BIJOY KUMAR AGARWALA vs NEW INDIA ASSURANCE COMPANY LIMITED

-THIS appeal has arisen out of the judgment passed by the District Forum, Jalpaiguri, on 29. 11. 2006 in the Case No. 51/2006, wherein the learned Forum has dismissed the complaint on contest without any cost.

THE brief facts of the case of the complainant before the Forum below were that the complainant purchased a medi-claim policy for himself, his wife, Meena Devi and his son, Dipak and the sum assured was of Rs. 50,000 for each of them from the OP-New India Assurance Company. The policy was first obtained on 4. 10. 2001, it was renewed from year to year, and it was lastly renewed for the period from 4. 10. 2004 to 3. 10. 2005. Smt. Meena Devi, the wife of the complainant fell ill due to renal disease and she was advised for transplantation of her Kidney and advised for taking dialysis by the doctors. The wife of the complainant was taken into Apollo Hospital at Chennai for better treatment and there her renal disease was diagnosed. Thereafter the wife of the complainant came back to Maynaguri and afterwards she rushed to Kolkata for treatment at Peerless Hospital. She underwent surgical operation and catheter was implanted for peritoneal dialysis and for this reason the complainant''s wife had to stay at Peerless Hospital from 30. 10. 2004 to 11. 11. 2004. The fact relating to the treatment of Meena Devi was brought to the notice of the OP and filed the claim form along with the relevant treatment papers. The complainant had submitted claim for a sum of Rs. 1,07,577. 62 on 20. 12. 2004, which was incurred for the treatment of his wife. But the claim was repudiated by the OP on the ground of pre-existing disease and issued a letter upon the complainant on 7. 5. 2005. Thereafter finding no other alternative the complainant filed the complaint before the District Forum praying for direction upon the OP to reimburse the claim amount of Rs. 1,07,577. 62 along with interest of @ 15% p. a. from the date of claim till realization and the complainant also claimed for compensation of Rs. 3,50,000 for harassment, mental agony due to the deficiency in service on the part of the OP. Being dissatisfied with the above-mentioned judgment the complainant-appellant has preferred the present appeal before this Commission contending that the learned Forum below misinterpreted and misconstrued by holding that hypertension has nexus with ischemic heart or renal failure which resulted in the death of Meena Devi. The learned Counsel for the appellant has submitted that though the respondent has filed a prescription of Dr. Sen dated 24. 8. 2004, which indicates that the deceased was suffering from hypertension since 20 years, the respondent failed to adduce any conclusive evidence to substantiate the allegation of the pre-existing disease. Therefore, as the respondent has brought allegation, the onus lies with it to prove its contention. The appellant has further stated that there is no evidence that his deceased wife was admitted in a Hospital or underwent any treatment for Hypertension since 2001, when the policy was taken for the first time. According to the appellant, the judgment passed by the learned Forum below is erroneous, improper, illegal and liable to be set aside. The respondent has submitted that claim has been repudiated on the ground that the deceased had been suffering from hypertension since last 20 years as per the prescription dated 24. 8. 2004 and as the deceased had concealed the material fact of such disease at the time of commencement of the said policy. As the deceased did not disclose the actual state of her health, the respondent-Company rightly did the repudiation. According to the respondent, there is no deficiency in service on the part of the respondent as the matter is guided by the contract of the policy and the present case is not at all maintainable before the Court of Law and the respondent prays for dismissal of the case.

