MOHINI MOHINDROO vs NEW INDIA ASSURANCE CO. LTD.

THE challenge in this appeal is to the order of the learned District Forum dated 24.9.92 whereby the complaint of the appellant/complainant (hereinafter to be referred to as the complainant) has been dismissed.

THE relevant facts necessary to be set out here are that Smt. Mohini Mohindroo is the widow of late Shri Ramesh Chand Mohindroo. Late Shri Ramesh Chand Mohindroo, husband of the complainant, took a Medi-claim Policy No. 7582600129 in January, 1988 although it transpires from the evidence that this policy was admittedly taken on 31.12.87. According to the complainant, her husband had cramps in his legs while travelling and that he went to Batra Hospital. New Delhi to have investigation including angiography and the hospital authorities after investigation found that the husband of the complainant needed open heart surgery immediately and consequently he was operated upon under the package deal programme and an amount of Rs. 33,000/- was charged from him for his operation held in January 1988. According to the complainant, her husband never suffered any heart attack or any heart ailment earlier and such disease was never detected by any doctor and after the operation he was quite hale and hearty and performing his normal duties. Unfortunately he expired on 30.8.88 all of a sudden. Infect the deceased after the operation in Batra Hospital, New Delhi had himself submitted a claim No. 351405/48/88/022 for Rs. 33,000/- to the respondent (hereinafter to be referred to as the Assurance Company). Since the complainant had died within 30 days from the commencement of the insurance policy, under the terms of the policy, the Assurance Company took the opinion from their own doctor on the panel, namely; Doctor Kuldeep Maria from Maria Clinic, . THE Mall, Shimla, who had given opinion that heart blockade can occur at any time without showing any previous signs or any cardiac history. According to the complainant, the claim submitted by her husband was sanctioned by the earlier Divisional Manager of the Assurance Company and the complainant was duly informed that the payment shall be made from Solan Office and later on the complainant was informed verbally that the file wherein medical claim was sanctioned was mis-placed and the complainant was asked to further furnish details and duplicate copies of the documents alongwith receipts of the claim. However on 25.10.90, the complainant was informed that the claim had not been sanctioned and ultimately the medical claim preferred by her husband for an amount of Rs. 33,000/- has been finally repudiated. The Assurance Company has repudiated the claim of the complainant on two grounds; (1) the insured (deceased) was suffering from heart ailment before taking the insurance cover; and (ii) the Assurance Company was not liable to pay the medical claim arising during the first 30 days from the commencement of the policy, as such claim was expressly and specifically excluded from the insurance cover. These material facts were concealed by the insured (deceased) at the time of insurance and because of concealment of material facts, contract of insurance became null and void. The District Forum has found both the aforementioned issues against the complainant.

The question that arises for consideration is whether the findings given by the District Forum are correct.

THE District Forum, in order to reach its conclusions, has relied upon the evidence RW 1 statement of Shri Jagdish Kumar who brought the Medical record of G.B. Pant Hospital, New Delhi and the documents Annexures R.1. to R. 8 from. the hospital record. According to these documents the insured (deceased) was admitted in G.B. Pant Hospital from 26.12.87 and discharged on 31.12.87 and this Medi-claim policy was obtained from the Assurance Company on 31.12.87 at Solan - the same date on which the insured (deceased) was discharged from G.B. Pant Hospital i.e. 31.12.87. It is further not in dispute and stands fully established from the evidence that the insured (deceased) was admitted in Batra Hospital on 7.1.88 and operated on 19.1.88. However, he died later on 30.8.88 after more than 7 months of the operation. According to the District Forum, copies of documents Annexures R1 to R8 stand duly proved by Shri Jagdish Kumar RW 1, Incharge of Medical Record Department, who has seen the handwriting of one Dr. O.P. Jain and Dr. S. Tyagi who have signed original OPD record which has been exhibited as Exhibit R-2 and their signatures are R2/1 and R respectively. THE District Forum has relied upon this evidence and come to the conclusion that before the purchase of Medi claim policy on 31.12.87, the deceased was examined in G.B. Pant Hospital, New Delhi for heart ailment and he knew that he was suffering from heart ailment and that he suppressed these material facts at the time of purchase of the policy and, therefore, the claim of the claimant has rightly been rejected. We are afraid we are unable to agree to the findings given by the District Forum in this context.

