BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

COMMISSION, (ADDL.) RAJKOT, GUJRAT

CC NO. 210 of 2024
In the matter of: -
Dipak Parsotambhai Sanghani Complainant
Versus
Aditya Birla Health Insurance Co. Limited Opposite Party

WRITTEN ARGUMENTS FILED FOR AND ON BEHALF OF OPPOSITE PARTY I.E.

ADITYA BIRLA HEALTH INSURANCE CO. LIMITED

SUBMISSIONS ON LAW

1. At the outset it is stated that the complainant has deliberately mentioned an incorrect
amount of gutka/tobacco consumed by him. The Complainant has mentioned in the
proposal form that he consumes 1 small packet each week. It is pertinent to note that
hospitalization for the treatment of left tonsillar fossa bleeding and bleeding was due to
injury to tonsillar fossa is directly attributable to chronic use of betelnut/gutka/tobacco
and therefore the Claim was rightly repudiated by the Opposite Party as per terms and
conditions of the policy. The relevant extract of the proposal form and the declaration
made by the complainant is reproduced herein below:

2. Further, it is also pertinent to note that during the claim processing of claim registered
with the OP on 21.09.2023, it was found that the complainant is a betelnut/tobacco
chewer. Therefore, he developed and experienced bleeding from the tonsillar fossa and
sought medical attention from Dr. Navdeep Doshi at H J Doshi Hospital. After an initial
examination, Dr. Doshi prescribed medication. However, the following day, the bleeding
worsened, prompting another visit to H J Doshi Hospital. Upon re-examination, Dr. Doshi
recommended hospitalization from 27th to 29th August. Thus, in view of the specific
policy terms and conditions (as produced in the following paragraphs), claim of
 complainant was not payable. Hence, the insurance company was unable to approve the
claim and the same was duly notified to the complainant herein.

TERMS AND CONDITION OF THE POLICY

3. It is pertinent to bring into notice of this Hon’ble Commission that terms and conditions of
the subject policy clearly stipulates under policy terms and conditions that is preamble as
follows:
“Section A. PREAMBLE
This Policy has been issued on the basis of the Disclosure to information
norm, including the information provided by You in respect of the Insured
Persons in the Proposal Form, any application for insurance cover in respect
of any Insured Person and any other information or details submitted in
relation to the Proposal Form. This Policy is a contract of insurance between
You and Us which is subject to the receipt of premium in full and accepted by
Us in respect of the Insured Persons and the terms, conditions and exclusions
as specified in the Policy/ Policy Schedule / Product Benefit Table of this
Policy.”

4. Further as per policy terms and conditions categorically provide the permanent exclusions
in the policy and the same was duly apprised to the Policy holder. That the OP right from
inception of contract that is at proposal stage, kept Health Insured aware about the policy
terms and conditions with respect to disclosure of Information. Hence the company is well
within their statutory right to reject the claim which is rightly done so in present case
hence complaint is liable to be dismissed. The pertinent clause is reproduced herein for
the Hon’ble Commission’s ready reference:

Section C. Terms and Conditions: vi. Permanent Exclusions

4. Abuse

“Abuse or the consequences of the abuse of intoxicants or hallucinogenic substances

such as intoxicating drugs and alcohol, including alcohol withdrawal, smoking cessation
programs and the treatment of nicotine addiction or any other substance abuse
treatment or services, or supplies, impairment of Insured Person’s intellectual faculties
by abuse of stimulants or depressants”

COMPANY HAS ACTED AS PER THE MANDATE GIVEN THE PROPOSAL

FORM
5. That in present case insurance company herein acted as per the mandate given by the
complainant in proposal form and subject insurance policy was issued strictly as per the
mandate, declaration, and suggestions of the life assured. The company took all decision
in conformity of insurance terms and conditions which is concluded contract between the
insurance company and the life assured. It is stated that it is settled law that the insurance
terms must construe strictly and no relief which travels beyond the terms of the insurance
policy can be granted. It is further stated that policy contract clearly debars the claim
based on fraud which constitutes the contractual terms between the parties. Hence no case
for deficiency in services is made out in this case as there is no breach on the part of the
insurance company. Accordingly, present complaint is liable to be dismissed on this
ground alone. The insurance company craves leave to refer and rely upon the following
case decisions to support their decision to reject the policy as same cannot be faulted: -
a. Export Credit Guarantee Corporation of India Ltd Vs. Garg Sons
International 2013 (1) SCALE 410. The Honorable Supreme Court held that
while construing the terms of the contract of insurance, the Court must give
paramount importance to the terms used in the said contract.
b. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co.
Ltd. [(2010) 10 SCC 567]. The Apex Court held that the words in an insurance
contract must be given paramount importance and must be interpreted as
expressed without any addition, deletion or exclusion.
c. Reliance Life Insurance Co. Ltd. Vs. Madhavacharya (Revision Petition
No. 211 of 2009). The Hon’ble National Commission has clearly stated that
“Since the insurance between the insurer and the insured is a contract between
the parties, the terms of the agreement including applicability of the provision
and also its exclusion had to be strictly construed to determine the extent of the
liability of the insurer
d. United India Insurance Co. Limited Vs. HarchandRai Chand
RaiChandanlal I (2003) CPJ 393 &VikramGreentech (I) Ltd. &Anr. Vs.
New India Assurance Co. Ltd. II (2009) CPJ 34.

