NATIONAL INSURANCE CO LTD vs Girin R Shah

THIS revision petition has been filed by the insurance company, which was OP before the District Forum in the complaint lodged by the respondent Girin R. Shah. Sh.Ramesh P. Shah, who was father of the complainant, had taken a Mediclaim Insurance Policy of the OP-insurance company for Rs.2 lakh in the year 1998, which was renewed every year and the last renewal was for the period from 01.09.2003 to 31.08.2004. Since the father of the complainant had suffered from urinary infection, he was admitted in the Rahul Nursing Home on 03.05.2004 and was given treatment for five days as an indoor patient. He had developed an abscess inside the anus and also had infection. He was operated upon on 07.05.2004 and was given treatment for the urinary infection as an indoor patient upto 24.05.2004 and thereafter he was discharged and continued the treatment as an outdoor patient. According to the complainant, his father was admitted again on 04.06.2004 since the urinary infection increased but because of improvement in his health he was discharged from the hospital on 15.06.2004. Later on, on 08.08.2004, when his father had blood vomit he was taken to the Jivraj Hospital where he expired. The complainant had spent Rs.1,10,000/- for the operation of the anal abscess and for the urinary infection and hence he submitted the claim along with necessary documents to the insurance company on 15.09.2004. THIS claim was, however, repudiated by the insurance company on 19.10.2004 on the ground that the father of the complainant had pre-existing disease and since his insurance policy contained exclusion clause in respect of certain diseases the claim was rejected. Alleging that the rejection of his claim by the insurance company was illegal and improper and hence there was deficiency in service on the part of the insurance company, the complainant lodged a complaint with the District Forum seeking relief for payment of Rs.1,09,895/- with interest and compensation.

THE insurance company filed its reply to the complaint before the District Forum and resisted the claim made therein denying all allegations as false. It was submitted that based on the declaration made by the father of the complainant at the time of taking the policy about the pre-existing disease, hypertension, IHD, cataract and diabetes were put under the exclusion clause in the insurance policy. According to the insurance company, since the deceased insured was suffering from high blood pressure, IHD and diabetes, he was not entitled to get the mediclaim expenses under the exclusion clause because he was given treatment for diabetes, blood pressure and perinal abscess etc. and also had hypoglemia which had led to further complications. In view of this, according to the insurance company, the insured had died on account of his pre-existing disease, which had been excluded under the insurance policy and hence the claim put forth by the complainant had to be repudiated since the insurance company is not liable to pay the amount of expenses in respect of such diseases.

ON appraisal of the pleadings and evidence adduced by the parties before it, the District Forum dismissed the complaint vide its order dated 31.01.2008.

AGGRIEVED by this order, the complainant challenged the same by filing an appeal before the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (State Commission, ''for short'') which vide its impugned order dated 13.09.2011 allowed the appeal and set aside the order of the District Forum. The State Commission vide its impugned order directed that the insurance company should pay the rest of the amount by deducting the expenses for diabetes along with interest @ 9% from the date of repudiation of the claim till the date of payment. As stated above, aggrieved by this order of the State Commission, the insurance company has filed the present revision petition before the National Commission.

WE have heard Mr. Vishnu Mehra, learned counsel for the petitioner and perused the record.

THE State Commission while accepting the appeal of the respondent-complainant and reversing the order of the District Forum, has recorded the following reasons in support of the impugned order:- "(7) As per the say of the appellant, looking to the evidences of the treatment given to the father of the appellant and the exclusion policy condition in the policy, the order given by the Learned Forum is not just and is a failure of justice. The Learned Forum has not properly evaluated the evidences produced and it is a failure of justice. Therefore, the order of the Learned Forum is required to be rejected. We agree with the say of the appellant and do not agree with the order passed by the Learned Forum. The respondent Insurance Company has not produced the affidavit of the doctor, documentary medical evidences or any other evidences in support of their say that the abscess in the anus had occurred due to diabetes and therefore, the say of the opponent that the deceased insured was suffering from pre-existing disease cannot be accepted. We hold that the Policy Condition No.4.1 cannot be applied and by disallowing the claim for the expenses for the treatment, the Insurance Company has shown deficiency in service. The Insurance Company has mentioned D.M., H.T., I.H.D. diseases in the exclusion clause of policy condition but has not mentioned about the related disease and, therefore, we hold that the Insurance Company is not liable to pay the amount for the treatment of diabetes and the Heritage Health Service Pvt. Ltd. has wrongly repudiated the claim. As per the settled principle of law, it is the responsibility of the Insurance Company to prove the pre-existing disease and we hold that they have failed to prove the same, in the present case. Moreover, it is not the case of the appellant that the Heritage Health Service Pvt. Ltd. (TPA) is not claim-settler. The appellant has not produced the mediclaim papers for getting the claim before them. The appellant has not joined the Heritage Health Pvt. Ltd. as a party. The respondent National Insurance Company has issued the policy only. They are not claim-settler. Though the appellant was aware about the same, Heritage Health Pvt. Ltd. is not joined as a party in the complaint but it is a claim settler formal party. Therefore, by not joining them as the party, it does not affect the merits of the case. At the end of the aforesaid discussion, we hold that the respondent Insurance Company has shown deficiency in service by wrongly rejecting the claim and we hereby interfere with the order passed by the Learned Forum and we wish to amend the same and therefore, pass the following order: ORDER 1. The appeal No.369/2008 is hereby allowed. 2. The order dtd. 31.1.2008 passed by the Consumer Disputes Redressal Forum, Ahmedabad (Rural) in Complaint No.209/2005 is rejected. 3. The respondent should pay the rest of the amount by deducting the expenses for diabetes along with interest @ 9% from the date of repudiation dtd. 19.10.2004 till the date of payment. 4. No order as to costs of appeal."

DURING the course of hearing, learned counsel for the petitioner accepted that there is no allegation of concealment of material information about his health on the part of the deceased insured at the time of giving his proposal. In view of this, repudiation of the claim would be justified only and only if the insurance company could establish the link between any pre-existing disease and the abscess for which he was operated. Since the insurance company failed to do so, the State Commission held that Condition No. 4.1 of the insurance policy document could not be applied for rejecting the claim of expenses for the treatment and hence to this extent there was deficiency in service on the part of the insurance company. We agree with the view taken by the State Commission. In the circumstances, no fault could be found with the impugned order of the State Commission, which is fair and just in the given facts and circumstances and does not call for any interference. The revision petition therefore stands dismissed in limine. No costs.