A. Sanjeeva Narayan vs The Divisional Manager

REVISION petition No. 4777 of 2012 has been filed under section 21(B) of the Consumer Protection Act, 1986 against the order dated 30.10.2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (''the State Commission'') in First Appeal No. 569 of 2011.

THE brief facts of the case as per the petitioner/complainant are that the petitioner had retired from Oriental Insurance Company Limited on SVRS on 29.02.2004 and the petitioner was covered under health insurance as under:

As mentioned above the petitioner had taken Medical Policy from the National Insurance Company, i.e., respondent No. 1/opposite party No. 1 from 03.10.2005 to 31.03.2006. On 13.10.2005, the petitioner fell down from a two wheeler, and experienced great pain. The petitioner was admitted to Jagadamba Hospital, Gandhinagar, Hyderabad on 13.10.2005. Thereafter, the relevant claim form was submitted on 26.10.2005 to the National Insurance Company along with the hospital case sheet with a bill for Rs. 54,043.85 through Heritage Health Services Pvt. Ltd.,, the third party administrators for National Insurance Company. After a lapse of ten months, the Heritage Health Services repudiated the claim vide their letter dated 28.08.2006, on the ground that the "claim not supported by valid documents, information, hence, claim not payable".

THEREAFTER , the petitioner submitted, an appeal to the Regional Office, National Insurance Company, Hyderabad, i.e., respondent No. 2/opposite party No. 2 vide letter dated 01.03.2007, requesting them to reconsider the medical bills. The management acknowledged the letter on 16.08.2007 and repudiated the appeal stating that "ailment has got preexisting nature".

PETITIONER thereafter submitted a grievance to the Insurance Ombudsman on 23.10.2007. The petitioner''s grievance was dismissed on 06.08.2008. As no justice was done he had no option but to approach the District Forum for redressal of his grievances. He further stated that the averments put forth by the Heritage Health Services, the Third Party Administrators of National Insurance Company and by the National Insurance Company as also the Insurance Ombudsman were not correct and his claim was rejected without proper appreciation of the documents submitted by him. The rejection of claim by the respondents by stating that the surgical operation was not preceded by the necessary pathological tests including X -rays and ECG, was totally false and baseless. The respondent contended that how could the MRI report come on 14.10.2005 and the surgical operation be conducted on the same day. Further, there was no necessity to show the damage caused to the vehicle nor any rule states that a police complaint has to be registered. The rejection of claim by the respondent on the pretext that the disease of the petitioner was pre -existing was not a valid ground as the pre -existing disease was not established by the respondents.

THE petitioner therefore, made the following prayer: "(a) Direct the respondents to pay the claim amount of Rs. 54,043/ - along with interest @ 18% per annum to the petitioner herein from the date 26.10.2005 when the petitioner produced the documents to the respondent No. 1 through their T P A for claim amount.

(b) Award compensation of Rs. 50,000/ - to the petitioner towards pain and suffering and mental agony;

(c) Award cost of the complaint of Rs. 10,000/ - and

(d) Grant such other relief or reliefs as this Hon''ble Forum deems fit and proper in the interest of justice and equity."

IN their reply before the District Forum, the respondent Nos. 1 and 2/opposite parties Nos. 1 and 2 admitted that the insurance company had issued "Conditional Hospitalization and Domiciliary Hospitalization Benefit Policy" No. 551100/48/05/85000000376 to the petitioner - A Sanjeeva Narayana valid from 03.10.2005 to 02.10.2006. Inter alia from page 2 bottom of conditional policy with regard to exclusion read as follows: "Exclusions:

4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of.

4.1 All disease/injuries which are pre -existing when the cover incepts for the first time.

4.2 Any disease other than those stated in clause 4.3 contacted by the insured person during the first 30 days from the commencement date of the policy.

4.8 Convalescence, general debility, ''run -down'' condition or rest cure, congenital external disease or defects or anomalies, sterility, venereal disease, intentional self -injury and use or intoxicating drugs/alcohol.

5.5 The insured person shall obtain and furnish the company with all original bills, receipts and other documents upon which a claim is based and shall also give the company such additional information and assistance as the company may require in dealing with the claim.

5.7. The company shall not be liable to make any payment under this policy in respect of any claim if such claim be in any manner fraudulent or supported by any fraudulent means or device whether by the insured person or by any other person acting on his behalf."

