NATIONAL INSURANCE COMPANY LTD vs Sardar Kulbir Singh

COMPLAINANT/respondent obtained a Mediclaim (Hospitalisation and Domicilary Hospitalisation Benefit) Policy from the petitioner-Insurance Company for the first time on 6.9.1994 for Rs. 1,00,000 which was effective till 5.9.1995. Thereafter, respondent kept on subscribing to the said Mediclaim Policy and the last spell of the Policy was for the period 24.9.1997 to 23.9.1998 and the insured amount was enhanced to Rs. 2,00,000. The respondent suffered from some Cardiac problem and was admitted to Escorts Heart Institute and Research Centre, Okhla on 15.7.1998 and, after necessary tests, had undergone three Artery By-pass Grafting on 15.7.1998 where he incurred an expense of Rs. 1,73,850 regarding which respondent filed a claim with the petitioner-Insurance Company. Petitioner repudiated the claim on twin grounds, firstly, that the last Policy was obtained after a gap of 17 days as the earlier Policy had expired on 7.9.1997 and the same was renewed on 24.9.1997 and, secondly, that the respondent had suppressed the fact that he was suffering from Heart problem while obtaining the Mediclaim Policy and, as such, the case of the respondent falls squarely within the ambit of Exclusion Clause 4 of the Terms and Conditions of the Policy. Being aggrieved, complainant/respondent filed the cfomplaint before the District Consumer Disputes Redressal Forum (Central), Maharana Pratap Bus Terminal, Mezzanine Floor, Kashmere Gate, Delhi (for short ''the District Forum'').

ON being served, petitioner filed its Written Statement stating that the rejection of the claim of the respondent was made after thorough investigation of the case after due application of mind. That while obtaining the Mediclaim Policy, the respondent deliberately concealed the facts about his illness and fully knowing about his Heart problem, respondent increased the insured amount from Rs. 1,00,000 to Rs. 2,00,000 surreptitiously. That it was on the detailed Report of their Panel Doctor, Dr. Vinod Gandotra that the claim of the respondent was repudiated. Thus, denying the allegation made in the complaint, petitioner prayed for dismissal of the complaint.

DISTRICT Forum, after taking into consideration, the pleadings and the evidence led by the parties, allowed the complaint, holding petitioner-Insurance Company guilty of deficiency in service. The petitioner was directed to pay the sum of Rs. 1,73,000 to the respondent along with interest @ 9% p.a. within 3 months of the filing of the claim till the date of payment. Rs. 1,000 were awarded as litigation expenses.

AGGRIEVED by the Order passed by the District Forum, petitioner-Insurance Company filed the Appeal before the State Consumer Disputes Redressal Commission, Delhi (for short ''the State Commission'') which has been partly allowed directing the petitioner-Insurance Company to pay Rs. 15,000 besides the actual claim of Rs. 1,73,850 which shall include the cost of litigation also. It was held that in such cases, in terms of Section 14 of the Consumer Protection Act, 1986 (for short ''the Act''), instead of granting interest on the awarded amount, lumpsum compensation should be awarded. The view taken by Hon''ble the Supreme Court of India in Sovingtorg (India) Limited v. State Bank of India, New Delhi, reported in II (1999) CPJ 4 (SC)=VI (1999) SLT 545=(1999) 6 SCC 406, was relied upon in which it was held that unless and until there are such terms of contract as to the liability to pay interest, the interest cannot be awarded under the provisions of the Act. Interest can be awarded, if there are strong equitable grounds.

AGGRIEVED by the Order passed by the State Commission, petitioner-Insurance Company has preferred this Revision Petition.

COUNSEL for the parties have been heard at length.

BEFORE the State Commission, two fold arguments were raised, one, that the Policy obtained by the respondent was not continuous because the last Policy was obtained on 24.9.1997, after a gap of 17 days as the earlier Policy had expired on 7.9.1997. The other submission urged was that the respondent was suffering from heart problem prior to the taking of the Policy and, as such, the case of the respondent fell squarely within the ambit of Exclusion Clause 4 of the "Terms and Conditions" of the Policy.

LEARNED Counsel for the petitioner did not press the first submission which was urged before the State Commission and, therefore, we need not deal with it.

LEARNED Counsel for the petitioner contends that the Fora below have erred in holding that the petitioner-Insurance Company had wrongly and without any justification repudiated the claim of the respondent. It was submitted that the petitioner had repudiated the claim on the basis of the Report of the Panel Doctor who had specifically concluded in his Report that the disease for which the claim was filed was pre-existing as on the date of taking of the Insurance Policy. That after receiving the Discharge Summary, in which it was recorded as under: "Resume of History Mr. Narula is a 58 years old gentleman who is a known hypertensive, known diabetic, non-smoker with pleasing personality. He had been having chronic stable angina on exertion for the 10 years which has been on an increase lately. There is no history of myocardial infarction in the past. He was advised further investigations. Invasive Cardiological Investigations The case of the respondent was referred to Dr. Vinod Gandotra, who is a Panel Doctor of the petitioner-Insurance Company. The said Doctor, after examining the Discharge Summary, came to the conclusion that the disease for which the respondent was suffering was a pre-existing disease and, therefore, the claim was not tenable.

