GEETA GUPTA vs NEW INDIA ASSURANCE CO. LTD.

THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 29.6.2002 in Complaint No. 34/2002 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) dismissing the complaint of the complainant/appellant praying for compensation under Medi-claim policy obtained from the respondent/insurer.

UNDISPUTEDLY, the complainant obtained a Medi-claim policy No. 48-450302-04214 on 6.3.2000. Annual premium of Rs. 4,583/- was paid by the complainant to the respondent/insurer. The policy covered the risk of the complainant and her husband to the extent of Rs. 2.50 lacs for each of them for the period from 6.3.2000 to 5.3.2001. It is further not in dispute that the complainant suffered heart ailment in April, 2000 and was initially treated by Dr. Ashish Malhotra at Tiwari Nursing Home, Raipur. It was averred in the complaint that as per advice of Dr. Ashish Malhotra, as also in view of the nature of ailment suffered by the complainant she went to Mumbai and took admission in Bombay Hospital on 2.5.2000. It was further averred that she incurred an expenditure of Rs. 1,26,967/- during her admission in Bombay Hospital for the period from 2.5.2000 to 12.5.2000. It was also averred that after 3 months, the complainant again went to Mumbai for further check-up and incurred an expenditure of Rs. 11,000/-. According to the complainant, though she submitted all the relevant documents of her treatment and requested the respondent/insurer for early settlement of her claim, however, the respondent/insurer repudiated her claim by its letter dated 14.8.2001. The complainant thereafter sent a legal notice to the respondent/insurer but she did not receive any response from the insurer. Hence, the complaint was lodged in District Forum praying that respondent/insurer be directed to pay her Rs. 1,37,967/- towards expenses incurred by her, in her treatment as above, and also to pay her compensation of Rs. 10,000/- on account of mental harassment, caused due to non-settlement of her claim.

The complaint was resisted by the respondent/insurer. It was averred that insurance policy was issued to the complainant under the terms and conditions mentioned therein and if it was found that any of the terms and conditions were not complied with or the complainant suppressed any fact then the claim under the said policy was not payable. It was further averred that on perusal of the documents of treatment produced by the complainant, it was discovered that she was suffering from chronic heart disease. Since it was a congenital defect, treatment thereof was not covered under the terms of policy. Accordingly, her claim was repudiated and she was intimated by the respondent/insurer by its letter dated 14.8.2001 accordingly. It was averred that the complainant was not entitled to any reimbursement under the said policy.

DISTRICT Forum in the impugned order observed that the complainant suffered from congenital heart problem and, therefore, the risk as above was excluded in view of Clause 4 of the exclusion clause under the policy. It was, therefore, held that the claim of the complainant was rightly repudiated by the respondent/insurer. The complaint was, therefore, dismissed. Learned Counsel for complainant/appellant assailed the impugned order and strenuously urged that the District Forum erred in dismissing the claim of the complainant. There was no breach of terms of policy by the complainant and no suppression of material facts by her. It was submitted that complainant was entitled to get the amount spent by her in her treatment.

THE question that arises for consideration is : as to whether the complainant is entitled to the compensation and to recover the amount of expenditure incurred by her in her treatment? The policy document has been placed on record. The said policy document indicates that as per exclusion Clause 4.3 the Insurance Company was not liable to pay in respect of any expenditure incurred by the insured in connection with or in respect of the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhagia of Fibromyoma, Harnia, Hydrocele, Congenital Internal diseases, Fistula in anus, piles, sinusitis and related disorders. It may be noticed that in the instant case, Dr. Ashish Malhotra has diagnosed that the complainant was suffering from Congenital Acyanotic Heart disease. Dr. Anirudh Trivedi of Bombay Hospital and Medical Research Centre in his certificate dated 10.5.2000 reported large size defect in the inter atrial septum with fenestrations around. Complainant/appellant was operated and closure of ASB was done on 4.5.2000. Copy of the discharge card of the Bombay Hospital has been filed. Dr. Ismail B. Bandookwala, consulting obstetrician and Gynaecologist of Bombay has stated on the basis of the discharge card of Bombay Hospital that the insured was diagnosed as having atrial septal defect which was a worth defect. It has further been stated by Dr. Ismail, B. Bandookwala that there was atrial defect wherein there is a gap in septum separating the two atria of the heart on the left and right side and that she was operated upon for the closure of the defect by an open heart surgery.