The respondent -company - denied all the allegations mentioned in the complaint as false, frivolous and motivated and the petitioner and his documents including authors of documents were put to strict proof in the open court. The petitioner also fails for not impleading necessary party, viz., Third Party Administrator (TPA) mentioned in the policy itself namely, M/s. Heritage Health Services Pvt. Ltd., Flat No. 1007, 10th Floor, Babukhan Estate, Basheerbagh, Hyderabad, who had given the first repudiation letter dated 30.08.2006 mentioning the detailed reasons for repudiation after due application of mind. Hence, there was no deficiency of service on the part of the respondent - company. The petitioner fails for non -joining of necessary party, viz., TPA who has repudiated the claim initially on the following grounds: "(i) Admission is in the first 30 days of policy period 03.10.2005 to 02.10.2006. Date of admission 13.10.2005;

(ii) No FIR for alleged accident;

(iii) No external injuries;

(iv) No preliminary treatment details available;

(v) No ''x'' ray taken immediately after accident in Hospital; and

(vi) Surgical profile (Lab investigation) advised on date of admission 13.10.2005 prior to the MRI taken on 14.10.2005 which showed the diagnosis."

THE respondents averred that the ailment could be pre -existing and could be treated conservatively before planning surgery and need not necessarily result from any accident. Even a slight bending forward or lifting weight suddenly may cause this problem. The insured was not able to provide the documents requested, for example, the first prescription, ''x'' ray film, MRI Film. Hence the claim was not admissible due to deficit documents.

THE Third Party Administrator (TPA) had addressed a further letter dated 10.08.2007 to the respondent - company after due application of mind and after obtaining expert opinion of Dr T Narasimha Rao, Neuro Surgeon of Image hospitals, giving the following reasons: "(a) Ailment has got pre -existing nature;

(b) No proof of accident, i.e., FIR/MLC Copy, external injuries on the body, vehicle damage except claimant allegation;

(c) To suffer with this ailment accident need not be the only reasons even a slight bending forward or lifting weight may result in this problem;

(d) No trial for conservative management done as ailment doesn''t require immediate surgical intervention;

(e) Case sheet submitted by the claimant shows may discrepancies like;

(a) No primary investigation like X -ray of LS Spine done upon arriving at the Hospital after the alleged accident;

(b) Surgical profile (lab investigation) advised on the date of admission prior to MRI scan taken which shows the actual diagnosis;

(c) No nursing notes entered in the case sheet (medicines administration details);

(d) No details of pre -anesthetic check -up and investigations, which are important in surgical intervention of elderly man available in the case sheet;

(e) No details of first aid/primary management till neuro -surgeon visit."

The Insurance Ombudsman by its order dated 06.08.2008 dismissed the complaint No. 1.0 Hyderabad G 11 -3 -06 of the petitioner with the following findings on page 3 of the order of the Insurance Ombudsman. Decision:

"I heard both the parties and perused the documents submitted. The insurer''s representatives conveyed that an injury was not established and as the treatment was for ailment of disc prolapsed they have examined the claim under the conditions of the policy and rejected the same. The petitioner stated that he became aware of his problem only on 13.10.2005 and had gone as per doctor''s advice. The insurer''s representatives pointed from the record that the MRI spine was done only on 14.10.2005 whereas decision to go in for surgery was taken even before this as evidenced by the profiling of the patient for surgery on 13.01.2005 itself. The petitioner contested this and said that he had undergone the MRI scan on 13.10.2005 though the report may have been dated 14.10.2005. He added that the surgery was performed on 14.10.2005 only based on his undergoing the scan on 13.10.2005 and he undertook to submit proof of the same.

Subsequent to the hearing Shri Sanjeeva Narayan conceded that his MRI scan was done only on 14.10.2005 and that the hospital received the report in the afternoon, with surgery being performed later the same day.

I find that the petitioner has been changing the version and also has not been able to explain the inconsistencies pointed by the insurers in their repudiation letter. He had initially lodged the claim on the basis of an alleged injury, but later agreed with the insurer and did not dispute the claim being handled as one arising out of ailment. He has also wrongly asserted during the hearing that he had undergone the scan on 13.10.2005. In view of these various inconsistencies in his claim,. I hold that the insurers were justified in rejecting the claim. The complaint is dismissed."

THE law is well settled that the contract of insurance is the contract of Uberrima fide (utmost good faith) for both the parties viz., insured and insurer in, 2008 (21) ALT 214, our own High Court of AP has held that "Attempt to mislead the Court - Doctrine of Uberrima fide applies where the petitioner deliberately tries to mislead the court - Uberrima fide means utmost good faith - Courts should decline to exercise such a jurisdiction in favour of persons who have not approached with clean hands.

