ASIM J. PANDYA vs Oriental Insurance Co. Ltd.

THIS appeal arises from order dated 17.2.2004 dismissing the complaint bearing No. 220 of 2002 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City.

WE have heard the learned Advocates. It would appear that the complainant along with members of his family including his daughter Shaiva came to be insured under Mediclaim insurance in the sum of Rs. 75,000/- and she was operated during the subsistence of the policy at Hinduja Hospital, Mumbai on 23.10.2001. Claim was preferred by the complainant and same was repudiated on 3.1.2002 on the ground that the disease was pre-existing and it was excluded as per Exclusion Clauses 4.1 and 4.8 of the Mediclaim policy in question. The complainant made representation but that also was not responded to favourably by the opponent Insurance Company. He, therefore, approached the City Forum before whom the opponent Insurance Company canvassed the repudiation supported by the aforesaid two clauses of the Mediclaim policy. The City Forum accepted the repudiation to be correct and bona fide on the ground that the complainant''s daughter Shaiva was operated for Scoliosis Dorsal Spine and as per the report of Dr. Bhaumik Jani dated 14.8.1995, Shaiva was shown to have suffered from Hemivertebra although it did not in fact appear externally. The City Forum referred to the MRI report dated 31.5.2001 showing that Hemivertebra had resulted into Scoliosis. Relying on these two documents, the Forum camhe to the conclusion that the disease was pre-existing and, therefore, repudiation of the claim on that ground was justified as per Clause No. 4.1 of the Mediclaim policy in question. The City Forum has also made reference to the diagnosis of Dr. Jyotindra Pandit for finding that the person insured may or may not be knowing about the existence of the disease but the disease was in existence prior to taking of the policy and that has been excluded as per the relevant clause appearing in Condition No. 4.3 (correct condition is 4.1). Finally, the City Forum has made reference to the opinion of Dr. Hiren Maniyar submitted from the side of the opponent Insuance Company and X-ray report of Dr. N.L. Patel. The City Forum has finally referred to Clause 4.8 as canvassed on behalf of the opponent Insurance Company and found that the claim was rightly repudiated by the opponent Insurance Company. It would appear from the impugned order as also the stand of the opponent Insurance Company that the claim was sought to be repudiated only on the basis of Clauses 4.1 and 4.8 of the Mediclaim policy in question. It has been submitted on behalf of the complainant that he was not informed about the relevant terms and conditions of the Mediclaim Policy in question and he was kept unaware about the aforesaid Clause Nos. 4.1 and 4.8 and, therefore, the claim could not have been repudiated on the basis of such clauses. See Morgan Insulators Ltd. v. Oriental Insurance Company, AIR 2000 SC p. 1014. At first, when this submission was made in the light of further broad submissions this Commission had an occasion to pass order Exh. 7 on 15.7.2004 as under: "When this appeal came up for hearing, no one has remained present for the opponent Oriental Insurance Company Limited. This appeal has been filed by the complainant against the impugned order dismissing his complaint on the ground that repudiation of the claim was justified as covered under the exclusion clause regarding pre-existing disease. The submission of the complainant in the first place is that he was not informed about the terms and conditions of the policy which would indicate such an exclusion clause. Under the circumstances, his submission is that correct construction of relevant clause of the policy on which reliance was placed by the opponent Insurance Company would indicate that the exclusion clause would not apply to the present case. In the present case, X-ray (page 32) shows "hemivertebra with extra (13th) rib is seen on left side at the level of D-10". What is excluded by the clause is congenital external disease or defect or anomaly and this is certainly not external defect or anomaly, much less disease. It has also been submitted that there was no intention or idea of suppression of fact as the complainant himself has provided all the papers including the aforesaid report of the hospital and subsequent medical treatment papers which first started in the year 2000. First policy of Mediclaim was taken in the year 1998 and it was renewed from time to time. All these circumstances submitted from the side of the complainant would go to indicate the genuineness of the claim on the part of the complainant. However, since no one is present for the opponent Insurance Company, we would like to recommend the complainant''s case to be considered afresh by the opponent Insurance Company and place the decision taken by the opponent Insurance Company on such reconsideration on the record of this appeal on the returnable date. This appeal is accordingly adjourned to 8.9.2004. Direct service is permitted."

