant extracts from the impugned Order passed by the Ld. State Commission would go to indicate this inference-          “8. We specifically note this point that proposal form is always in the possession of the Insurance Company, but Insurance Company was hesitating in producing the proposal form. The Complainant straight forward applied to the Forum for a direction to OPs to place on record the alleged proposal form. The alleged proposal form was produced by OPs only pursuant to order in this regard on an application of the complainant. Inference can be drawn that this proposal form was not filled in by the complainant and due to that reason, OPs tried to withhold as long as possible from the Forum.”                 Again, the Ld. State Commission further went on to note as under-                 “9. The complainant was fit during the currency period of the policy contained in Ex.OP-1. The OPs have not placed on record the proposal form in this case. The complainant applied for production of proposal form by the OPs because complainant in his pleadings and evidence stated that he never filled any proposal form nor concealed any material fact with regard to any pre-existing disease. When the OP filed on record, the proposal form pursuant to order passed in this regard by the Forum, then complainant also moved an application for examination of the expert witness because OPs wanted to wriggle out of their contractual liability in this case on that document.”                      9.      In view of the aforesaid observations of the Ld. State Commission, this Commission in its Order passed on 12.7.2023 specifically noted  that –   “2. The moot point to be considered in this case is whether there was any willful suppression on the part of the Respondent/Complainant regarding his pre-existing medical condition in filling up his alleged proposal form prior to the Travel Insurance.    3. While the case of the Complainant all along was that he had never signed any proposal form, a copy of the same was apparently placed before the State Commission in the form of Exhibit – R6, but the Complainant disputed his signature upon the same.     4. From its side, the Appellant has not even annexed a copy of the said document with this Appeal.      5. It may do so positively before the next date of hearing and also produce the original Proposal Form in its totality, photocopies of two pages of which are shown to the Commission by the Ld. Counsel of the Respondent/Complainant. The document in question is seen and returned to Ld. Counsel. But a glance over the same reveals that the material Columns regarding to the medical history of the proposal are virtually left blank. If that be actually so, both sides shall also come prepared about their respective liabilities in a case where a proposal for insurance is actually accepted without filling in any answers whatsoever to the various Columns pertaining to the Medical questionnaire.”                                10.    But on the adjourned date (18.10.2023) again the Appellant failed to produce the original Proposal Form and it was submitted by its Ld. Counsel that the same was not available with the Appellant/Insurance Company, since its Authorised Representative who was assisting the Company at the relevant time is no longer associated with the Appellant. Ex facie, this submission would appear to be untenable and not worthy of being relied upon since any given Proposal Form on the basis of which the Insurance Policy is issued is in the normal course expected to be retained in the custody of the Insurance Company itself, and not by particular individual temporarily assisting the Company at any given time.              11.    To that extent, this Commission finds no impropriety in the view taken by the Ld. State Commission of having drawn an adverse inference against the Appellant/Insurance Company for having failed to produce the Proposal Form in the face of specific denial of the same having been signed by the Complainant-Insured, and his challenge to have the authenticity of his purported signatures to be examined by a handwriting Expert to know the truth.  It is also the contention of the Respondent/Complainant that even in the disputed first page of the Proposal Form (which in any case had not been filed by the Appellant but was placed before the State Commission as Exh. R6), there was no question of any concealment on the part of the alleged Proposer since no questions pertaining to any specific disease or any material particulars were contained in the relevant column, and actually all the concerned columns were found to have been only left ‘blank’ without any endorsement of either “Yes or No”, or “Not applicable”.  In this regard, reliance has been placed by the Ld. Counsel for the Respondent/Complainant upon the decision of the Hon’ble Supreme Court in “Manmohan Nanda Vs. United India Assurance Company Limited & Anr., (2022 4 SCC 582”; in which in very similar circumstances where the questions in the relevant columns pertaining to medical condition of the insured at the time of his submitting the proposal were ambiguous and non-specific, and the columns were left blank, it was held by the Hon’ble Apex Court that in such a situation it was upon the Insurer to put on enquiry if it was not satisfied with the response of the Proposer to the concerned questions.  The relevant extracts from the aforesaid decision of Hon’ble Apex Court are set out as below -      “14. It was next contended that the proposal form was worded in such a manner that there was no specific query which could have led to the appellant disclosing that he was suffering from hyperlipidaemia. This argument was made as an alternative submission on the assumption that the appellant had in fact knowledge that he was suffering from hyperlipidaemia at the time of filling up of proposal form seeking insurance policy.          