THE petitioner had chosen to conceal and suppress the material facts and vital records that although he was an employee of Oriental Insurance Company and held its policy for the past many years, but it appeared from the facts and circumstances that this policy at Oriental Insurance Co., got cancelled/lapsed and to obtain money fraudulently the petitioner got hold of another policy from National Insurance Co. Ltd., by suppressing facts and immediately that policy was made operational by the petitioner, without application of mind to its terms and conditions, and consequent rejection thereof. The claim was highly suspicious. The respondents states that the petitioner had suppressed important facts, as he had not filed details of medi -claim policy documents of health insurance coverage for the past 19 years and the reason for him to suddenly turn to the respondent for health coverage, when the petitioner himself was employed in Oriental Insurance Co. Ltd., for the past 33 years and was under health insurance coverage for the past 19 years all along with the Oriental Insurance Co. Ltd., The District Consumer Disputes Redressal Forum - II, Hyderabad (''the District Forum'') vide order dated 11.04.2011 while allowing the complaint held that "when the opposite parties had taken a stand that the complainant suffered from pre -existing disease, the insurance company should have produced some appreciable evidence in support of their stand. The basic principle of burden of proof of pre -existing disease lies on the insurers (opposite parties) as per the judgment rendered in various cases. In the absence of any proof adduced in that behalf, the opposite parties cannot take the plea that the complainant suffered from some pre -existing disease. It is however, not in dispute that the complainant underwent operation on 14.10.2005 for L 4 and L5 disc prolapsed with root compression both sides. As per the repudiation letter dated 16.08.2007 under Ex B 4, at point No. C it is mentioned that "to suffer with this ailment accident need not be the only reasons even a slight bending forward or lifting weight may result in this problem". This ground alone is sufficient enough is not of pre -existing disease. Further, it is not possible under the given circumstances to get register the FIR and also the certificate of vehicle damage.

The opposite parties main contention was that the doctors had arrived at a decision to operate the complainant even without the MRI and X -ray report and it was pointed out that the MRI spine was done only on 14.10.2005 whereas the decision to go in for surgery was taken on 13.10.2005 itself. Such early diagnosis of the ailment before any MRI report by the doctors, had probably raised doubts among the insurers and had arrived at a decision that the complainant''s suffered from pre -existing disease. This a vague decision which the insurers had arrived at without any proof of pre -existing disease.

There are some expert doctors who with their experience and expertise, easily diagnose the patient based on the symptoms without any tests and reports. In view of that is cannot be presumed that the disease was pre -existing unless and until it was supported by some expert evidence or any other evidence in support of their contention. Therefore, in view of the above discussion, we are of the considered view that the repudiation of the claim of the complainant was not on sound reasoning. As such, the opposite parties are directed to make the payment for the amount claimed by the complainant as the claim amount for the surgery and treatment is not disputed by the opposite parties. The opposite parties are therefore, directed to pay a sum of Rs. 54,000/ - along with interest @ 9% per annum from the date of repudiation till the date of realization. Points No. 1 and 2 are answered accordingly.

Point No. 3: In the result, the complaint of the complainant is partly allowed directing the opposite parties to pay a sum of Rs. 54,000/ - along with interest @ 9% per annum from the date of repudiation till the date of realization and to pay a sum of Rs. 2,000/ -."

AGGRIEVED by the order of the District Forum, the respondent Nos. 1 and 2 filed an appeal before the State Commission. The State Commission in their order dated 30.10.2012 observed that "the learned counsel for the appellant - insurance company has contended that the District Forum has exceeded its jurisdiction in donning the role of a doctor to decide whether the relevant tests for a patient to undergo surgery would be essential in the circumstances and it had decided the matter travelling beyond the terms and conditions of the insurance policy which is not permissible in law. We agree with the learned counsel. The District Forum ought not to have taken the duty of a doctor to decide whether symptomatic treatment or treatment based on pathological and other tests are sufficient for the respondent to prove that he had sustained the injuries in the accident and he had to undergo surgery for treatment of the injuries. In "Life Insurance Corporation of India v. Shiamim" reported in IV, (2009) CPJ 217 (NC), it was held that "in a contract of insurance, there is requirement of Uberrima fide on the part of the insured and insured has duty to disclose accurately all the facts which would influence a reasonable insurer in accepting the risk".

It is not the case of the respondent that the appellant had repudiated the claim without seeking any opinion of the doctors. Before questioning the correctness of the repudiation of the claim, the respondent has to discharge initial onus that he met with the accident and the treatment he had undergone therefore made him lodge the claim which the respondent failed to establish and in the circumstances, the findings returned by the District Forum are liable to be set aside.

In the result the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed. There shall be no order as to costs".

