Allowed

Tata Aig General Insurance Company v. Anil N.

Kerala HC11 Nov 2022WP(C)/30703/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by Tata AIG General Insurance Company Ltd., setting aside an order of the Kerala State Human Rights Commission that directed the insurer to reconsider a denied health insurance claim due to the petitioner's failure to disclose pre-existing conditions in the policy enrollment form.

What did the court decide?

Exhibit P2 order dated 22.07.2022 passed by the Kerala State Human Rights Commission is set aside.

Tata Aig General Insurance Company Vs Anil N. — Insurance | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 11TH DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944
WP(C) NO. 30703 OF 2022

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PETITIONER:

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TATA AIG GENERAL INSURANCE CO. LTD.,
1ST FLOOR, OPP. YMCA, KANNUR ROAD,
KOZHIKODE, PIN-673 001, REPRESENTED BY
ITS CHIEF MANAGER, GRAND BAY,
COCHIN CORPORATION, KATTAKKARA JUNCTION,
KALOOR, KOCHI, KERALA, PIN - 682 017.

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BY ADVS.
GEORGE CHERIAN (SR.)
LATHA SUSAN CHERIAN
GEORGE A.CHERIAN

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RESPONDENTS:

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1ANIL N.,
CHITHRALAYAM, NEAR SBI OFFICER'S COLONY,
KAVU NAGAR, CHEVAYUR P.O, KOZHIKODE-683 017.

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2KERALA STATE HUMAN RIGHTS COMMISSION,
OFFICE OF THE HUMAN RIGHTS COMMISSION,
THIRUVANANATHAPURAM-695 033,
REPRESENTED BY ITS SECRETARY.

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BY SRI ANIL N. (PARTY)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.30703 of 2022

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JUDGMENT

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Dated this the 11^th day of November, 2022

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S.Manikumar, C.J.

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Instant writ petition is filed by the petitioner for setting aside Exhibit P2 order dated 22.07.2022 passed by the Kerala State Human Rights Commission in H.R.M.P.No.4671/11/8/ 2022/KKD, complaint filed by respondent No.1 herein.

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Considering the averments and the material on record, in H.R.M.P.No.4671/11/8/2022/KKD, the Kerala State Human Rights Commission has passed the following order:

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“Case is registered on the basis of a petition filed by Sri.Anil.N. According to the petitioner his mother, Smt.Chithrangi A, who subscribed to a health insurance policy of M/s.Tata AIG General Insurance Company Ltd., through Canara Bank, has been renewing the policy ever since availing the same on 17.02.2018. The policy is having a 'sum insured' of Rs.5 lakh. When the policy holder, Smt. Chithrangi was admitted to Baby Memorial Hospital, Kozhikode on 23.06.2022 following liver ailment, an application was preferred for cashless claim before the insurance company and treatment was provided from the hospital accordingly. The policy holder obtained SMS from the insurance company on 27.06.2022 to the effect that "cashless authorization request is under process" and later

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W.P.(C)No.30703 of 2022

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on 04.07.2022 another message was received stating that "cashless authorization request rejected". Following this the hospital insisted for payment in cash and that Rs.5 lakh was remitted in installments. Meanwhile the patient was shifted to ICU.

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Aggrieved by the unexpected move on the part of the insurance company in denying the insurance benefit, which according to petitioner, had debilitated the family both mentally and financially, the petitioner pleaded before the Commission to intervene in the case to get the claim sanctioned as the patient needed continuous treatment.

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The Commission has gone through the petition and convinced that violations of human rights have taken place on the part of the insurance company in denying the cashless claim of the petitioner/his mother. Accordingly the Commission directs the Manager, Tata AIG General Insurance Company Ltd, I floor, Opp.YMCA, Kannur Road, Kozhikode 673001 (email – manager.customercare@tataaig. com) to reconsider the decision to decline the claim and file report in this regard within 15 days.

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The case stands posted to sitting of the Commission in the month of August 2022 at Kozhikode.”

