2019(5) ALL MR (JOURNAL) 20
Delhi High Court

JUSTICE PREM NARAIN

Beena Rajesh Raika Vs. Birla Sun Life Insurance Co. Ltd. & Ors.

First Appeal No.380 of 2014.

31st May 2019

Petitioner Counsel: Mr. NARAYAN FADNIS Ms. SHUBHADA PHALTANKAR
Respondent Counsel: Mr. ANIL TIWARI Ms. NAMRATA BHARTI
Act Name: Consumer Protection Act, 1986

Consumer Protection Act (1986), S.2 – Insurance claim – Repudiation, for suppression of existing ailment – Policy subscribed in year 2005 and deceased died of cancer in 2006 – Discharge card issued by hospital dt.18.3.2004, shows that even before obtaining insurance policy, deceased was suffering from cancer – Plea of typographical mistake was raised and affidavit of doctor produced to the effect that correct date of discharge was 18.3.2006 – However, doctor did not appear in person nor hospital record of relevant date was produced – Further plea raised that name of hospital appearing in discharge card was not existing on 18.3.2004 and it was approved only on 26.5.2004 – Possibility that hospital started using new name even before approval, not ruled out – No other material to dislodge date mentioned on discharge card – Repudiation of claim, justified. (Paras 10, 11, 13)

Section :
Section 2 Consumer Protection Act, 1986

Cases Cited :

JUDGEMENT

JUDGMENT :- This appeal has been filed by the appellant Beena Rajesh Raika against the order dated 17.4.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short ‘the State Commission’) passed in Complaint No.CC/06/02.

2. Brief facts of the case are that the appellant was complainant before the State Commission. Complainant’s husband had obtained insurance policy under a plan namely “Classic Life-II” from the opposite parties to cover risk of his life for a period of 65 years. The policy was issued on 9.8.2005. Complainant’s husband was detected with cancer and died on 6.6.2006. Complainant being nominee filed claim on 14.6.2006 with the opposite parties. Claim was repudiated on 6.11.2006 on the ground that the insured was suffering from cancer even before his application for obtaining insurance policy was filed and the insured suppressed this fact from the opposite parties.

3. The complainant filed a consumer complaint No.CC/06/02 before the State Commission. The complaint was resisted by the opposite parties by filing a common written statement. It was stated that the Deceased Life Assured (DLA) was suffering from cancer when the proposal form was filled. On the basis of the discharge card relating to DLA showing him admitted in the hospital from 13.3.2004 to 18.3.2004 for treatment of cancer and also on the basis of the certificate given by Dr. Ajay Mehata in respect of the same, it was stated that there was a suppression of material information when the proposal form was filled. Hence, the claim was repudiated. It was requested to dismiss the complaint on the ground of suppression of material information. The State Commission dismissed the complaint vide its order dated 17.04.2014. Hence the present appeal.

4. Heard the learned counsel for both the parties and perused the record. Learned counsel for the appellant stated that the discharge card was prepared by Dr. Ajay Mehata showing date of admission of deceased life assured as 13/03/2004 and his discharge on 18/03/2004. It is now made clear in his affidavit by Dr. Ajay Mehata that he subsequently corrected the said discharge card of his hospital showing date of admission as 13/03/2006 and date of discharge as 18/03/2006. The certificate issued by Dr. Ajay Mehata produced by the opposite parties is dated 22/08/2006. Dr. Ajay Mehata in that certificate has also given date of admission as 13/03/2004 and date of discharge as 18/03/2004.

5. Learned counsel for the appellant stated that the State Commission utterly failed to see and consider the affidavit sworn and filed by Dr. Ajay Mehta before the State Commission correcting the date of admission of patient and date of discharge of patient/insured.

6. Learned counsel for the appellant stated that the State Commission erroneously relied on just the one document (discharge card bearing incorrect dates due to typographical error at the doctor’s end) filed by the respondent but did not consider the documents filed by the appellant for showing medical and cancer treatment of the insured in chronological order from the first day i.e. in the month of February till the end of his life. It was further argued that the State Commission failed to consider that only one document filed by the respondent is of the year 2004 whereas all documents filed on record pertain to the year 2006.

