New India Assurance Co. Ltd. vs ANIL BARUAH

THIS appeal has been filed by appellant New India Assurance Co. Ltd. under Section 15 of the Consumer Protection Act, 1986, against the judgment dated 6.9.1996 of District Consumer Disputes Redressal Forum (for short, District Forum), Kamrup in C.P. Case No. 107/95.

TO state briefly the facts of the case are as follows. Complainant Shri Anil Baruah (respondent herein) took a mediclaim policy from opposite party (for short O.P.) Insurance Company (appellant herein) covering his four family members including his son Sumeet Baruah for a period of one year only from 7.2.1995 to 6.2.1996. In May, 1995 his son Sumeet fell ill and he was admitted to a private hospital for medical treatment. It was detected by the doctor that the complainant''s son was suffering from bleeding internal morrhoids (internal piles). He had undergone treatment by blood transmission followed by surgical operation. The opposite party Insurance Company was duly informed of the hospitalisation and medical treatment on 8.5.1995 on discharge of the patient from the hospital after medical treatment the complainant filed a claim to opposite party for Rs. 11,423/- only against medical bill of the hospital. The opposite party Insurance Company (appellant herein) repudiated the claim on the ground that the disease was pre-existing and that is occurred in the first year of the policy, which is excluded under Clause 4.12 of the policy conditions. The complainant objected to it and wrote a letter to opposite party No. 2 on 25.7.1995 stating that the existence of the disease prior to taking of the policy was not known either to the complainant or to his son Sumeet. So, he requested for review of the decision on his claim. On 22.8.1995 the opposite party No. 2 informed the complainant that his claim could not be entertained as per opinion of the panel doctors of the Insurance Company

Being aggrieved at the decision of the opposite party Insurance Company the complainant filed a complaint in the District Forum alleging deficiency in service on the part of the Insurance Company and praying relief of payment of the hospital bill amount, interest @ 18% p.a. thereon, compensation of Rs. 5,000/- and costs of Rs. 1,000/- only by the opposite party. The opposite party Insurance Company filed written version stating the reason for repudiation of the claim. The complainant filed a rejoinder to the written version alongwith some relevant documents.

UPON hearing both the parties and considering the pleadings and relevant papers on record the learned District Forum delivered the impugned judgment on 6.9.1996 holding the opposite party Insurance Company (appellant herein) liable for deficiency of service and directing them to pay the claim amounting to Rs. 11,423/- alongwith interest @ 18% p.a. from the date of submission of the claim, compensation of Rs. 1,000/- and costs of Rs. 500/- to the complainant. The present appeal is against this impugned judgment of the District Forum. We have heard Mr. S. Dutta, learned Counsel for the appellant and Mr. K.C. Mahanta, learned Counsel for the respondent. We have gone through the Memorandum of Appeal, a photocopy on "Haemorrhoids Disease" from a book, the relevant portions in the book "A concise Textbook of Surgery" by S. Das and Bailey and Loves "Short Practice of Surgery". Besides, we have perused the complaint, written version, rejoinder of the complainant to the written version of opposite party, other relevant papers in the original case record of the District Forum. While carefully going through the impugned judgment, we have taken into consideration the contents of the Medical books referred to and decisions cited by the learned District Forum.

