Kuldip Singh vs New India Assurance Co.Ltd.

THIS is a complaint on the original side filed by the complainant alleging deficiency in service on the part of the opposite party. Complainant is resident of Indore. His son Jasdip Singh is residing in Maryland (USA) for last 10 years. Complainant and his family have obtained Medi-claim Policy from the opposite party since 1991 and renewed it in following years. However, no claim has ever been filed against this Medi-claim Policy by complainant or his family any time. In June, 1994 when the complainant wished to go to USA his Medi-claim Policy was effective but he was advised to obtain Overseas Medi-claim Policy. The complainant was advised to undergo medical checkup before issue of Overseas Medi-claim Policy. Accordingly checkup was done by Dr. D.K. Jain and Pathological test by Dr. P.S. Ajmani (Annex-B). Opposite party issued Medi-claim Policy, after satisfying themsevles, bearing No. 852/36064 (Annexure-C). The complainant proceeded to USA on or about 12.6.1994. After staying for 40 days, the complainant got some complaint and was immediately taken to Doctor. After examination complainant was admitted to University of Maryland, School of Medicine, Bathmore Maryland and was advised to undergo cardiovascular surgery. THIS development was reported to agent of opposite party and a claim for reimbursement of expenses was filed with opposite party. Opposite party referred the claim to its claim settling agent, i.e. Mercury International Assistance and Claims Ltd., England. Complainant has further stated that prior to this, complainant never had any complaint about hypertension, or heart disease or ischemic heart disease nor was ever treated for above diseases or hospitalised for this ailment. THIS, according to complainant, is proved by reports of medical check-ups done in past and the medical check-up done prior to departure for U.S.A. Further if he had received any treatment, he would have filed a claim under Medi-claim Policy.

OPPOSITE party vide their letter dated 4.1.1995 repudiated this claim on the ground that records received from hospital show that complainant had a history of hypertension and he had positive stress test in 1993 resulting in medication for ischemic heart disease. Lot of correspondence was exchanged between the two parties but failing to get relief from the opposite party, the complainant filed a complaint on 31.12.1996 and prayed for directions to opposite party to pay Rs. 12,44,006/- (Twelve lakhs forty four thousand and six rupees) as per details in para 18 of the complaint. Opposite party filed a reply to the complaint on 15.10.1997, in which they have raised preliminary objections, about adjudication of this case in Consumer Forum, on the grounds that this case will require expert scientific testimony and voluminous oral and documentary evidence. Opposite party, therefore, prayed for directions to pursue the case in Civil Court. Subject to above objection, the opposite party submitted a parawise reply in which all the allegations made in the complaint were denied generally and specifically opposite party further stated that report of Dr. Chopra attending surgeon in USA who performed the surgery, shows that complainant was a patient of hypertension and had undergone a positive stress test in 1993 and consequently was on medication for ischemic heart disease. A copy of the report has been filed as (Annexure R1) with the reply. It was further submitted on behalf of opposite party that there was no deficiency in service as the repudiation of claim was done by their agent as per terms of policy after careful consideration and proper application of mind. Opposite party, therefore, denied that they were liable to pay the amount claimed in the complaint and also prayed for dismissal of complaint.

An affidavit-cum-rejoinder was filed by the complainant to the above reply of the opposite party in which complainant alleged that repudiation of claim was made in a mala fide manner. Complainant further alleged that assumptions made by the opposite party were careless. Complainant referred to his own correspondence with Dr. Chopra and reply of Dr. Chopra to contend that he never underwent stress test nor was he aware of medication for the ischemic heart disease. Complainant reiterated that he had not suppressed any material facts while acquiring the Overseas Insurance Policy.