THUS, there is no manner of doubt that complainant suffered since birth from atria septum defect i.e., gap in the septum separating two atria of the heart. The complainant received treatment for the said defect which was rectified by performing heart surgery at Bombay Hospital. As would be clear from the exclusion Clause 4.3 reproduced above that the insurer was not liable to pay under this policy issued by it, for congenital internal disease. Therefore, repudiation of her claim by the respondent/insurer appears to be justified. We will now proceed to consider the decisions relied upon by the learned Counsel for the complainant/appellant.

LEARNED Counsel for appellant relied upon the decision of the National Commission in Senior Divisional Manager, Life Insurance Corporation of India & Ors. v. Smt. J. Vinaya, I (2003) CPJ 50 (NC)=2002 (3) CPR 79 (NC), in which it was laid down that the burden of proving false representation by the insurer and suppression of material facts by him was on LIC. It was found in that case, it was not satisfactorily proved that the insured suffered from chest pain and breathlessness for the last 3 years. Therefore, repudiation of the claim of the complainant''s nominee the wife of the insured was held to be unjustified. In the present case, however, there is ample material to show that the diseased suffered from Congenital Heart Disease. It was clearly excluded under exclusion Clause 4.3 of the policy, hence the ratio of the said decision case would no avail to the appellant''s stand in the instant case. Another case relied upon by the learned Counsel for the appellant is L.I.C. of India v. Jasbir Singh, II (2003) CPJ 114 (NC)=2003 (1) CPR 277 (NC), in which the insured died due to cardiac arrest. The claim of the complainant was repudiated by the L.I.C. on the ground that the insured was pregnant at the time of filing of proposal for obtaining insurance policy. In the circumstances of the case, it was held that the Insurance Company failed to prove that the deceased insured was knowing the fact of her pregnancy. Clearly, the facts and circumstances in the present case are entirely different from the facts and circumstances of the said case.

Learned Counsel for the appellant also referred to the decision of the National Commission in M/s. New India Assurance Co. Ltd. v. Lalit Bhambani & Anr., I (2002) CPJ 23 (NC)=2001 (3) CPR 121 (NC). It was held therein that it was not proved by the Insurance Company that the material fact was suppressed or that the insured gave false information to the questions in proposal form.

SOME more decisions mostly by various State Commissions have been cited and relied upon by the learned Counsel for the appellant in support of his stand. However, on going through the said decisions, we do not find that the ratio thereof would be of any help to the case of complainant/appellant. In most of the said cases, the question involved appears to be concealment or suppression of material fact by the insured. However, in the instant case, the question of the insured''s knowledge about her ailment or its deliberate concealment by her is not under consideration. In fact, the repudiation was, as noticed earlier, on the ground of congenital heart disease, of which the insured was shown to suffer. It would afford a valid ground to the insurer to repudiate the appellant''s claim in view of Clause 4.3 of the policy. The question of insured''s knowledge would not be relevant or material. In the circumstances, the said decisions would not render any assistance to the complainant/appellant''s claim. As noticed above, the material and documents placed on record unimpeachably established that the complainant/insured suffered from congenital heart disease. Since she suffered from the said disease by birth Exclusion Clause 4.3 of the policy would come in her way and she would not be entitled to get any compensation under the policy as claimed by her.

CONSEQUENTLY, we find no reason for interference in the impugned order. This appeal has no substance. It is accordingly dismissed. Appeal dismissed.