NATIONAL INSURANCE CO LTD vs Sarlaben Jayantibhai Patel

BY this revision petition, we propose to dispose of above -noted revision petitions involving similar question of law and facts.

BRIEFLY stated, facts relevant for the disposal of this revision petition are that Shri Jayanti Kumar Manibhai Patel obtained Hospitalization and Domiciliary Hospitalization Benefit Policy covering himself as well as his wife, namely, respondent/complainant Sarlaben Jayantibhai Patel on 15.4.2001. Shri Jayanti Kumar Manibhai Patel got the policy renewed from time to time without any break. In the year 2003 the respondent/complainant developed some problem in her legs and she was diagnosed Bilateral Osteoarthritis Knee (Left) for which she had to undergo total knee replacement (Left) at Ashirvad Hospital. She was admitted in the hospital on 28.2.2003 and discharged on 13.3.2003. However, her treatment continued till 16.4.2003. Complainant incurred total expense of Rs.2,50,000/ - for her surgery, treatment and medicines. An insurance claim was filed but it was repudiated. Being aggrieved the complainant filed consumer complaint No.720/2006 in Anand District Consumer Disputes Redressal Forum.

SUBSEQUENT to the replacement of knee (Left) the complainant developed problem in her right knee for which she had to undergo knee replacement surgery (Right). For the said treatment she incurred total expense of Rs.2,87,793/ -. An insurance claim in respect of the said surgery was also filed. The opposite party, however, repudiated the claim. Being aggrieved of repudiation of said claim complainant filed consumer complaint No.304/2008 at Anand District Consumer Disputes Redressal Forum. The petitioner/opposite party contested the respective complaints by filing written statements. In the written statement, it was admitted that Jayanti Kumar Manibhai Patel had obtained medi -claim policy. Other allegations on merits were denied. The opposite party also took the plea that the consumer complaints were not maintainable because of non -joinder of Jayanti Kumar Manibhai Patel who has purchased the insurance policy.

LEARNED District Forum vide order dated 12th December, 2007 allowed the complaint No.720/2006 filed by the complainant and directed the petitioner insurance company as under: - "It is hereby ordered that the complainant be paid Rs.1,93,800/ - (Rupees One Lakh Ninety Three Thousand Eight Hundred only) alongwith 9% interest from the date of complaint 12/10/2006 till realization by the opponent insurance company and the opponent insurance company has to pay accordingly. Moreover, the complainant be paid Rs.1,000/ - (Rupees One Thousand Only) towards complaint expenses only and opponent insurance company has to pay accordingly."

LEARNED District Forum vide order dated 11th May, 2010 allowed the consumer complaint No.304/2008 and directed the petitioner insurance company as under: - "It is hereby ordered that the complainant be paid Rs.2,37,793/ - (Rupees Two Lakhs Thirty Seven Thousand Seven Hundred Ninety Three only) alongwith 9% interest from the date of complaint 6/12/2008 till realization by the opponent insurance company. Moreover, Rupees 2,000/ - (Rupees Two Thousand only) towards mental stress and Rs.1,000/ (Rupees One Thousand Only) towards complaint expenses only be paid to the complainant."

BEING aggrieved of the respective orders of the District Forum, the petitioner insurance company filed separate appeals being Appeal Nos.1056/2010 and 514/2009. Both the appeals were dismissed and the orders passed by the District Forum were confirmed.

BEING aggrieved of the dismissal of the appeals, the petitioner insurance company has preferred the above -noted revision petitions.

WE have heard respective counsels for the parties and perused the record.

DR . Sushil Kumar Gupta, Advocate for the petitioner has drawn our attention to the medical records of the complainant, opinion submitted by Dr. Ronak Singh and the repudiation letter dated 12.6.2006 and submitted that the impugned orders of the Foras below are not sustainable because the orders have been passed in total disregard of the above noted evidence and the Foras below have failed to appreciate that the case of the respondent/complainant is not a case of the knee replacement resulting due to the injuries sustained in an accident but is a case of Bilateral Osteoarthritis of respective knees. Learned counsel has contended that the Foras below have failed to appreciate that Osteoarthritis of knees is a chronic disease which takes quite a long time to develop and cannot occur because of accident. It is also argued that the Foras below have failed to appreciate that the insurance cover was obtained by concealment of the previous ailment suffered by the complainant i.e. Bilateral Osteoarthritis, diabetes mellitus and hyper tension.

WE do not find any merit in the above contention. Undisputedly, the complainant was covered under the insurance policies which were initially taken by her husband on 15.4.2001 and thereafter renewed from year to year without any break. It is also not disputed that the complainant had actually undergone the knee replacement surgery incurring the treatment expenses claimed from the petitioner. So far as the plea of the petitioner that the insurance policies were obtained by concealment of material fact regarding previous ailment is concerned, we have gone through the medical record of the complainant placed on the record of respective files. There is nothing in the record which may suggest that on 15.4.2001 when proposal form was submitted complainant Sarlaben Jayantibhai Patel was suffering from any ailment. Therefore, it cannot be said that her husband had obtained medical insurance qua her by concealment of material facts. Admittedly, the complainant has undergone replacement of both the knees at different occasions. Therefore, her claim for reimbursement of medical reimbursement in terms of insurance contract is justified and the petitioner by repudiating the claim has committed deficiency in service. Our aforesaid view is strengthened by the fact that even in the repudiation letter dated 12.6.2006, copy of which is placed on record, concealment of material fact is not taken as a ground for repudiating the claim.

LEARNED counsel for the petitioner has further contended that admittedly the insurance policies were obtained by husband of the respondent Jayanti Kumar Manibhai Patel and, therefore, the consumer complaints filed by the respondent without impleading her husband as a party are not maintainable without impleading her husband as his presence is not necessary for just adjudication of the complaint.

WE do not find merit in the above contention. Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 defines the term Consumer qua a service provider. The section provides that a person is a consumer who hires or avails services for consideration and includes any beneficiary of such services other than the person who hires of avails such services. Admittedly, subject policies were taken for the benefit of the respondent also. Therefore, she being the beneficiary of the insurance contract squarely falls within the definition of Consumer. Section 2 (1) (d) of the Consumer Protection Act, 1986 provides that a consumer complaint can be filed by a consumer. Since the subject complaints were filed by the respondent in her capacity as beneficiary of the insurance contract, those could be rightly maintained. 13. In view of the discussion above, we do not find any material irregularity or jurisdictional error in the impugned orders which are subject matter of above noted revision petitions. Thus, there is no reason for interfering with those orders.

REVISION petitions are dismissed.