Calcutta High Court
Pralay Shankar Dhar & Anr vs The Insurance Ombudsman & Anr on 16 August, 2024
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam, Hiranmay Bhattacharyya
1
OD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APO/90/2024
IA NO: GA/1/2024
PRALAY SHANKAR DHAR & ANR.
VS
THE INSURANCE OMBUDSMAN & ANR.
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 16th August, 2024
Appearance :
Mr. Pratyush Patwari, Adv.
Mr. Arun Tanti, Adv.
...for appellants
The Court : This intra-court appeal by the writ petitioners is directed
against the order dated 1st May, 2024 passed in WPO 308 of 2024. The
appellants/writ petitioners challenged the order passed by the Insurance
Ombudsman, which affirmed the order passed by the respondent private
Insurance company repudiating the insured's claim made by the first
appellant.
Learned Advocate appearing for the appellants would vehemently
contend that the order passed by the Ombudsman is wholly untenable, without
taking into the actual contention and the order is in violation of the principles
of natural justice. The respondent Insurance company before the Learned
Single Bench contended that the repudiation of the policy was on account of
non-disclosure of Double Hip Replacement surgery done on the first appellant
during the year.
The contention of the appellants was that the policy was renewed once
and in between the appellants made a claim for undergoing Double Hip
Replacement surgery, which was approved and amount was sanctioned.
Further, reliance has been placed on Regulation 8(2) of the Insurance
Regulatory And Development Authority of India (Protection of Policyholders'
Interests) Regulations, 2017. Learned Single Bench had extensively considered
the factual matrix and also dealt with the effect of Regulation 8(2) of the Act.
The Learned Writ Court also took note of the transcript of the voice
conversation within the parties and was of the view that the answer
"OK" for one of the questions as regards the pre-existing health condition was
not an appropriate answer. That apart, the issue that the Insurer had
honoured two policies previously was also considered and rightly held that it
cannot be elevated to the high status of acquiescence or waiver on the part of
the insurer, since an act of waiver constitutes an act which is done with full
knowledge of the fact which is sought to be waived. Reference was made to
decision of the Hon'ble Supreme Court in the case of Satwant Kaur Sandhu vs.
New India Assurance Company Ltd., reported at (2009) 8 SCC 316 and the
Learned Single Bench noted paragraph 16 of the said judgment wherein the
Hon'ble Supreme Court held that the materiality of the fact which is alleged to
be suppressed depends not on the present claim or the nature of the same but
on whether the suppression had a bearing on the Insurer being agreeable to
accepting risk at all or in fixing the premium in the Insurance policy. With
regard to the Double Hip Replacement Surgery performed on the first appellant
in 1990, the Learned Single Bench was right in observing that this is
undoubtedly a matter of serious importance since the fixation of premium
and/or the decision of the insurer to accept the policy would directly be linked
with such disclosure. The effect of Regulation 8(2) was also considered and it
was held that on account of suppression of material facts the petitioners could
not be entitled to any equitable relief in a writ petition.
Thus, we find the reasoning given by the Learned Single Bench is just
and proper and does not call for any interference.
For the above reasons, the appeal stands dismissed.
The application IA NO: GA/1/2024 also stands dismissed.
(T.S. SIVAGNANAM, C.J.)
(HIRANMAY BHATTACHARYYA, J.)
SN
AR(CR)j