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Being aggrieved, instant writ petition is filed, on the

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grounds inter alia that being a contractual matter, the Kerala State Human Rights Commission has no jurisdiction to entertain the petition.

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W.P.(C)No.30703 of 2022

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Though the 1^st respondent was served and his name shown in the cause list, there was no appearance on his behalf. Thus on 01.11.2022, we recorded thus:

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“As per the Registry’s note dated 06.10.2022, respondent No.1 was served. Hence, on 07.10.2022, we passed the following order:

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“Service is complete on the 1^st respondent. Registry is directed to verify whether any vakalath is filed on behalf of the 1^st respondent. If so, show the name of the learned counsel, and if not, show the name of the 1^st respondent in the cause list.”

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As per the Registry’s note dated 10.10.2022, vakalath for respondent No.1 was not received. Hence, name of respondent No.1 was shown in the cause list.

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Again, the Registry, on 27.10.2022, has recorded

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thus:

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“Vakalath for R1 not received. Verified on filing section.”

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Thus, despite several opportunities given, respondent No.1 has not entered appearance through counsel or in person, though his name is shown in the cause list. In the above said circumstances, we are constrained to proceed with the matter and pass orders.

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Ms.K.S.Santhi, learned counsel for the petitioner, made submissions on the basis of the material on record and sought for interference with Exhibit P2 order of the Kerala State Human Rights Commission dated 22.07.2022.

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Post for orders.”

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W.P.(C)No.30703 of 2022

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Today also, there is no representation. Hence, this

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court is constrained to decide the writ petition on its merits.

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Grounds, inter alia, raised by the petitioner, assailing

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the correctness of the order dated 22.07.2022 are as under:

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a. It is also submitted that there is no allegation of any human rights violation in Ext.P1 complaint. Moreover, the Hon'ble Commission has no jurisdiction to decide on a complaint relating to contract of insurance where parties are bound by the terms of policy.

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b. The rejection of request for cashless benefit or the rejection of a claim under a policy of insurance does not involve human rights violation. The rights and liabilities under a contract of insurance are to be decided on the terms and conditions of the insurance.

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c. Any policy of insurance is a commercial contract and the dispute arising out of a contract can be decided only relying on the terms and conditions of the contract.

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d. There are statutory mechanisms to deal with rejection of a claim under a policy. Insurance Ombudsman, Consumer Commission, Permanent Lok Adalat are constituted for speedy disposal of complaints relating to insurance and other services. In any view of the matter, Human Rights Commission has no jurisdiction to entertain the

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W.P.(C)No.30703 of 2022

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complaint touching a policy of Insurance. Hence Ext.P2 order is without Jurisdiction and is liable to be set aside.

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On 27.09.2022, while admitting the writ petition, we

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ordered thus:

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“On the basis of the complaint filed by respondent No.1 herein, before the Kerala State Human Rights Commission, H.R.M.P.No.4671/11/8/2022/KKD has been registered.

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Considering the averments and the material on record, in H.R.M.P.No.4671/11/8/2022/KKD dated 22.07.2022, the Kerala State Human Rights Commission has passed the following order:

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Aggrieved by the unexpected move on the part

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W.P.(C)No.30703 of 2022

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of the insurance company in denying the insurance benefit, which according to petitioner, had debilitated the family both mentally and financially, the petitioner pleaded before the Commission to intervene in the case to get the claim sanctioned as the patient needed continuous treatment.

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The Commission has gone through the petition and convinced that violations of human rights have taken place on the part of the insurance company in denying the cashless claim of the petitioner/his mother. Accordingly the Commission directs the Manager, Tata AIG General Insurance Company Ltd, I floor, Opp.YMCA, Kannur Road, Kozhikode 673001 (email – [email protected]) to reconsider the decision to decline the claim and file report in this regard within 15 days.

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The case stands posted to sitting of the Commission in the month of August 2022 at Kozhikode.”

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Being aggrieved, instant writ petition is filed on the grounds inter alia that being a contractual matter, the Kerala State Human Rights Commission has no jurisdiction to entertain the petition.