Since the opponent Insurance Company orally conveyed through its learned Advocate that the suggestion made by this Commission was not acceptable, the matter has been heard. The opponent Insurance Company has not been able to show any material to deny the factual aspect set out by the complainant about supplying of the terms and conditions of the policy at the time of initial mediclaim insurance policy which was taken in the year 1998. It is not in dispute that after the initial mediclaim insurance was taken by the complainant from the opponent Insurance Company in the year 1998 that came to be renewed year after year. The incident of operation had taken place in the year 2001 as can be seen from the facts of the case. If the terms and conditions on which the opponent Insurance Company places reliance are not communicated to the insured, they can hardly be said to be binding to the insured. See Morgan Insulators Ltd. v. Oriental Insurance Company (supra). Assuming that the aforesaid clauses of the mediclaim policy in question are required to be taken into consideration, the question is which of the two clauses relied upon from the side of the opponent Insurance Company would be applicable. It has been submitted on behalf of the complainant that where there is a special or specific condition in respect of particular matter, general condition will not apply. Reliance has been placed on the maxim ''generalibus specialia derogant'' meaning thereby that if there is a special provision made on a particular subject, that subject is excluded from the general provisions. Reference in this connection has been made to a decision of the Apex Court in the case of Rajasthan v. Gopi Krishnan, AIR 1992 SC p. 1754. In the present case Clause 4.1 is a special clause on which reliance has been placed by the opponent Insurance Company. That clause reads "Convalescene, general debility ''run-down condition or rest cure, congential external disease or defects or anomalies, sterility venereal disease, intentional self injury and use of intoxicating drugs/alcohol". Clause 4.1 is general in nature and speaks about disease/injuries which are pre-existing when the cover incepts for the first time. Now, if congenital external disease is specially covered under the specific Clause No. 4.8, it cannot be said to have been intended to be covered in Clause 4.1. Aforesaid rule of construction of general clause and special clause would apparently operate in the present case. It has, therefore, to be ascertained whether Clause 4.8 would apply to the present case or not. It is not in dispute and it cannot be disputed that complainant being a layman insofar as medical science is concerned did not have knowledge about the internal congenital disease or deformity of his daughter. Reference which appears in the X-ray report dated 14.8.1995 issued by Dr. Bhaumik R. Jani is apparently incidental and no doctor has expressed any opinion about the complainant''s daughter Shaiva having developed any disease known as Scoliosis Dorsal Spine. The aforesaid finding in the X-ray report does not indicate existence of any disease/deformity known as Scoliosis. If the complainant knew about this when insurance was first taken in the year 1998 he would have definitely disclosed the same to the opponent Insurance Company. As a matter of fact, if he had any knowledge about such disease/deformity about his daughter, he would not have waited up to 1998. He would have immediately gone for setting right the deformity, if any, of his female child immediately after the aforesaid report. Even after 1998, there have been renewals of the policy from year to year till up to 2001 when the complainant came to be informed for the first time that his minor daughter had developed particular deformity known as Scoliosis Dorsal Spine requiring surgical intervention. The complainant got his daughter consulted by Dr. Jyotindra Pandit, who, as per his prescription note dated 10.6.2000 made reference to Scoliosis Dorsal Spine and the patient was advised suspension exercise at a physiotherapy centre and to observe her condition. It would become daylight clear from this report that deformity even did not start appearing externally on that date. The complainant''s daughter was then required to be consulted in Chirayu Fracture, Orthopaedic and Spine Hospital and the prescription note dated 24.3.2001 brings out following notes. "Congenital hemivertebra Dio and the patient was advised Brace (Boston''s) with review every six months." It would, therefore, clearly appear that it was only in the year 2001 that the complainant appears to have been posted with knowledge about some deformity in his female child. He has, therefore, been on the run for continuous monitoring of the health of his female child which has ultimately resulted into getting her operated in Hinduja Hospital for the aforesaid deformity and submitting of medical bills under the policy of insurance in question. The question that arises for our consideration, therefore, is whether the aforesaid deformity could be said to be external deformity or disease. Reference has been made to certificates of Dr. Hiren Maniyar and Ateet Sharma on behalf of the opponent Insurance Company. In the first place, these doctors have not filed affidavits before the learned Forum though they were to be brought before the learned Forum. The complainant did not have opportunity of subjecting them for cross examination with a view to find out the correct medical aspect of the matter as to whether the deformity can be said to be external or internal at any point of time before the year 2000. The reports of Dr. Hiren Maniyar and Dr. Ateet Sharma, therefore, could not have been relied on firstly by the opponent Insurance Company and secondly by the learned Forum. The said doctors have apparently confused Scoliosis with the X-ray finding of Hemivertebra with extra (13th) rib seen on left side at the level of D-10. Scoliosis is the ultimate consequence that appears in the patient and when it appears in the patient with external symptom/sign it becomes known as external deformity. Till then it might be an internal deformity. Reference has been made on behalf of the complainant to the following excerpt from an article compiled in "The Textbook of Spinal Surgery, Second Edition''. The excerpt is contained in Chapter 30 under the heading ''Congential Scoliosis'' by John P. Lubicky and it reads as under: "... A hemivertebra that is fused to its neighbour vertebrae above and below does not have open growth plates, and the risks for hemivertebra growth and an increase in the curve is signifcantly less. Therefore, the concepts of incarceration, unincarceration, segmentation, and unsegmentation are important in evaluating effects of the hemivertebra."

It is, therefore, clear that Clause 4.8 will have to be construed in its true perspective. The clause pertains to exclusion of congenital external deformities or anomalies only. It would, therefore, not apply to the present case as cogenital hemivertebra could not be said to be an external defect/normally at the relevant time (either in the year 1995 or in the year 1998.) It is settled principle of law that when there is any ambiguity about the construction of a particular clause in a contract of insurance, the same is required to be construed as ''contra proferentem'' [See United India Insurance Company Limited v. Pushpalaya Printers, I (2004) CPJ 22 (SC)=II (2004) SLT 263=AIR 2004 SC p. 1700].

IN view of what is stated above, repudiation of the claim preferred by the complainant could not be said to be correct and proper. It is not in dispute that the complainant submitted the claim as per the expenses incurred by the complainant and within the limit of mediclaim policy in question. He submitted the claim for Rs. 69,287.56. The female child was covered for the sum of Rs. 75,000/-. Hence, in our considered opinion, the complainant would be entitled to the claim of Rs. 69,287.56 under the mediclaim policy in question. In the result, following order is required to be passed. ORDER Impugned order dated 17.2.2004 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City in Complaint No. 220 of 2002 is hereby set aside. Complaint bearing No. 220 of 2002 filed by the complainant against opponent Oriental Insurance Company is hereby allowed. Opponent Insurance Company is directed to pay to the complainant Rs. 69,287.56 with interest @ 6% p.a. from the date of complaint till payment, within eight weeks from today. We, however, do not award any cost or compensation. This appeal is accordingly allowed, with no order as to costs. Appeal allowed.