NEW INDIA ASSURANCE CO. LTD vs B.Y. SRIKANTA

The facts of this case which have led to the filing of the present revision petition in brief are that the Complainant-B.Y. Srikanta, who is respondent herein, and his family members held a mediclaim insurance policy from the Petitioner-Insurance Company. The mediclaim policy in question covered the eriod from 19.6.2002 to 18.6.2003. The complainant also held a personal accident policy from the petitioner for the same period. On 11.8.2002 he had accidentally fall while walking thereby sustained head injury and other injuries over the body. As a result of the said fall, he became unconscious and after regaining consciousness he had difficulty in walking. Immediately he was taken to Basaveswara Poly Clinic at Chickmagalur where he was attended and treated by Dr. J.N. Vinay. As per doctor''s advice he was referred to Municipal Hospital, Bangalore for further investigation, evaluation and other treatment in the said hospital. The complainant was admitted to Municipal Hospital, Bangalore on 12.8.2002 where he was treated by Dr. N.K. Venkataramana and other doctors. In the said hospital, investigations were carried out and diagnosis for the head injury for post traumatic syndrome. As per allegation, doctors finally diagnosed that he was developed Parkinson disease on account of the head injury which he had suffered. The doctors also advised him to undergo "Bilateral Deep Brain Stimulation" operation which would cure the Parkinson disease suffered by the complainant completely. After his consent, the expert doctors performed the said surgery on 14.8.2002 which was successful and

cured him from the Parkinson syndrome and he was discharged from the hospital on 19.8.2002. He incurred an expenditure of Rs.5,02,573.75 towards this treatment at Municipal Hospital. On 28.2.2002 he requested the petitioner- insurance company to reimburse the expenditure incurred by him over this treatment. For this purpose, he submitted the claim duly filled up alongwith bills, vouchers etc. On 11.4.2003 he received a letter from the petitioner-insurance company in which it was alleged that the complainant was suffering from Parkinson disease and also for hypertension for a long time prior to the date he suffered head injury. It was also alleged by the insurance company that complainant had suppressed this information and obtained mediclaim and personal accident policy by misrepresentation and hence the petitioner repudiated his claim. After few days petitioner sent a letter on 24.4.2003 to the complainant alongwith a cheque for Rs.9,300/- towards full and final settlement of the claim made by the complainant. It is the case of the complainant that he neither suppressed nor misrepresented any information of the material facts while taking the mediclaim and personal accident policies from the petitioner. According to him he did not suffer from any of the Parkinson disease which would disentitle him from claiming medical reimbursement under the above said policy. Therefore, the complainant sent a legal notice on 5.6.2003 to the petitioner-insurance company stating that he would encashed the cheque of Rs.9,300/- without prejudice to his right to recover the entire amount subject to adjustment of the amount of the cheque. In spite of legal notice, there was no favourable response from the insurance company and hence alleging deficiency in service on the part of the insurance company, the complainant filed consumer complaint before the District Forum.

On notice, the opposite party- insurance company filed its reply in which the cover provided under the two policies was admitted. It was also submitted that on processing of the claim sent by the complainant, the petitioner had come to the conclusion that the complainant had been suffering from Parkinson disease. Even though he had high blood pressure, he did not declared it at the time of original proposal form given on 11.6.2001. It was stated that the Parkinson is a chronic and degenerative disease who runs for many years before it disables the person. The "Bilateral Deep Brain Stimulation" operation is done as last resort for the said symptoms when the treatment of drugs has failed. According to the insurance company there was no urgent necessity of operation when the drugs could have control the disease and the patient should have been put on drugs before resorting to operation. It was contended in OP''s reply that if the hospital authorities had conducted the operation without recourse to drugs it means that the complainant had the said Parkinson disease for quite some time for which he had been on medication but the same fact was suppressed at the time of obtaining the policies. Therefore, the opposite party submitted that the disease was pre-existing one and under the policy conditions the same is not covered and as such the claim of the complainant was repudiated. It was pointed out that the payment of Rs.9,300- pertains to another policy for personal accident since complainant had claimed that he had fall and undergone medical treatment for the same incurring expenditure of Rs.8,000/- @ Rs.1,000/- per day for 8 days and Rs.1,300/- for treatment. Denying any deficiency on its part, the insurance company prayed for dismissal of the complaint.

Both the parties led evidence in support of their contentions. After hearing the arguments based on the evidence adduced by the parties, District Forum allowed the complaint vide its order dated 14.9.2006 and directed the opposite party-insurance company to pay a sum of Rs.3,00,000/- under the mediclaim policy alongwith interest @ 6% p.a. w.e.f. 3.7.2003 till actual payment to the complainant. The amount of Rs.2,000/- was also awarded towards cost of litigation.