7. It was further stated by the learned counsel that the insured till the policy was taken was not aware of any ailment and even the ailment was not in existence. There is a report placed on record of the panel of doctors of the Insurance Company itself and there is no suppression of facts by the insured.

8. Moreover, it was argued that the State Commission ought to have seen that, merely because Dr. Mehata had committed an error in issuing discharge card by mentioning the incorrect dates, the insured and/or nominee should not suffer, because he/complainant was not at fault.

9. On the other hand, learned counsel for the respondents/opposite parties stated that the discharge card and the certificate issued by Dr. Ajay Mehata clearly state that DLA was admitted in Central India Cancer Research Institute Nagpur from 13.03.2004 to 18.03.2004. The State Commission has considered the affidavit filed by Dr. Ajay Mehata, however, the State Commission has not relied on the affidavit on the basis of the fact that the hospital or Dr. Ajay Mehata did not file the medical record for the period from 13.3.2004 till 18.3.2004 and on other grounds it was argued by the learned counsel for the respondents that if the patient was admitted really from 13.3.2006 to 18.3.2006 instead of 13.3.2004 to 18.3.2004, the complainant may have taken the steps to get it rectified at the earliest during the pendency of the complaint. Dr. Ajay Mehata has filed an affidavit on 14.6.2007 for correction of dates given in the discharge card and the certificate issued to the Insurance Company. Clearly, this has been done to give benefit to the complainant and that is why actual medical records of the Central India Cancer Research Institute Nagpur were not filed. In fact, no doctor will make a mistake twice in issuing discharge card and then issuing the certificate to the Insurance Company.

10. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record. The claim of the complainant was rejected by the Insurance Company on the ground that after investigation it came to the notice of the Insurance Company that the insured was suffering from cancer and was getting treatment in Central India Cancer Research Institute Nagpur. Clearly, the complainant has not taken pro-active steps to get the correct discharge card issued by the hospital. In fact, when the discharge card was received by the life assured or the complainant and if it was not correct, the complainant should have taken steps to get it recertified as soon as possible. It is seen that during the currency of the complaint, the complainant has got an affidavit filed by Dr. Ajay Mehata of that hospital stating the dates of admission and discharge as 13.3.2006 and 18.3.2006 instead of 13.3.2004 and 18.3.2004. This affidavit has been filed on 14.6.2007. In fact the State Commission has critically examined the affidavit as well as other facts and has reached to the conclusion that actual dates on the discharge certificate need to be read as 13.3.2004 and 18.3.2004. The State Commission has observed as under:-
“14. It is seen that the discharge card was prepared by the Dr. Ajay Mehata showing date of admission of deceased life assured as 13/03/2004 and his discharge on 18/03/2004. It is not made clear in his affidavit by Dr. Ajay Mehata that he subsequently corrected the said discharge card of his hospital showing date of admission as 13/03/2006 and date of discharge as 18/03/2006. The copy of that discharge card was given to the O.P. Nos.1,2&3 by Dr. Ajay Mehata on 29/08/2006 as seen from the stamp appearing on it. The certificate issued by Dr. Ajay Mehata produced by the opposite parties is dated 22/08/2006. Dr. Ajay Mehata in that certificate has also given date of admission as 13/03/2004 and date of discharge as 18/03/2004. It is not the say of Dr. Ajay Mehata that the aforesaid discharge card and the certificate were issued by him on the same date. Therefore, it cannot be believed that due to mistake on two times while issuing both the documents, year as 2004 instead of 2006 was mentioned on both the said documents.
15. We also find that as Dr. Ajay Mehata himself filed his affidavit to support the case of the complainant, he ought to have filed the record of admission and discharge of his hospital for the period from 13/03/2004 to 18/03/2004 to show that the deceased life assured Rajesh Raika was not admitted in his hospital on 13/03/2004 and he was not treated in that hospital till 18/03/2004 as an indoor patient. Moreover, though this Commission issued summons to Dr. Ajay Mehata to produce the record for the year from 2004 to 2006, the record for the period 13/03/2004 to 18/03/2004 was not produced by him. The reason given by the representative of Dr. Ajay Mehata namely Dr. Suchitra Mehata on 12/06/2013 for non production of the said record is that their institute has been renovated. Her said statement has been recorded by this Commission under order dated 12/06/2013. In our view as the said reason in very vague it cannot be believed. Dr. Ajay Mehata in his certificate filed by the complainant along with written notes of argument stated that the Central India Cancer Research Institute was established in the month of Dec. 2005. However, no document is produced to support his said statement. On the contrary the record produced by Dr. Suchitra Mehata on behalf of Dr. Ajay Mehata shows that it is of Central India Cancer Research Institute Nagpur and it is for the period from 01/04/2004 to 14/04/2006. Thus the said record falsifies the statement of Dr. Ajay Mehata that his aforesaid institute was established in the month of Dec.-2005. Therefore, we hold that the information about record of admission and discharge of patient from 13/03/2004 to 18/03/2004 in the Central India Cancer Research Institute Nagpur has been intentionally suppressed by the complainant as well as by Dr. Ajay Mehata and therefore an adverse inference is drawn against them and consequently the affidavit of Dr. Ajay Mehata discussed above cannot be relied upon.”