On careful perusal of the record and various documents we have observed that it is an admitted fact the appellant purchased a medi-claim policy for himself, his wife, Meena Devi and his son, Dipak and the sum assured was of Rs. 50,000 for each of them from the present respondent-New India Assurance Company. The policy was first obtained on 4. 10. 2001, it was renewed from year to year, and it was lastly renewed for the period from 4. 10. 2004 to 3. 10. 2005. Smt. Meena Devi, the wife of the appellant fell ill due to renal disease and she was advised for transplantation of her kidney and advised for taking dialysis. She was taken into Apollo Hospital at Chennai for better treatment and her renal disease was diagnosed. Thereafter the wife of the appellant came back to Maynaguri and afterwards she rushed to Kolkata for treatment at Peerless Hospital. She underwent surgical operation and catheter was implanted for peritoneal dialysis and she had to stay at Peerless Hospital from 30. 10. 2004 to 11. 11. 2004. The fact relating to the treatment of Meena Devi was brought to the notice of the respondent and filed the claim form along with the relevant treatment papers. The appellant had submitted claim for a sum of Rs. 1,07,577. 62 on 20. 12. 2004, incurred for the treatment of his wife, however, the claim was repudiated by the respondent on the ground of pre-existing disease and issued a letter upon the appellant on 7. 5. 2005. It was written in the said letter that ''the patient is a known hypertensive for the last 20 years as per the prescription of the Dr. Sen dated 24. 8. 2004. This is prior to inception of the renewal of the policy. As Ischemic heart disease and ESRD are known complication of long standing hypertension, hence the claim is not payable because it is a complication of a pre-existing disease. '' In respect of such repudiation letter we are to say, that the deceased wife of the complainant renewed the policy on 4. 10. 2004 and she was admitted in the Peerless Hospital and B. K. Roy Research Centre on 30. 10. 2004 i. e. after 26 days from the renewal of the said policy. It was mentioned in the discharge certificate of the said Hospital that the patient, the deceased wife of the complainant was suffering from Chronic Kidney Disease (V) and Ischemic Heart Disease. However, how long days she had been suffering from those ailments, there is no whisper in the said discharge certificate. The respondent has drawn our notice to the certificate prescribed by Dr. D. Sen dated 24. 8. 2004 where it is stated that at the left side of the prescription that the patient is "known hypertensive since 20 years", and based on this certificate the respondent had repudiated the claim of the appellant. In the context of the certificate, we are of the opinion that there is no signature of the Doctor in the prescription and without signature; the prescription has no evidential value at all. Moreover, it is clear to us that how the said doctor came to the decision that the deceased had been suffering from 20 years. The respondent failed to adduce any evidence or any scrap of medical papers to prove its contention that the deceased was treated for hypertension. Therefore, there is no proof that the ailment of the appellant was pre-existing before taking out the policy/renewal of the policy or she had the knowledge of the ailment. The respondent could not file any previous prescription of any doctor prior to taking out the Medi-claim policy that the respondent bore any symptoms or sickness relating to her disease. Therefore, it cannot be said that the ailment was pre-existing before taking out the policy. Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring operation.

GOING by the foregoing discussion, we hold that the respondent failed to prove that the disease of the appellant was pre-existing before taking out the policy. However, the Company repudiated the claim as per the report of Dr. D. Sen, but this report was not based on any documents, previous prescriptions supplied by the appellant or the submission of the said policy holder. Therefore, we are in agreement that the report of Dr. Sen is based only on figment of imagination. In the light of the above facts and circumstances, we do not find any reason to uphold the repudiation of the claim of the appellant as the respondent failed to establish that on the date of taking out the policy the respondent had pre-existing ailment i. e. hypertension that she had suppressed the said material fact. Therefore, in our considered view such allegation regarding suppression of the material fact has no leg to stand. The respondent has failed to prove its contention by filing medical ethics that Ischemic heart disease and ESRD are known complication of long standing hypertension. Even, if, it is presumed that somebody informed about the fact that the deceased was suffering for the last 20 years, it would not be a proof of the fat that the deceased knew at the time of filing up the proposal form that she was suffering from the disease to make fraudulent suppression of material fact. Accordingly The New India Assurance Company is held liable to pay the amount of the said policy. In this regard we may refer to a judgment passed by the Hon''ble National Commission, reported in IV (2007) CPJ 182 (NC)= (2003) 1 WBLR (CPNC) 592, The New India Assurance Company Ltd. v. Harbans Singh. The case was that after taking a Medi-claim policy on 11. 5. 1996 the complainant got admitted in a Hospital on 31. 5. 1996 after a heart attack and ultimately underwent a Heart bye-pass Surgery. He preferred a medical claim, which was turned down by the Insurance Company. Being aggrieved, the complainant moved the District Forum that allowed the claim. The appeal before the State Commission failed. Hence, the petitioner Insurance Company moved the National Commission by Revision. The Hon''ble National Commission dismissed the Revision Application. The appellant has referred to a judgment passed by the Hon''ble National Commission in the case of Surinder Kaur and Ors. v. Lic Of India and Ors. , decided on 14. 2. 2005, reported in II (2005) CPJ 32 (NC), where Their Lordships has held that ''the onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer. The insurer cannot avoid consequences of insurance contract by simply showing inaccuracy or falsity of statement. Burden is cast on the insurer to show that the statement was on a material matter or facts have been suppressed, which it was material for the policy holder to disclose. It is further to be proved that the policy holder with the knowledge of the falsity of statement fraudulently made the statement or that the suppression was of material facts that had not been disclosed. ''

HENCE, it is ordered that the respondent shall pay the full insurance amount as to the appellant in respect of the said Medi-claim policy within one month from the date of communication of the certified copy of this order failing which the amount awarded shall carry interest @ 8% p. a. for the period of default. Regarding payment of compensation, we are of the opinion that as there was no unreasonable delay in service on the part of the respondent in repudiating the claim, inasmuch as, the repudiation was done within a period of six months. Thus, the appeal is allowed in part on contest. The judgment of the Forum below is set aside with the above observation. Appeal partly allowed.