Durga Devi W/o Shivandas kukreja vs National Insurance Co. Ltd

COMPLAINANT/ Petitioner Smt Durga Devi has filed the present revision petition against the order of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (in short the State Commission).

BRIEFLY the facts of the case according to the Petitioner are that, the Petitioner took a Janata Personal Accident Policy from the National Insurance Company Ltd., (Respondent in this case) for Rs.5.00 lakh for a period of 12 years from March 1997 to March 2009. The policy indemnified her in case of any event of injury or death resulting from an accident. On 01.04.2004, the Petitioner had an accidental fall in the bathroom because of which she became completely paralyzed in the right side resulting in 100% disability. She was immediately admitted at the Apex Hospital, Bhopal and was shifted on 03.04.2004 to the Bhopal Memorial Hospital and Research Centre for specialized treatment where she was diagnosed as having suffered Cardio Vascular Accident (in short CVA) with Hemiplegia as a result of the fall. This fact was clearly stated in the medical certificate issued from that hospital by Dr R Gulati, who certified as follows: This is to certify that Mrs Durga Devi, 65 years wife of Shri Shivandas Kukreja is suffering from right sided Hemiplegia (Traumatic), this is due to an accidental fall in the bathroom where she sustained 100% permanent disability in the right side, due to this she is unable to move her right side of the body, has permanent disability hence, she has to remain in bed for life. The Petitioner lodged a claim with the Respondent Insurance Company. The Respondent repudiated the claim on the grounds that the Petitioners accidental fall was due to a pre-existing disease and was therefore, not covered by the insurance policy since, it was not an accident. The Petitioner, therefore, filed a complaint before the District Forum on the grounds of deficiency of service on the part of the Respondent and sought the following reliefs : 1.Rs.5.00 lakh for permanent disability; 2.Rs.10,000/- for mental agony; and 3.18% interest on the amount awarded by the District Forum from the date of repudiation.

The Respondent Insurance Company on the other hand, justified the repudiation of the insurance claim on the grounds that the present claim was not the result of the accidental fall as stated by the Petitioner but occurred because of a pre-existing disease of diabetes and hypertension prior to the fall. This is confirmed by an opinion of medical expert Dr Sanjeev Johri who certified as follows: Discharge ticket of Bhopal Memorial Hospital and Research Centre shows she suffered cerebro vascular accident with Hemiplegia which is a disease not a complication of fall.

Also, the discharge certificate from the Apex Hospital where the Petitioner was first admitted, clearly indicated that the Petitioner had very High Blood Pressure (70/110). A detailed medical investigation conducted by the medi-claim investigator also concluded that CVA was not related to the accident, but is related to Neurology. Since the Janata Personal Accident Policy did not cover diseases not related to an accident, Petitioner claim was treated as no claim. The District Forum after considering the evidence before it upheld the complaint for the following reasons: a. Dr Ravindra Gulati, MD has given a medical certificate stating that the complainants hemiplegia was due to the fall in the bathroom and she is 100% permanently disabled on the right side of the body and has speech disability.

b. The medical records filed by the complainant do not show that she was previously suffering from hypertension or that CVA with Hemiplegia was pre-existing. It is true that hypertension is a major cause for haematoma, but it can also be of traumatic origin caused by damage to major blood vessels in the head.

c. No records have been filed by the Respondent to show that the complainants condition was due to pre-existing disease and we find no reason to disbelieve Dr Gulati when he says that the CVA with hemiplegia, which the complainant suffered from, was due to the accidental fall in the bathroom, which has resulted in 100% disability.