THE controversial point in the instant case is whether the respondent/complainant suppressed the fact that at the time of obtaining the policy the disease was not in existence and played fraud on the Insurance Company. After detailed discussion on this point, relying on the certificate of the complainants'' doctor who treated the patient and consulting the text book said to be authoritative on the subject the learned District Forum came to the finding that the patient or the complainant had no prior knowledge of the disease and there was no concealment of facts. While referring to the decision dated 11.6.1993 of West Bengal State Commission, reported in III (1993) CPJ 1791, the District Forum held, "we cannot accept the contention of the opposite party about knowledge of pre-existence of the disease of the complainant''s son and held the opposite party by placing much reliance upon the opinion of the same panel doctor has committed error in facts". We are inclined to agree with the District Forum that when the complainant prayed the Insurance Company for review of its decision the matter should have been referred to a panel of two or three other doctors instead of the same doctor who originally gave the opinion. In our opinion the District Forum rightly relied on the note dated 21.1.1996 given by Dr. M.C. Agarwal stating that Shri Sumeet Baruah was examined by him in May, 1995 on complainant of general weakness etc. and that he did not complain of "bleeding piles", as also the detailed letter dated 19.1.1996 of Dr. D.P. Goswami, an eminent surgeon. On the other hand, the certificate of Insurance Company''s panel doctor, who is an opthalmologist and E.N.T. specialist, has not been accepted. We find corroboration of the contents of Dr. D.P. Goswami''s aforesaid letter in the medical text books referred to above. It would be pertinent to quote below the relevant portion from "A Concise Text Book of Surgery" (Page 1021) by S. Das. "2. Prolapse-is a later symptom. In the beginning prolapse is minimal. According to prolapse, haemorrhoids can be divided into four degrees. First Degree-Haemorrhoids does not come out of the anus. Second Degree-Haemorrhoids come out only during defaecation and is reduced spontaneously after defaecation. Third Degree-Haemorrhoids come out only during defaecation and do not return by themselves, but need to be replaced manually and then stay reduced. Fourth Degree-The haemorrhoids that are permanently prolapse. At this stage great discomfort is complained of with a feeling of heaviness in the rectum. 3. Pain is not characteristic of haemorrhoid unless there is associated thrombosis or there is associated fissure-in-ano. 4. xxx xxx xxx 5. xxx xxx xxx On Inspection, internal haemorrhoid without prolapse will not show any abnormal feature. During second and third degree haemorrhoid, internal haemorrhoids may be seen only when patient strains and that too transiently and the prolapse disappears after the straining is over. During fourth degree the prolapsed piles can be seen in 3, 7 and 11 O''clock positions. Digital Examination cannot feel an uncomplicated internal pile pile unless it is thrombosed." Protocapic examination, however, reveals the existence of piles. Usually digital and protoscopic examinations are not routinely done in a case, who is normal, even at a doctor''s clinic unless there are signs and symptoms. Based on the expert opinion quoted above, we are inclined to believe that a patient is not likely to know about his internal piles even upto the third degree unless the digital and protoscopic examinations are done. In the instant case we find from the facts and circumstances that the possibility of the complainant''s son not knowing about the existence of his internal piles at the time of taking the insurance policy cannot be ruled out. We are rather inclined to believe that neither the complainant nor his son knew anything about existence of the disease and in view thereof the question of the complainant''s suffering the factum of existence of the disease at the time of obtaining the policy does not arise. We do not find force in the contention of the appellant Insurance Company that the claim in this mediclaim policy is not entertainable as the disease occurred in the first year of the policy in view of the fact that the mediclaim policy itself is for a period of one year only. The disease and the treatment thereof within that year is well covered by the policy. We fail to understand the implications of this clause in the policy when the disease is proved to be not pre-existing. In view of our decision of non-existence of the disease at the time of taking the policy the occurrence of the disease in the first year of the policy is found to be immaterial. It does not affect the complainant''s claim adversely. Be that as it may, the fact remains that the complainant''s claim is justified and the opposite party/appellant Insurance Company is liable to pay as decided by the District Forum with slight modification indicated below.

WE find that the learned District Forum rightly held the appellant Insurance Company liable for deficiency of service within the meaning of Sections 2(1)(g) and (o) of the Consumer Protection Act, 1986, for wrongly repudiating the mediclaim of the complainant/respondent. There is no infirmity or illegality in the impugned judgment of the District Forum to call for any interference from this Commission. WE, however make following modifications in the award. The appellant Insurance Company shall pay- (i) Interest at the rate of 12% per annum only instead of 18% with effect from the expiry of two months from the date of submission of the claim; (ii) An additional cost of Rs. 1,000/- only in addition to whatever awarded by the District Forum, the same being towards litigation expenses etc. in contesting the appeal in this Commission.

IN the result, the appeal is dismissed as it is devoid of merit. The impugned judgment of the District Forum is upheld. Appellant INsurance Company is directed to pay the entire amount awarded by the District Forum with the modifications indicated above alongwith the additional costs within two months from the date of this order failing which they shall be liable to pay interest @ 18% p.a. on the entire amount from the expiry of the period of two months. Appeal dismissed.