M Arjunan -/ vs NEW INDIA ASSURANCE COMPANY LTD

THESE two appeals arise out of the order of the District Consumer Disputes Redressal Forum, Coimbatore dated 23.4.92 in O.P. 301/91. The complainant who has succeeded in part is the appellant in A.P. 258/92 while the opposite party is the appellant in A,P. 291/92.

THE complainant who is an agriculturist took a Hospitalisation and Domicilary Hospitalisation Benefit Policy with the opposite party under Category IV of Scheme B. The period of insurance was from 30.11.89 to 29.11.90. He was admitted in the Kuppuswamy Naidu Memorial Hospital on 21.10.90 and discharged on 14.11.90 and there underwent and Open Heart Surgery for Aortic Valve Replacement, Aortic Stenosis Pericardial Effusion. He made a claim with the opposite party for a sum of Rs. 30,000/ - with all necessary particulars. The claim was rejected by the opposite party on the ground that the insured would have had the symptoms of the disease even prior to the taking of the policy and he was not, therefore, eligible It was treated as no claim. Hence this complaint. The opposite party questioned the jurisdiction of the District Forum to entertain this complaint as it was not a contract of service. On merits it claimed that as per the discharge summary produced by the complainant he was suffering from breathlessness for the past one year i.e., prior to the taking of the policy that he must have, therefore known about the existence of the disease prior to the taking of the policy on 30.11.89 and his claim was, therefore, rightly treated as no claim.

THE District Forum found that it had jurisdiction to entertain this claim and held that the complainant could not have known that he was suffering from any heart ailment prior to the taking of the policy and awarded compensation in the sum of Rs. 5,465/ - only with interest thereon at 18%. Aggrieved by the quantum awarded the com - plainant has preferred A.P. 258/92, while the opposite party has preferred A.P. 291/92 disputing the award made by the District Forum.

THE first question which arise for consideration is whether the claim is maintainable under the Consumer Protection Act Section 2(1)(o) of the Consumer Protection Act defines service as service of any kind any specifically includes insurance. Insurance companies are performing a very valuable service to mankind and the insurer has hired the services for consideration, the consideration being the premium paid. It has been repeatedly held by this Commission as well as by the National Commission that the services rendered by the insurer comes well within the ambit of this Act. The contention raised in the counter that the claim does not fall within the provision of the Act has no substance and has to be mentioned only to be rejected. Exhibit AI is the Policy of Insurance and it covers period from 30.11.89 to 29.11.90. The complainant has suffered from heart ailment and has been examined by the Department of Cardiology, Coimbatore Medical College Hospital on 22.8.90 under Exhibit A -2. They have come to the conclusion that he was suffering from Calcific Aortic Stenosis Pericardial Effusion (small). Thereafter he has got himself admitted in the Kuppuswamy Naidu Memorial Hospital, Coimbatore on 21.10.90 and has been discharged therefrom on 14.11.90. He underwent in the said hospital Open Heart Surgery for Aortic Valve Replacement, Aortic Stenosis Pericardial Effusion on 24.10.90. Exhibit A -3 is the Discharge Certificate and Exhibit A -4 is Operation Record. In Exhibit A -3 it is mentioned that the ''patient complains of breathlessness or one year''. On the basis of this entry in Exhibit A -3 Discharge Certificate, the opposite party insurer has taken the opinion of a panel doctor who has stated as follows in Exhibit B -2, Report. - Though it is mentioned in the discharge summary that the insured was suffering from breathlessness on exertion for the past one year which denotes prior to taking the policy on 30.11.89,1 am sure the insured would have had symptoms of disabling nature for quite some time despite adequate treatment and this would have made him to decide to undergo this major surgery. Hence the insured would have known the existence of the disease prior to taking the policy''. On the basis of this report of the panel Doctor, the opposite party has rejected the claim of the complainant under Exhibit A -8, dated 13.3.91.