6. That the Complainant was duly informed that in case he is not satisfied with the features
or the terms and conditions of the policy he can withdraw/cancel the policy under the
“Free Look Period” provision which is within 15 days from the date of receipt of policy
document. It is pertinent to bring to the notice of this Hon’ble Commission that the
Complainant retained the policy document and did not raise any objection towards the
policy during the said “Free Look Period” with any grievance regarding the policy or its
terms and conditions, policy terms, meaning thereby that the Complainant agreed to the
policy and its terms and conditions, and the policy was to the agreement and satisfaction
 of the Complainant. That it has been determined through various judgments passed by the
Hon’ble National Consumer Disputes Redressal Commission New Delhi, specifically in
Mohan Lal Benal Vs ICICI Prudential Life Insurance Co. Ltd. (R.P. No. 2870/2012
Decided on 16.10.2012) and Harish Kumar Chadha Vs Bajaj Allianz Life Insurance
Co. Ltd. (Decided on 07.10.2013 in Revision Petition No. 3271 of 2013)& Shrikant
Murlidhar Apte Vs. Life Insurance Corporation of India, Revision Petition No. 634
of 2012, decided on 02.05.2013.

COMPLAINANTS PRAYER BEING BASELESS VAGUE AND ARBITRARY

7. That Complaint is devoid of any material particulars and has been filed merely to harass
and gain undue advantage and unjustified monies from the Insurance company and hence
complaint deserves to be dismissed in limine. It is submitted that the complaint has been
filed with ulterior motive and malafide intention to cause harassment and prejudice to the
Insurance company, which is a Company of high repute, hence the complaint being mala
fide liable to be dismissed.

COMPLAINT IS FLASE, FRIVLOUS AND BASELESS

8. That the Complainant has concealed and suppressed the material and relevant fact of case.
The Complainant has with malafide, and dishonest intention not only concealed the
material facts from the Hon’ble Commission but has also twisted and distorted the same
to suit their own convenience and to mislead this Hon’ble Commission. It is submitted
that the Complainant has acted in bad faith with respect to subject of this Complaint and
has approached the Hon’ble Commission with unclean hand hence in view of Doctrine of
clean hands- “One who seeks equity must come with clean hands”. Hence, the complaint
deserves no fate other than outright dismissal.

NO NEXUS BETWEEN DAMAGES CLAIMED AND DAMAGED SUFFERED

9. The Complainant has failed to set up a nexus between the damages claimed in the present
complaint and the damage suffered by him. The damages claimed are arbitrary, without
basis and is an abuse of process of law. It is further stated that damages not being debt are
liable to be proved by cogent and reliable evidence by the complainant, hence the
damages cannot be granted merely on asking of the complainant, hence the prayer clause
of the complainant for damages etc. being not supported by any cogent is liable to be
dismissed.

10. That without prejudice to foregoing, it is further stated that allegations of the complaint
are highly disputed and said aspect can be properly adjudicated only after taking detailed
evidence of the parties and therefore the present complaint cannot be tried before this
 Hon’ble Commission where the complaints are adjudicated through Summary Trial only.
Whereas in the case of.” (Harbans & Co. V. State Bank of India, II (1994)
CPJ)456:1994 (1) CPR 381. it clearly indicates that “When the case is not a simple case
of deficiency in service and involves determination of Complex question of facts and law,
which cannot be satisfactorily determined by the redressal agency in the time frame
provided under the Rules, it would be better for the complainant to seek redress of his
grievance in a civil Court, if so advised. That the Complaint being frivolous and vexatious
is liable to be dismissed under Consumer Protection Act as the Complainants has failed to
make out a case of “Deficiency of Service” as alleged or otherwise, within the meaning of
The Consumer Protection Act 1986, hence the present complaint is not maintainable.

SUPPRESSION OF FACTS

11. That it is settled law that non-disclosure of material information or incorrect/misleading

information amounts to suppression of fact since Life assured did not perform duty to
disclose all material information, the contract of insurance between Opposite Parties and
the Life Assured is a void contract. It is stated that Life insurance claim pay outs are made
from the pool of funds from many consumers of the services of the Insurance Company.
That to honor an illegitimate claim would mean doing injustice to other genuine
policyholders and would be against the principles of natural justice. The non - disclosure
made by the Life Assured was of critical ailment and had a direct impact on her mortality
and underwriting decision of the insurance company.

