HARJEET KAUR vs National Insurance Co. Ltd. and Ors.

THE Revision Petitioner was the complainant before the District Forum. She had obtained a Group Mediclaim policy for Rs. 1 lakh for the period from 8.9.2002 to 7.9.2003. As the complainant felt some pain in the abdomen, she got checked up and was ultimately operated at Bombay Hospital on 28.5.2003 wherein she remained upto 12.6.2003, resulting in a total expenditure of Rs. 1,21,370. Claim was submitted by her to the Insurance Company along with necessary documents which was repudiated by the Insurance Company on 19.11.2003.

AGGRIEVED by the repudiation the complainant filed a complaint before the District Forum, which was resisted by the Insurance Company stating that surgery/treatment involving Hysterectomy'' was not covered during the first year of the policy, in view of the Exclusion Clause under the Mediclaim policy. Therefore, the claim of the complainant was not payable.

THE District Forum observed that the complainant could not be presumed to have been aware of the existence of fibroid prior to obtaining the policy and, therefore, repudiation of her claim was not justified. Accordingly, the District Forurn directed the Insurance Company to pay the complainant Rs. one lakh with interest @ 9% p.a. as also Rs. 1,000 as cost. Aggrieved by the order of the District Forum, the Insurance Company filed an appeal before the State Commission. The State Commission held that as the Hysterectomy took place in the first year of the policy, it was squarely covered by the Exclusion Clause. Accordingly, the State Commission allowed the appeal of the Insurance Company set aside the order of the District Forum and dismissed the complaint.

DISSATISFI ED by the order of the State Commission, the complainant has filed this Revision Petition before us. We have heard the learned Counsel for the parties. The main issue in this case is the interpretation of the Exclusion Clause which reads as under: "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 diseases/injuries which are pre -existing when the cover incepts for the first firm.

4.3. During the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign prostalic Hypertrophy, Hysterectomy for Menorrhagia or Fibromyoma hernia, hydrocele, Congenital, internal diseases, Fistula in anus, Piles sinusitis and related disorders are not payable; if these diseases are pre -existing at the time of proposal they will not be covered even during subsequent period of renewal too. If insured is aware of the existence of congenital disease since inception of policy, it will be treated as pre -existing".

THE expenses incurred for the treatment for Hysterectomy during the first year of the operation of the insurance cover is not payable if the disease pre -existed at the time of proposal and if the insured is aware of the existence, it will be treated as pre -existed. The insurance cover was obtained on 8.9.2002 and the insured was operated on 28.5.2003.

NO record is produced by the Insurance Company to prove that the insured was aware of the Fibroids in her uterus. No record of her treatment in any hospital or clinic prior to the issuance of the insurance cover has been produced before us. Further no affidavit of any treating doctor that the insured was treated by the doctor for menorrhagia has been placed on record.

THE complainant was treated for fibroids in her uterus. The word Menorrhagia'' has been defined in Butterworths Medical Dictionary, 2nd Edition as excessively profuse discharge of the menses or their excessive prolongation''. Nowhere it is mentioned in this definition that menorrhagia means fibroids in the uterus. No evidence whatsoever has been produced before us that the patient was suffering from menorrhagia at the time of taking the insurance policy.

THERE is no evidence to prove that she was aware of this disease. Large number of persons may be or may not be suffering certain disease, they will not be aware of the disease.

IN this connection, it is worthwhile to refer to the judgment of this Commission in Praveen Damani v. Oriental Insurance Co. Ltd., IV (2006) CPJ 189 (NC), Revision Petition No. 1696 of 2005, decided on 3.10.2006, wherein this Commission paid special attention to the Exclusion Clause -4.1'' of the policy which states that it is not relevant whether the insured person had knowledge of the existence of a disease or not. If symptoms of the disease existed before the effective date of insurance and even if the insured person was not aware of these symptoms, the Insurance Company was not liable to pay any claims arising out of the condition. The National Commission held that - "This policy is not a policy at all as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving any benefit to the insured under the garb of pre -existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and, hence, they cannot be made liable to suffer because the Insurance Company relies on their Exclusion Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre -existing in the system totally unknown to him which he is not aware of."

The Commission further held: "In hindsight, every one realizes much later that the symptoms were indicative of a disease. But common people are not at all familiar with the medical knowledge and so they cannot diagnose their own diseases. If they were expected to be so aware of their medical condition at all times, there would be no use of insurance policies."

THE ratio of the above judgment is squarely applicable to the case on hand. Therefore, we hereby allow this Revision Petition and set aside the order of the State Commission and confirm the order of the District Forum. The Insurance Company shall also pay Rs. 10,000 as cost for making the complainant fight her case upto the level of the National Commission.