THE opposite party, insurer relies upon Exclusion Clause No. 1 in Exhibit A -1 Policy of Mediclaim Insurance which runs thus: ''Any disease suffered by the insured person during the first 30 days from the commencement date of the policy. This exclusion shall not, however, apply if in the opinion of Panel of Medical Practitioners, constituted by the Company for the purpose, the Insured Person could not have known the existence of the Disease or any symptoms thereof at the time of making the proposal for insurance to the Company''. In view of the statement in Exhibit A -3, Discharge Certificate that the patient complains of breathlessness for one year the panel Doctor has come to the conclusion under Exhibit B -2 that the insured would have had symptom of disabling nature quite for some time and would have known of the existence of the disease prior to the taking of the policy. This is purely an inference made by the Panel Doctor who has not been examined before the District Forum and subjected to cross -examination. Exhibit B -2, Certificate issued by the Panel Doctor has no evidentiary value unless and until the person who issued the same has been examined and subjected to cross -examination. The inference drawn by the Panel Doctor in Exhibit B -2 is of little value.

THE complainant is a poor agriculturist who could not have had the necessary money to consult a qualified medical practitioner and who must have had little knowledge about physiology of the human body. Even assuming that he had breathlessness for some time, it could not be assumed that he was aware of the fact that the breathlessness was due to some problem of the heart. Even educated persons very often miss the essential point when they suffer from breathlessness or some pain the chest. It is too much to attribute such a knowledge to this complainant who is a poor agriculturist. We are, therefore, unable to hold in the first place that the complainant was suffering from heart ailment at the time of entering into this policy or mat he knew that he was suffering from such a disease and wantonly or deliberately suppressed it The Exclusion Clause No. I does not, therefore, apply. Exhibit A -1 is the Hospitalisation and Domicilary Hospitalisation Benefit Policy. Exhibit D -3 is the Prospectus issued by the opposite party and Exhibit D -4 is the Proposal Form of the complainant, both of which are now produced in the appeal and marked in the appeal. It is seen from Exhibits D -3 and D -4 that this Hospitalisation and Domicilary Hospitalisation Benefit Policy has 2 Schemes, as A and B. Scheme A covers Hospitalisation and Domicilary Hospitalisation Insurance only under Categories I, II, III of the Table of Benefits and Personal accident insurance, while Scheme B covers only Hospitalisation and Domicilary Hospitalisation Insurance under Categories I to V of Table of Benefits. In the Table of Benefits there are 5 categories as I to V. Each category gives the maximum amount allowable for every item of expenses. These items of expenses are classified broadly into 2 categories I and II. I deals with Hospitalisation benefits. It consists of 3 divisions A, B and C. A in turn c of 2 sub -divisions as (a) and (b). B and C in turn consists of sub -divisions a, b, c, d and e. Main item II deals with Domicilary Hospitalisation Benefits. Against each item of this expenditure, the maximum amount allowable is given in Categories I, II, III, IV and V. The complainant herein has taken the policy under Scheme B Category IV. The Hospitalisation and Domicilary Hospitalisation Benefits apply to both schemes A and B, but unfortunately the District Forum has taken the view that for scheme B the application is only Clause B of the Hospitalisation Benefits, and has awarded Rs. 5,465/ - as pertaining to Category IV. This is erroneous and it is now admitted at the Bar that both for Scheme A and B all the hospitalisation benefits and Domicilary Hospitalisation benefits in the Table of Benefits apply.