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By referring to the details furnished in the enrollment form for group medicare, particularly the medical information, Mr. George A. Cheiran, learned counsel for the writ petitioner submitted that on verification from the hospital authorities and scrutiny of documents, it was found that the mother of the 1^st respondent was suffering from carcinoma of breast for 10 years and that the same has been deliberately suppressed in the enrollment form for taking mediclaim.

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In this context, he invited the attention of this court to the rejection order dated 24.08.2022, wherein it has been recorded thus:

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W.P.(C)No.30703 of 2022

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“As per the Scrutiny of the documents member is a known case of diabetes mellitus, hypertension since 20 years, carcinoma breast since 10 years that is prior to policy inception and the policy start date is 17/02/2021. The same have not been disclosed in proposal form. Hence your policy is being cancelled and we regret to inform you that your claim is repudiated under non-disclosure Section 4(7)(i)”

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Attention of this court was also invited to section 4.7.i. of the Policy along with terms and conditions, which speaks about mis-representation or non-disclosure of facts. Section 4.7.i. is reproduced:

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“ Section 4-General Conditions

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xxxxx xxxxx

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7. Misrepresentation, or non-disclosure of material facts

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i. We will not be liable to pay under the policy if any Misrepresentation or non-disclosure of material facts noted at the time of claim or otherwise, whether by You or any Insured Person acting on behalf of You or an Insured Person, & Policy shall be void ab-intio without any premium refund.”

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Having regard to the above grounds and the material on record, we deem it fit to admit the writ petition. Hence, the writ appeal is admitted.

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Petitioner is directed to take out notice by special messenger to the first respondent returnable on 06.10.2022.

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Posts on 07.10.2022. In the meanwhile, there shall be an interim stay of the order passed in H.R.M.P. No.4671/11/8/2022/KKD dated 22.07.2022.”

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Documents filed in support of the writ petition, prima

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W.P.(C)No.30703 of 2022

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facie proves suppression. Said aspect has not been disputed. Giving due consideration to the grounds of challenge

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and for the reasons stated supra, writ petition is allowed. Exhibit P2 order dated 22.07.2022 passed by the Kerala State Human Rights Commission is set aside. Kerala State Human Rights Commission is requested to take up the main case and decide the preliminary point of its maintainability on jurisdiction or finally, as the case may be.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/- S.Manikumar Chief Justice

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Sd/-

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Shaji P.Chaly Judge

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vpv

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W.P.(C)No.30703 of 2022

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APPENDIX OF WP(C) 30703/2022

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PETITIONER’S EXHIBITS

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`Exhibit P1`	`TRUE COPY OF COMPLAINT FILED BY THE 1ST` `RESPONDENT BEFORE THE HUMAN RIGHTS` `COMMISSION DATED 17.7.2022.`
`Exhibit P1A`	`TRUE COPY OF ENGLISH TRANSLATION OF EXT.P1.`
`Exhibit P2`	`TRUE COPY OF THE ORDER PASSED BY THE HUMAN` `RIGHTS COMMISSION DATED 22.07.2022.`
`Exhibit P3`	`TRUE COPY OF THE POLICY COPIES ALONG WITH` `THE TERMS AND CONDITIONS.`
`Exhibit P4`	`TRUE COPY OF THE PORTABILITY AND ENROLLMENT` `FORM.`
`Exhibit P5`	`TRUE COPY OF THE CASHLESS FORM, MEDICAL` `RECORDS AND THE CASHLESS DENIAL LETTER.`
`Exhibit P6`	`TRUE COPY OF THE CLAIM FOR REIMBURSEMENT` `THROUGH CLAIM FORM DATED 3.8.2022.`
`Exhibit P7`	`TRUE COPY OF THE CLAIM REJECTION LETTER` `DATED 24.8.2022.`

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//true copy//

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P.A. to Judge

Tata Aig General Insurance Company v. Anil N.

Case brief

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Tata Aig General Insurance Company v. Anil N.

Case brief

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