11. Learned counsel for the appellant/complainant has not stated any special circumstances under which the record of the hospital for the period 13.3.2004 to 18.3.2004 could not be produced before the State Commission. As the amendment in the discharge card was required by the complainant, the complainant should have insured that the record is produced before the State Commission. As the State Commission also summoned Dr. Ajay Mehata along with record, however, some other doctor appeared along with some other record and that is why the State Commission could not verify the veracity of the affidavit of Dr. Ajay Mehata. Hence in the absence of proper record, the changes made in the discharge card and the certificate have not been accepted by the State Commission. Generally discharge card is issued when patient is discharged and it is unlikely that any mistake would be there in mentioning the dates of admission and discharge. If any changes are made later on, then the changes must correspond to the hospital records. In the present case, inspite of the State Commission issuing summons to Dr. Ajay Mehata of the hospital, the relevant record has not been filed, therefore, the State Commission has rightly disbelieved the affidavit of Dr. Ajay Mehata. Once the affidavit filed by Dr. Ajay Mehata has not been relied upon by the State Commission, there is no other ground before the complainant to prove that the DLA was not suffering from cancer prior to date of filing of the proposal form.

12. The learned counsel for the appellant/complainant has also raised an issue that Central India Cancer Research Institute, Nagpur was not existing on the dates of 13.3.2004 or 18.3.2004. To support his contention a letter dated 18.6.2014 of the Nagpur Municipal Corporation addressed to Dr.S.A.Mehata has been filed, wherein the following is mentioned:
“It is to inform that your registration No.110 has been registered wide certificate no.1490 dated 19-5-2004 Named “Dr. Mehata surgical nursing home & cancer detection centre” Shanker Nagar Nagpur, valid up to 31 march 2005. As per record found in certificate copy in book of numbering from 1401 to 1500 but it has been found cancelled and issued new certificate wide registration certificate No.1575 Dated 26.05.2004 in the new Name of “Central India Cancer Research Institute” Shanker Nagar Nagpur valid till 31.03.2005. This name change was done on your request letter dated 17.02.2004.
This Certificate is issued on our request letter Dated 17.06.2014.”

13. From the above, one thing is clear the application for change of earlier name to the Central India Cancer Research Institute was filed on 17.02.2004. This is quite likely that the changed name of the Institute was being used from this date, though the formal approval for the changed name was only w.e.f. 26.5.2004. First of all this letter was not produced before the State Commission and moreover even this letter does not clearly rule out that the discharge card or certificate can be issued mentioning the date 13.3.2004 or 18.3.2004 by the Central India Cancer Research Institute.

14. Based on the above discussion, I do not find any merit in the appeal and accordingly first appeal No.380 of 2014 is dismissed.

Appeal dismissed.