HENCE , the present revision petition. We have heard the learned counsels for the parties and have carefully gone through the records of the case. The counsel for the petitioner argued that it is a fact that the petitioner had met with an accident and suffered injuries. He also drew our attention to the records and admission notes of Jagadamba Hospital Private Limited, Hyderabad as also the admission notes wherein it had been recorded as under: "A Sanjeeva Narayana aged 56 years reported to the hospital with H/o Severe back pain and weakness of both lower limbs after a fall from a wheeler on 13.10.2005 while going on a pillion rider near Mushirabad at about 10.30 A M"; and H/o fall from a wheeler today while going as a pillion rider near Mushirabad at about 10.30 A M".

HE then drew our attention to the order of the District Forum, wherein it has held that the basic principle of burden of proof of preexisting disease "lies on the insurers" (OPs) as per the judgment referred in various cases. In the absence of any proof adduced in that behalf, the opposite parties cannot take the plea that the petitioner suffered from some pre -existing disease. Learned Counsel for the petitioner stated that the State Commission has erred in holding that the respondent had laid a doctored claim with a woven story of accidental fall without any supporting record or basis and the treatment administered to him would establish the pre -existing nature of disease.......... .................. Before questioning the correctness of the repudiation of the claim, the respondent has to discharge initial onus that he met with the accident and the treatment he had undergone therefor made him lodge the claim which the respondent failed to establish................"

LEARNED counsel for the respondent on the other hand stated that the petitioner has failed to give any evidence regarding the fact that he was injured in an accident. As per the exclusion clause 4 of the Conditional Hospitalisation and Domiciliary Hospitalisation Benefit Policy issued to the petitioner, the respondent was not liable to make any payment for any disease and injuries which were pre -existing when the cover incepted for the first time as also the disease other than those stated in clause 4.3 contracted by the insured person during the first thirty days from the commencement date of the policy. We have carefully read the evidence affidavit placed on record by the petitioner. In the said affidavit, there is only a bald statement that the petitioner fell down from a two wheeler, when a great pain was developed and was admitted to Jagadamba Hospital, Gandhinagar, Hyderabad on 13.10.2005. The petitioner''s affidavit neither gives the name of the person who was driving the two wheeler on which he was a pillion rider nor the number of the vehicle, as also the nature and circumstances of the accident. Admittedly, no FIR was lodged as such there is no evidence to support the petitioner''s claim that there was an accident and he was injured due to a fall in the purported accident apart from his statement.

LEARNED counsel for the petitioner has also admitted that as per the records of the Jagadamba Hospital, the date and time of admission are shown as 13.10.2005 at 11.00 A M whereas the accident is stated to have taken place at 10.30 A M. We have also carefully seen the MRI report placed on record. The findings of the MRI read as under: "* Central and bilateral paracentral disc herniation noted at L 4 - L 5 level causing thecal and root compression;

* Central and right paracentral disc herniation noted at L5 - S 1 level causing thecal and root compression;

* Mild annular disc bulge noted at L 4 - L 4 level causing thecal indentation;

* Intervertebral discs show T 2 hypointense signal suggestive of degeneration;

* Vertebral bodies are normal in height;

* Lower cord and conus show normal signal morphology;

* Spinal canal and bilateral neural foraminal narrowing noted at L 4 - L 5 disc level with right neural foraminal narrowing at L 5 - S 1 disc level.

* Facet hypertrophy noted at L 5 - S 1 level.

* Pre and paravertebral soft tissues are normal."

All the above findings are suggestive of degeneration of the Lumbo Sacral Spine. The pain is due to thecal and root compression resulting from disc herniation.

IT is seen that the petitioner was admitted on 13.10.2005 at 11.00 am, as per the admission note. The doctor saw him at 01.00 p m and on 14.10.2010 at 2.00 p m he was diagnosed with Disc prolapse at L 5 and L 5 -S levels causing compression on roots and Mild disc prolapse at L 3 - 4 and posted for surgery at 04.30 p m. The operation notes also states that the operation was to excise thickened ligaments and further the spine and laminal L 3, 4 5 and were exposed and excised. Nowhere in the medical record has it been mentioned that operation was necessitated to the injury sustained due to the fall in the accident. In fact as per the record, the discectomy was performed to remove the herniated material that was pressing on the nerve of the spinal cord. Further, as per the medical literature in such cases, the first line of treatment is rest, physical therapy and anti -inflammatory medications. If there is no relief and the pain is acute surgery is carried out. In this case the petitioner has failed to give any evidence to support his contention that he suffered acute injury to his spine in an accident, necessitating immediate surgical intervention. The Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : 2011 (3) Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed with no order as to cost.