Aggrieved by the order of District Forum, opposite party-insurance company filed appeal bearing No.2315 of 2006 challenging the order of District Forum before the Karnataka State Consumer Disputes Redressal Commission, Bangalore. The State Commission vide its order

dated 19.10.2006 dismissed the appeal which is now under challenge through the present revision petition.

We have heard Dr. Sushil Kumar Gupta, Advocate for the petitioner and Shri B.S. Sharma, Advocate for the respondent. Besides hearing the arguments of learned counsel, we have also gone through the record in this case. Learned counsel for petitioner has submitted that the order passed by the State Commission is not sustainable under law being prima facie illegal, arbitrary and contrary to the facts and circumstances of the case. He has stated that the order of the State Commission is based purely on certain assumptions and surmises without taking into consideration the facts and circumstances of the case and hence, the impugned order is liable to the set aside. He reiterated that as per clause 4.0 and 4.1, the insurance company shall not be liable to make any payment under the policy, in respect of any expenses whatsoever incurred by the complainant in connection with or in respect of the treatment of all disease which are pre-existing when the cover started for the first time. He contended that both the fora below gravely erred in ignoring that the complainant was also suffering from Parkinson disease for quite some time because it is such a disease which could not have surfaced all of a sudden requiring the deep brain stimulation trip. The complainant had suppressed this fact while submitting his proposal and hence contract of insurance got vitiated and as such the petitioner-insurance company was fully justified in repudiating the claim. In this context, learned counsel for the petitioner referred all documents placed at Annexure -III which contained information about Unified Parkinson disease rating scale to show that the respondent/complainant had this disease even before the date of the accidental fall on 11.8.2002. In response to query form us, learned counsel submitted that the documents referred to payment was the documents of complainant himself, although there was no name mentioned on this document. Keeping in view the fact that the complainant had a pre-existing disease on the date of initial proposal and he suppressed this fact by not furnishing information in his original proposal, the counsel submitted that the claim was liable to be repudiated. The fora below erred in accepting the claim. In view of the negligence on the part of the complainant in suppressing of this material fact, he therefore pleaded that the impugned order of the fora below cannot be sustained under the eye of law and are liable to be set aside and the revision petition deserves to be allowed.

On the other hand, learned counsel for the respondent submitted that the State Commission has returned its concurrent finding of facts and as such no interference is called for with the impugned order under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') which confers imperative jurisdiction to this Commission wherein the Commission can interfere only if there is material irregularity, illegality or jurisdictional error. Regarding the documents, the name of doctor who has recorded the alleged findings relied upon by the counsel for petitioner-insurance company, learned counsel pointed out that neither the document bears any name of doctor pertained to the complainant nor there is any exhibit number to show that the same was produced before the District Forum. In such a situation, he contended that no reliance can be placed at such a document. He, therefore, pleaded that there is no merit in the revision petition and the same be dismissed.

We have considered rival contentions. We may note that the District Forum has passed a detailed order recording reasons in support of its findings. It is also seen that the District Forum has apprised the evidence adduced by the parties at great length in paras no.33 to 92 of its order before finally non suiting the defence of the opposite party-insurance company and accepting the claim of complainant only upto Rs.3,00,000/-. In this context, reasons recorded by the District Forum particularly in paras no.68,69,70,75,76,81 and 82 are significant which indicate that the Parkinson disease in question was not a pre-existing disease as alleged by the opposite

party-insurance company. We have seen the admission record of complainant pertaining to his treatment at the Municipal Hospital, Bangalore, a copy of which is placed on the file. It is specifically recorded in the column of final diagnosis that the complainant had "Post Traumatic Parkinson Disease". The State Commission in its impugned order has recorded that even though the insurance company has taken the defence that the complainant having taken treatment for Parkinson disease which it claimed to pre-existing disease, the insurance company has not produced any iota of evidence to show that Parkinson disease is a pre-existing disease and the same was not disclosed in the proposal form by the complainant.

We may thus note that both the fora below have returned their concurrent findings of facts since we do not find any jurisdictional error. There is no justification to interfere with the concurrent orders of the fora below under Section 21(b) of the Act under which this revision petition has been filed. This is in line with the view taken by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, which read as under; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora. "

In view of the above discussion, we do not find any merit in this revision petition and hence, the same is dismissed leaving the parties to bear their own cost.