EXHIBIT A -5 is the Final bill issued to the complainant by Kuppuswami Naidu Hospital, Coimbatore. A total sum of Rs. 27,850/ - is claimed under 16 heads. We shall now see how far the complainant is entitled to the amounts paid under Exhibit A -5 with reference to the Table of Benefits in Exhibit A -1, Policy under Category IV. a) Item I (A) (a) in the Table of Benefits deals with Room, Board and Nursing expenses per day not exceeding Rs. 250/ - under Category IV. The complainant has been in the hospital from 21.10.90 to 14.11.90 and is entitled claim for these 25 days at Rs. 250/ - per day. But under Exhibit A -5 he has paid Rs. 500/ - only under item 1 - Post Operative Ward charges and another sum of Rs. 500/ - under item - 15 -Ward charges. The complainant is en - titled to this amount of Rs. 1,000/ - only under I(A)(a) of Table of benefits. b) Under item No. I(B)(a) and C(a), the maximum allowable, towards Surgeon and Anesthetist fees is Rs. 3,200 + 2,400 = Rs. 5,600/ -. Under Exhibit A -5 bill issued by the hospital item No. 2 - Operation Charge Rs. 5,000/ -, item No. 7 - Anesthetist Rs. 400/ -, item No. 8 - Bypass charges Rs. 6,000/ - and item No. 12 Surgical charges Rs. 1,500/ - totalling Rs. 12,950/ - fall under this head. The maximum payable is Rs. 5,600/ - and the complainant is entitled to the maximum sum of Rs. 5,600/ - only. c) Under Item No. I(B)(b) and C(b) under Table of Benefits in Exhibit A -1, Policy the maxi - mum allowable for Anesthesia, blood, Oxygen, Operation Theatre, Surgical Appliances comes to Rs. 2,300 + 1,750 = Rs. 4,050/ -. Item No. 3 of Exhibit A -5, Bill for Anesthesia charges Rs. 600/ - and item No. 9 for Valve cost Rs. 10,000/ - come under this head. The total is Rs. 10,600/ -, but the maximum allowable is Rs. 4,050/ -. The com - plainant is entitled to this maximum amount. d) Under Item No. I(B)(c) and C(c) of the Table of Benefits in Exhibit A -1, Policy, the maximum allowable for Diagnostic materials and X - ray is Rs. 2,300 + 1,750 = Rs. 4,050/ -. The items in Exhibit A -5 which comes under this head are No. 4 - Clinical Laboratory charges - Rs. 380/ -, No. 5 Biolab charges - Rs. 610/ -, No. 6 - Micro lab charges - Rs. 120/ -, No. 10 - X -ray charges Rs. 150/ -, No. 11 - HCTSC - Rs. 600/ -, totalling Rs. 1,860/ -. The complainant is entitled to this full amount. e) Under Item I(B)(d) and C(d) of the Table of Benefits in Exhibit A -1, Policy, the maximum allowable for Medical Practitioners, Consultants & Specialists fees for consultants/visits is Rs. 1,150 + Rs. 1,000 = Rs. 2,150/ -. Under this head item No. 16 of Exhibit A -5 falls i.e. for Rs. 500/ - only. The complainant is entitled to this amount only. f) Under Item I -(B)(e) and C -(e) of the Table of Benefits in Exhibit A -1, Policy, the maximum allowable for Medicines and Drugs is Rs. 1,150 + Rs. 1,000 = Rs. 2,150/ -. Under this head item No. 14 of Exhibit A -5 alone falls and that is for Rs. 170/ - and the complainant is entitled to this amount.

IN item II of Domicilary Hospitalisation Benefits in the Table of Benefits, no claim can be made under Category IV, as this category is denoted as nil. In the result the complainant will en - titled to the following amount. v. 1) I(A)(a)of Table of Benefits - 1,000 2) I(B) (a) and C(a) - 5,600 3) I(B) (b) and C(b) - 4,050 4) I(B) (c) and C(c) - 1.860 5) I(B) (d) and C(d) - 500 6) IKB)(e) and C(e) - 170 Total 13.180

IN the result, 1) A.P. 258/92 is allowed in part, the order of the District Forum is modified and the opposite party is directed to pay to the complainant Rs. 13 z180/ - with interest at 18% from 14.12.90 till realisation and costs of Rs. 500/ - as awarded by the Forum below. 2) The appellant is also entitled to costs of Rs. 500/ - in this appeal. 3) A.P. 291/92 fails and is dismissed, but without costs. Appeal partly allowed.