DR. Vinod Gandotra, Panel Doctor, in his opinion, has reported as under: "I have gone through in details all the attached papers of abovesaid claimant Mr. Kulbir Singh Narula who had undergone hospitalization from 10.7.1998 to 21.7.1998 in Escorts Heart Institute with the complaints of Chronic Stable Angina on Exertion for the last 10 years and has been increasing lately. No history of Myocardial Infarction. Known case of Diabetes Mellitus and Hypertension. During hospitalization after thorough examination and investigations including Coronary Angiography he was diagnosed a case of ''CORONARY ARTERY DISEASE'' TRIPLE VESSEL DISEASE*CHRONIC STABLE ANGINA*NIDDM*HYPERTENSION and for the same he was operated for BYPASS surgery on 15.7.1998 and managed afterward with the supporting Life Saving Medicines. Initially he visited OPD of EHIRC on 21.4.1998 when he was advised comprehensive Cardio Check-Up and afterward he had Angiography on 11.6.1998 which confirms the diagnosis of CAD-Triple Vessel Disease. He had Positive TMT and Stress Thallium. This is a case of management of Chronic Stable Angina of 10 years with the Aggravation of the symptoms which finally turned out CAD-Triple Vessel Disease and for the same he had Bypass Surgery. As per Policy Copies he was under Mediclaim Coverage since 6.9.1994 to 5.9.1994 and again from 8.9.1995 to 7.9.1997 in continuation and Renewed from 24.9.1997 i.e. with the Gap of 17 days. Thus, the present Policy would be considered as a Fresh and First Year Mediclaim Coverage. Thus claim is falling under PRE-EXISTING DISEASE. Claim is not tenable under the purview of Revised Mediclaim Policy and can be REPUDIATED as per terms and conditions of Revised Mediclaim Policy on the ground of PRE-EXISTING DISEASES."

(emphasis supplied)

EXCLUSION Clause 4.1 of the Terms and Conditions of the Policy, reads as under: "4.1 Such diseases which has been in existence at the time of proposing this insurance, pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-condition also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of the pre-existing condition."

ACCORDING to the learned Counsel for the petitioner, it was a case of management of Chronic Stable Angina of 10 years with the aggravation of symptoms which finally turned out CAD-Triple Vessel Disease for which the respondent had undergone Bypass Surgery. That the claim filed by the respondent could not be entertained in view of the fact that the disease was pre-existing.

WE do not find any substance in this submission. No evidence has been produced by the petitioner to show that the respondent was suffering from Chronic Stable Angina since 1993, i.e., 10 years prior to the taking of the Mediclaim Policy for the first time in the year 1994. Petitioner has not produced the Proposal Form which was filled in by the respondent in the year 1994 or in the year 1998 to show that the respondent was guilty of suppression of any material fact. Affidavit of the Doctor who had prepared the Discharge Summary has not been filed. It is not disclosed in the Discharge Summary as to on whose information the Doctor had recorded the fact that the respondent was suffering from Chronic Stable Angina for the last 10 years. No reference has been made to any previous medical record in the Discharge Summary to show that the respondent was suffering from Chronic Stable Angina for the last 10 years. The Discharge Summary does not disclose as to on what basis it has been stated that the respondent was suffering from Chronic Stable Angina.

PETITIONER did not file any Affidavit in support of the Written Statement filed by it. It did not cross-examine the respondent. The opinion of Dr. Vinod Gandotra, Panel Doctor of the petitioner-Insurance Company, is based on the Discharge Summary. He had not examined the respondent himself. The opinion recorded by Dr. Vinod Gandotra regarding the illness of the respondent is based on mere hearsay. No concrete evidence has been produced to show that the respondent was suffering from Chronic Stable Angina.

THE respondent suffered from heart problem on 10.7.1998, which necessitated his admission in the Escorts Heart Institute where Artery Bypass Grafting was conduction on him on 15.7.1998. It shows that the respondent developed CAD Triple Vessel Disease after 4 years of taking of the Policy. Even if, it is assumed that the respondent was having history of Chronic Stable Angina Pain on Exertion for the last 10 years, the same does not go to show that imminent surgery was required and for that purpose the Policy was taken by the respondent.

IT is not the case of the petitioner that the respondent was guilty of suppression of facts. The case put forth is that there was pre-existing disease. That the case of the respondent falls under the Exclusion Clause 4 as the respondent was suffering from a pre-existing disease. As mentioned above, the petitioner has failed to produce any evidence, whatsoever, except what has been stated in the Discharge Summary, to show that the respondent was suffering from Chronic Stable Angina.

INSTEAD of confining his Report as to whether the disease from which the respondent was suffering was pre-existing or not, Dr. Vinod Gandotra has gone to the extent of saying that the claim of the respondent be rejected on the ground that the Policy was not continuous as the same was taken after a gap of 17 days after the expiry of the previous Policy. It did not fall within his domain to advise the petitioner to reject the claim on that count. He was a medical practitioner and should have confined his opinion to medical matters only.

FOR the reasons stated above, we do not find any merit in this Revision Petition and dismiss the same leaving the parties to bear their own costs.

THE petitioner-Insurance Company is directed to pay the awarded amount along with interest to the respondent/complainant after deducting the amount already paid, if any, within 6 weeks from the date of passing of this Order failing which the respondent would be at liberty to get the decretal amount by filing Execution Application under Sections 25/27 of the Act. Revision Petition dismissed.