AN affidavit has also been filed by Shri J.S. Rajpal on behalf of opposite party on 22nd July, 1998 in which points made in reply were repeated. We have heard both the parties and have also perused the record of the case and various documents and affidavits filed by both parties. Record reveals that both parties have filed their own affidavits but none has filed any affidavit of a technical expert in the field of cardiovascular surgery. Only the report of Dr. Chopra of USA has been filed as annexure to the reply of opposite party. Affidavit of Dr. Chopra has not been filed. Curiously both complainants as well as opposite party are relying on Dr. Chopra''s letter and his report, respectively and drawing inference suiting their own case. Complainant has also complained that he was not given copy of this medical history on the basis of which Dr. Chopra has given the opinion of pre-existing hypertension and ischemic heart disease. Opposite party has also raised the point about not disclosing the name of person, who advised the complainant to obtain Overseas Insurance Policy when he was going out for only sixty days (see para 4 of reply). This was particularly important since as per complainant''s own submission he was hale and hearty and had a effective running Medi-claim Policy. Also in his affidvait and rejoinder to the reply of the opposite party complainant has himself mentioned that he visited USA frequently to meet his son. There is no mention that he ever obtained Overseas Insurance Policy on earlier occasions. Above two instances turn the needle of suspicion towards his action. Complainant in his affidavit and rejoinder has conveniently side-stepped this point of non-disclosure of name and avoided reply (See para 5 of rejoinder). It is thus clear that complainant has not provided any documentary proof about his health by filing affidavit of his family physician or any other doctor whom he had consulted.

WE shall now consider the report of Dr. Chopra filed by opposite party as Annexure R-1. This report, as pointed out earlier is the basis of repudiation of claim by opposite party. It is also to be noted that the report is dated 2.8.1994 under the heading "Cardiac catheterization report". As the report reads it is a report covering operation and his findings by the operating doctor. This report concludes with ''discussions'' and under this head Dr. Chopra has reported as follows : "Mr. Chandok is a 62 years old Asian Indian with a history of hypertension who had a positive stress test one year ago. He was initiated on medical therapy for ischemic heart disease and has been doing fairly well. Over the last one week or so he has had increasing shortness of breath and chest pressure symptoms of exertion..."

Above report shows that complainant had a history of hypertension and was getting medical therapy for ischemic heart disease and has been doing fairly well. Considering that this report is a report of Doctor who performed operation on complainant in USA is of vital importance. Dr. Chopra also reports that complainant "was doing fairly well". This explains the relevant medical report given by Dr. D.K. Jain of Indore on the basis of which abovesaid policy was issued after accepting proposal. It is true that complainant thereafter wrote to Dr. Chopra who in reference to this letter wrote to the opposite party that probably complainant himself was not aware of the fact that he was being provided medical therapy for ischemic heart disease. However, this reply of Dr. Chopra does not contradict his findings about medical history of patient as given by him on 2.8.1994. Complainant has failed to provide any evidence by filing affidavit of a Doctor that he never had any medical history of hypertension and ischemic heart disease. WE, therefore, conclude that repudiation of claim on the basis of report of Dr. Chopra is done in a bona fide manner after application of mind and hence there is no deficiency in service. WE find support, for this view by a judgment of the National Commission in the case of Smt. Drupadi Devi S. Choudhari v. United India Insurance Co. Ltd., I (1993) CPJ 94 (NC)=1993 (1) CPR 224, in which National Commission held "when the insurer is found to have repudiated the claim under an insurance policy bona fidely it cannot be guilty of deficiency in service". Similar view has been taken by National Commission in the case of National Insurance Co. Ltd. v. Surinder Arora, III (1993) CPJ 408 (NC). In this case National Commission found evidence of suppression of material facts by insured. We have already mentioned in earlier paragraphs that no affidavit of any expert has been filed in this case. Even the affidavit of Dr. Chopra has not been filed. Complainant had been given a copy of this report which formed Annexure R-1 of the opposite party''s reply. Complainant has filed a rejoinder on affidavit, to reply of opposite party. However, we do not find from the order-sheet or from record any request of the complainant to cross-examine Dr. Chopra since as per his affidavit, he could not get hospital records. In the absence of such a request, we have to hold the report of Dr. Chopa as not contradicted by oral testimony or affidavit of another expert in the field of cardiology. We are, therefore, of the opinion that report of Dr. Chopra has to be relied upon as authentic and consequently repudiation of claim on the basis of the report of Dr. Chopra as bona fide. We, therefore, hold that no deficiency of service is established on the basis of evidence placed before us.

IN the result, the complaint fails and is dismissed. We allow complainant the liberty to agitate the matter in a Civil Court having competent jurisdiction if he is so advised. No order as to costs. Complaint dismissed.