NO CASE OF DEFICIENCY OF SERVICE:

12. That in the case of Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66
where the Hon'ble Supreme Court laid down that the test of deficiency in service by
stating that:
“The deficiency in service cannot be alleged without attributing fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance
which is required to be performed by a person in pursuance of a contract or
otherwise in relation to any service. The burden of proving the deficiency in service
is upon the person who alleges it. The complainant has, on facts, been found to
have not established any wilful fault, imperfection, shortcoming, or inadequacy in
the service of the opposite party. The deficiency in service has to be distinguished
from the tortuous acts of the opposite party. ....”
13. It is submitted that preliminary objections raised herein above about maintainability of the
Complaint, go to very root of matter and as such these objections need to be considered at
the outset as preliminary issue and the Insurance company most humbly pray that this
Hon’ble Commission may be pleased to dismiss the Complaint summarily without going
into the merits thereof.

SUBMISSION BASED ON FACTS OF THE CASE

14. That the Opposite party was in receipt and signed proposal form from the complainant for
issuance of insurance policy on his health. Believing the details given by complainant
insurance company issued the subject policy as per the details mentioned below: -

Policy Number 21-21-0004061-02

Product Name Activ Health
Health Insured DIPAKBHAI PARSOTAMBHAI SANGHANI
MINABEN DIPAKBHAI SANGHANI
RIVAN
RIVANSH D SANGHANI
Policy Start Date 14.04.2021
Current Policy Period 20.04.2023 to 19.04.2024
Premium 16,242.00
Sum Insured 500000

15. That in accordance with clause 6 (2) & 4 (1) off the Insurance Regulatory and Development
Authority (Protection of Policyholder’s Interest) Regulations, 2002, the Opposite party had
sent the Policy Documents to the communication address mentioned in the proposal forms,
stating the policy terms & conditions mentioning “Free look Period” under Insured’s Right.
That it is very pertinent to mention that the Certificate of Insurance along with a copy of the
self-filled questionnaire, policy terms conditions etc., in the form of Certificate of Insurance
which is duly sent to Policyholder. That the policy holder had sufficient opportunity during
the free look period to approach the Company in case of any discrepancy in the answers
given to the questions in the self-filled questionnaire or if he was not satisfied with the
policy Terms and Conditions. However, the Policyholder had never approached the
Company in respect of the subject policy. If the Policyholder had any dispute in-respect of
the same, the Policyholder should have approached the Insurance Company and apprised
the discrepancy in the proposal or cancelled his policy in the free look period.
16. That the complainant has deliberately mentioned an incorrect amount of gutka/tobacco
consumed by him. The Complainant has mentioned in the proposal form that he consumes
1 small packet each week. It is pertinent to note that the complainant was hospitalized for
treatment of left tonsillar fossa bleeding and bleeding was due to injury to tonsillar fossa
and is directly attributable to chronic use of betelnut / gutka / tobacco. Therefore, the
Claim was rightly repudiated by the Opposite Party as per terms and conditions of the
policy. The relevant extract of the proposal form and the declaration made by the
complainant is reproduced herein below:

17. It is pertinent to bring to the notice of this Hon’ble Commission that the complainant
retained policy documents and did not raise any objection towards the policy during the
free look period provided to the complainant from the date of receipt of the insurance
documents.

18. During the claim processing of claim registered with the OP on 21.09.2023, it was found
that the complainant is a betelnut/tobacco chewer and therefore developed and
experienced bleeding from the tonsillar fossa and sought medical attention from Dr.
Navdeep Doshi at H J Doshi Hospital. After an initial examination, Dr. Doshi prescribed
medication. However, the following day, the bleeding worsened, prompting another visit
to H J Doshi Hospital. Upon re-examination, Dr. Doshi recommended hospitalization from
27th to 29th August 2023. Thus, in view of the specific policy terms and conditions, claim
of complainant was not payable. Hence insurance company was unable to approve the
claim. The relevant extract from the H J Doshi Hospital medical documents affirming the
fact that complainant is a tobacco chewer is reproduced as under:
 That the medical document(s) of H J Doshi Hospital also mentions that the patient is a
tobacco chewer.

19. That on the basis of these findings, the OP reached a conclusion during the claim
assessment of complainant. Therefore, claim was repudiated on the ground of abuse of
intoxicants which was duly covered under the clause reproduced as under:
“Section C. Terms and Conditions;vi. Permanent Exclusions 4. Abuse

Abuse or the consequences of the abuse of intoxicants or hallucinogenic

substances such as intoxicating drugs and alcohol, including alcohol withdrawal,
smoking cessation programs and the treatment of nicotine addiction or any other
substance abuse treatment or services, or supplies, impairment of Insured
Person’s intellectual faculties by abuse of stimulants or depressants”

Thus, in view of the above it was decided to repudiate the claim(s) and the same was
conveyed to complainant vide letter dated 25.10.2023.

20. Thus, in view of abovementioned submissions, it is evident on the face of it that insurance
company has acted strictly in accordance with the settled laws. Hence, present complaint
is nothing but a mere afterthought to harass Opposite party being a company of high
repute.

This Hon’ble Commission may be pleased to dismiss the complaint with costs, in the
interests of justice and equity.

For and on behalf of the Opposite party