THE documents on record produced by the Assurance Company as Ex. R1 to R6 particularly Ex. R4 to R6 are not quite legible nor are such documents original. No doubt such documents have been produced from the record by the Incharge of the record of G.B. Pant Hospital who has proved the OPD record copy Ex. R 2 and also identified the handwriting of Dr. O.P. Jain and Dr. S. Tyagi which, according to the Record keeper, reveals ailment of the patient i.e., the patient had trouble CAD which is coronary artery disease old (sic.) and A/S MI Angina. However, neither Dr. O.P. Jain nor Dr. S. Tyagi have been produced to testify on this aspect by the Assurance Company. Furthermore, according to T.M.T. test of the patient on 3.11.87 (Ex. R5), test was found positive, but again the person who performed T.M.T. Test has not been produced. No doubt, these documents have been proved by the Record-keeper but the truth of correctness or otherwise of these documents has to be ascertained from the evidence. As stated above, neither Dr. O.P. Jain or Dr. S. Tyagi who has prepared OPD record, have been produced nor the expert who has performed T.M.T. Test on the patient was examined or cross-examined. It is true that Dr. O.P. Jain has left the hospital according to RW 1, but Dr. S. Tyagi is still working there. Moreover, there is nothing to show that an effort has been made to trace out Dr. O.P. Jain. THE best evidence in this respect could have been given by Dr. O.P. Jain and Dr. S. Tyagi and also the person who has performed T.M.T. Test and they should have been produced for examination or their affidavits should have been filed. Had they been examined and cross-examined, only in that situation such evidence regarding the ailment of the patient could have been given weight. It is settled law that the opinion of the Doctor - an expert - unless he is subjected to the test of examination and cross-examination in a Court, cannot be considered as authentic and such evidence cannot be relied upon and form the basis of a finding. Merely the proof of documents does not mean that the contents thereof are necessarily true. It is a common knowledge that for insuring a life, a proposal is to be made by the life sought to be insured, the proposer is to be medically examined by a medical examiner approved by the insurer who is to give a confidential report to the insurer and the premium amount required is to be paid. Possessed of these two documents, insurer is to decide the question of acceptance of the proposal. Once the proposal is accepted, contract is complete and policy is to be issued. The case of the complainant is that the medical claim was infect sanctioned by the Divisional Manager and that the rejection of this claim was an after-though. The medical claim was sanctioned by the earlier Divisional Manager presumably on the basis that there was no suppression of any material facts. Even the Doctor who has examined the deceased for such a policy must not have given an adverse report that the husband of the complainant had a history of heart ailment and he was suffering from Agina as otherwise the policy would not have been accepted by the competent authority.

WITH a view to find out this confidential report given by the Doctor of the Assurance Company at the time of taking the policy and ultimately approved by the competent authority, we wanted to see the record of the case and the learned Counsel for the Assurance Company was given opportunity to produce the record but that has not been produced on the ground that it has been misplaced nor was this record produced before the District Forum. This record would have revealed the confidential report of the Doctor about the state of health of the insured (deceased) and the statement made by the insured to the Doctor at the time of taking the policy and that further this claim was sanctioned by the authority concerned as alleged by the complainant. Nothing cogent has been shown as to how the record has been mis-placed and what efforts have been made to find out this record and the Assurance Company is unable to trace it. In the absence of production of such a file, adverse inference has to be necessarily drawn under the law against the Assurance Company on the above aspects of the matter.

HAVING regard to the aforementioned facts that the Doctors who prepared and signed the OPD record and performed other tests and treated the insured (deceased) were not produced for examination or cross-examination nor have their affidavits been filed and the so-called misplacing of the relevant file by the Assurance Company and the placing of the copies of the Hospital documents on record which themselves are not very legible and totality of circumstances stated above, we are of the firm opinion that it is not safe to conclude that the insured (deceased) has suppressed the material facts at the time of making the proposal or taking the policy. The next contention of the Assurance Company is that the deceased suffered from the disease of heart and operated upon on 19.1.88 in Batra Hospital, New Delhi within one month from the commencement of the insurance policy and under the terms of the policy, such claim is not admissible. Such contention is equally not tenable in the facts and circumstances of the case.

The Assurance Company has relied upon Annexure R4 and the exclusion clause therein, which is reproduced below: "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: 1. 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 order to attract the above exclusion clause, the Assurance Company has to show that the insured suffered from any disease during the first 30 days of the commencement date of the policy. We have already, for various reasons, held that it is not safe to say that the insured was suffering from heart ailment/Angina etc. and that he knew about this heart ailment on 31.12.87 when the insurance policy was taken by him or such proposal was made by him to the Assurance Company. Therefore, this exclusion clause will not apply. Furthermore, it may be noticed from the complaint that the doctor on the panel of the Assurance Company, namely; Doctor Kuldeep Maria from Maria Clinic, The Mall, Shimla, has given opinion that the heart blockade can occur at any time without showing any previous signs or any cardiac history. It may be pointed out here that such averments have been made in para 3 of the complaint which have not specifically been denied in the reply by the Assurance Company. IN these circumstances, the insured (deceased) could not have known the existence of the disease or any symptom thereof at the time of making the proposal for the Assurance Company. Requisite record has also not been shown as discussed above. No doubt, the Assurance Company has also examined one B.K. Kachroo, RW 2 and the record relating to Shri Ramesh Chand Mohindroo has been produced. However, again no doctor who operated the patient on 19.1.88 under the package deal programme and treated him had been produced and for the reasons stated earlier, in the absence of the doctor who has treated, examined and operated upon the patient having not been produced nor their affidavits having been filed, the truth of the contents of the record cannot be accepted. At any rate, the record produced of Batra Hospital does not inspire any confidence. There is no dispute that the insured (deceased) had been operated for heart surgery in Batra Hospital on 19.1.88 and Rs. 33,000/- was charged from him for such operation and further there is no dispute that this amount is covered under the terms of the insurance policy and, therefore, he is entitled to this amount.

IN view of the foregoing, the appeal is allowed and the judgment of the District Forum is set aside and that the Assurance Company is directed to pay Rs. 33,000/- to the complainant from the date of filing the complaint i.e., with effect from 3.4.91 alongwith interest @ 18% per annum till actual payment. The complainant shall be entitled to costs of Rs. 1000/-. The amount shall be payable either to the complainant direct within three weeks from the date of this order or the same shall be deposited with this Commission within the aforementioned period. Appeal allowed.