15. It was further contended that the proposal form and the insurance policy did not define the terms “pre-existing disease”, “pre-existing ailment”, “pre-existing condition”, “disease” or “illness”. That Query 2 of Part 2 dealing with “medical history” in the proposal form, namely, “Have you ever suffered from any illness or disease up to the date of making this proposal”, was too vague and the appellant left he column blank. Failure to fill in all the queries in the proposal form cannot be termed as suppression or misdeclaration vide Canara Bank v. United Insurance Co. Ltd.       16. Further, Question 5 which read, “Have you ever suffered from any illness or disease or had any accident prior to the first day of insurance” is also overarching as no person can answer such a question in the negative. Every person to who a mediclaim policy is offered, would have, at some point of time, suffered from some disease or illness but for the same to be considered as a pre-existing disease, ailment, condition or illness on which ground a claim could be repudiated, there is need for a specific definition to be incorporated in the policy. This is because every disease or illness cannot be considered as a pre-existing disease or condition so as to exclude the benefit of the policy to a policy-holder. According to the learned Senior Counsel for the appellant, the nature of a disease or illness which would exclude a policy-holder or an insured from the benefits of the said policy must be clearly mentioned in the policy itself. The same cannot be vague or non-specific so as to enable the insurer to interpret the policy to its benefit whenever a claim is made under the mediclaim policy.”                         12.    After having thus noted the facts, the Hon’ble Supreme Court then went on to lay down the principles to be followed in such cases which are extracted from the aforesaid judgment as follows –    “43. The basic rules to be observed in making a proposal for insurance may be summarised as follows:        43.1. A fair and reasonable construction must be put upon the language of the question which is asked, and the answer given will be similarly construed. This involves close attention to the language used in either case, as the question may be so framed that an unqualified answer amounts to an assertion by the proposer that he has knowledge of the facts and that the knowledge is being imparted. However, provided these canons are observed, accuracy in all matters of substance will suffice and misstatements or omissions in trifling and insubstantial respects will be ignored.        43.2. Carelessness is no excuse, unless the error is so obvious that no one could be regarded as misled. If the proposer puts “no” when he means “yes” it will not avail him to say it was a slip of the pen; the answer is plainly the reverse of the truth. 43.3. An answer which is literally accurate, so far as it extends, will not suffice if it is misleading by reason of what is not stated. It may be quite accurate for the proposer to state that he has made a claim previously on an insurance company, but the answer is untrue if in fact he has made more than one.      43.4. Where the space for an answer is left blank, leaving the question unanswered, the reasonable inference may be that there is nothing to enter as an answer. If in fact there is something to enter as an answer, the insurers are misled in that their reasonable inference is belied. It will then be a matter of construction whether this is a mere non-disclosure, the proposer having made no positive statement at all, or whether in substance he is to be regarded as having asserted that there is in fact nothing to state.           43.5. Where an answer is unsatisfactory, as being on the fact of it incomplete or inconsistent the insurers may, as reasonable men, be regarded as put an inquiry, so that if they issue a policy without any further enquiry they are assumed to have waived any further information. However, having regard to the inference mentioned in Head 43.4 above, the mere leaving of a blank space will not normally be regarded as sufficient to put the insurers on inquiry.”                                    The Hon’ble Apex Court further went on to observe –              “55.4. If any query or column in a proposal form is left blank then the Insurance Company must ask the insured to fill up. If in spite of any column being left blank, the Insurance Company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or non-disclosure of a material fact, and seek to repudiate the claim.”(Emphasis added)                13.    Consequently, the Appeal was finally allowed by the Hon’ble Supreme Court against the Insurance Company which was directed to indemnify the Complainant/Appellant for the expenses incurred by him towards medical treatment covered under the Policy.   The aforesaid decision of the Hon’ble Apex Court is fully applicable to the facts and circumstances of the present case in which not only the relevant columns pertaining to medical condition of the Insured had been left blank where the questions themselves were neither specific nor unambiguous enough to make any person of ordinary prudence to answer the same easily, and once having been left blank, no further steps were taken on behalf of the Insurer to seek specific answers to the same or to put itself on enquiry as would have been required in terms of the observation of the Hon’ble Apex Court in Para 43.5 of its aforesaid judgment quoted above.  This is of course an academic observation of this Commission assuming the Proposal Form as tendered before the Ld. State Commission was actually found to have been left blank in response to the questions pertaining to the medical condition of the Insured, and cannot in any way mean to imply that the Complainant in this case had actually signed on any such Proposal Form, which was never produced in original by the Insurance Company either before the Ld. State Commission, or even before this Commission in spite of specific directions.               14.    For the aforesaid reasons, this Commission finds no grounds to interfere with the well-reasoned decision of the Ld. State Commission.                   15.    The First Appeal is, therefore, dismissed.  Parties to bear their own costs. 16.    Pending application(s), if any, also stand disposed off as having been rendered infructuous. 
 
......................................J
SUDIP AHLUWALIA
PRESIDING MEMBER