The District Forum directed the Respondent Insurance Company to pay the Petitioner Rs.5.00 lakh with 6% interest from the date of repudiation till settlement of the claim and Rs.500/- as cost of the proceedings. The Respondent filed an appeal before the State Commission against the order of the District Forum. The State Commission accepted the appeal and set aside the order of the District Forum on the grounds that as per the medical opinion of Dr Sanjeev Johri, CVA is a disease and not a complication of a fall. Also the discharge ticket of the Apex Hospital, Bhopal had recorded that the Petitioner had past a history of known hypertension and DM II. It is medically accepted that essential hypertension is the most frequent cause of CVA and it is because of this pre-existing disease that the Petitioner had a fall and not vice-versa as contended by the Petitioner. Aggrieved by this order, Petitioner has come in revision before us. 4. Learned Counsel for both parties made oral submission and reiterated that medical records available on file indicate that the Petitioner had a pre-existing disease of Hypertension and diabetes and this was clearly stated in the summary of the Apex Hospital as well as the detailed report of the medi-claim investigator - Dr Rajesh Gupta based on expert medical opinion and after taking into account the entire medical record of the Petitioner. The State Commission was therefore, right in concluding that CVA with Hemiplegia is a disease and was not a complication of the fall. Learned Counsel for the Respondent has also contended that it is not correct that the Petitioner suffered 100% disability but only 70%. For all these reasons, the Respondent was fully justified in repudiating the insurance claim of the Petitioner.

Learned counsel for the Respondent relied on the report of Dr Ravindra Gulati, under whose medical supervision, the Petitioner was treated in the Bhopal Memorial Hospital and Research Centre and who had clearly certified in his discharge slip as well as in his affidavit, before the District Forum that he was fully aware of the facts of the case, because, the Petitioner was under his medical supervision. The relevant portion of Dr Gulatis affidavit reads as follows: That due to her accidental fall in the bathroom, the complainant has sustained grievous injuries on her head, which resulted in the rupture of the vessel and the outcome of the said injury is cardio vascular accident (hemorrhage). This fact is also evident from the discharge summary of the Apex Hospital, information supplied by Dr Rajesh Bhagchandani to the Insurance Co. and from the discharge summary of BMHRC. That due to the said injury right part of the body i.e. from head to right limb, of the complainant became paralytic coupled with speech disability and she has to remain in bed for her life, as there is no improvement in her condition. She is now became 100% permanently disabled. That, this CVA with Rt. Hemiplegia is the direct result of the accidental fall with which complainant has met. It is not due to any pre-existing disease. That the complainant is not having any history of having CVA with Rt. Hemiplegia.

THE Counsel for the Respondent has also stated that the medical opinion relied upon by the Petitioner is based on the views of doctors who had not physically examined the patient but had based their conclusions on theoretical assumptions/ deduced from records. Learned Counsel also pointed out that as per the terms and conditions of the Insurance Policy, if there is a permanent and total disability due to the accident, then the insurer will get 100% of the assured amount. Since, in the present case, there was adequate proof of both accident and permanent and total disability, the Petitioner is entitled to 100% of the insurance amount and the Respondent had wrongly repudiated the insurance claim. We have carefully considered the submissions of the learned Counsel and the evidence on record. It is a fact that there is varying medical opinion of two specialists on file. In such a situation we are of the view that more credence must be given to the opinion and the conclusion of the medical expert who had actually treated the patient and therefore has first hand knowledge about the case. In the present instance, it was Dr R Gulati who treated the Petitioner in the Bhopal Hospital and Medical Research Centre and he has certified that CVA with Hemiplegia occurred because of the fall and not vice-versa. The opinion of the other medical expert Dr S Johri is not based on first hand knowledge of the case since, he never medically examined or treated the Petitioner at any stage. Similarly, the opinion of the medi-claim investigator has also been deduced from secondary sources, because he had also never medically examined the Petitioner. Of course CVA with Hemiplegia can be caused by Hypertension but it can also be of traumatic origin, for example a fall. In the instant case, there is adequate medical evidence that it was the result of a fall. The Respondent has not produced any evidence to show that the Petitioner was ever treated for Hypertension or for any other serious pre-existing disease.

IN view of these facts, we conclude that the insurance claim was wrongly repudiated by the Respondent. Revision petition is therefore, allowed. We set aside the impugned order of the State Commission and restore the order of the District Forum in toto. Respondent is directed to pay the Petitioner a sum of Rs.5.00 lakh with 6% interest from the date of repudiation till settlement of the claim and Rs.500/- as cost.