New India Assurance Co Ltd vs COMMANDER X P KAMALDEEP SINGH SANDHU

-BRIEF facts leading to the filing of the present appeal by the Insurance Company against the judgment of the District Forum dated 17. 10. 2002 may be noticed.

COMPLAINANT Commander Kamaldeep Singh Sandhu had taken a medi-claim insurance policy from the Insurance Company on 27. 11. 2000 in the sum of Rs. 2 lacs. It was alleged that on 16. 12. 2000 he felt uneasy. He got himself medically examined on 17. 12. 2000 and was thereafter admitted in Batra Hospital, New Delhi on 19th of December, 2000 from where after getting angioplasty done was discharged on 21. 12. 2000. He submitted a bill/claim of Rs. 1,66,549 to the Insurance Company and asked for reimbursement of the same in accordance with the terms of the medical policy which he had taken. The claim was not decided one way or the other which led the complainant to file a complaint before the District Forum i. e. Complaint No. 517 of 2001 which was decided on 4th of February, 2002 directing the appellant-Insurance Company to constitute a Medical Board and thereafter process the claim. The Medical Board was constituted by the Insurance Company and the Medical Board on the basis of the record etc. available with it came to the conclusion that the complainant had pre-existing disease. This led the Insurance Company to repudiate the claim on 15th of April, 2002. This necessitated the complainant to file another Complaint No. 227 of 2002 which has been allowed by the District Forum vide the impugned order dated 17. 10. 2002 in the following terms: "therefore, the complaint is partly allowed and the opposite party is directed to pay the claim amount as per the terms and conditions of the policy with 9% p. a. interest from 3 months after the date of submission of the investigation report dated 27. 3. 2001 and Rs. 500 as costs of the complaint within a period of one month from the receipt of the copy of the order. The copy of this order be supplied to the parties free of cost. File be consigned. "

The case of the appellant-Insurance Company rests on two exclusion clauses of the insurance policy i. e. , Clauses 4. 1 and 4. 2 which are in the following terms: "4. 1 All diseases/injuries which are pre-existing when the cover incepts for the first time. 4. 2 Any disease other than those stated in Clause 4. 3, contracted by the insured person during the first 30 days from the commencement date of the policy. This exclusion shall not, however, apply if in the opinion of panel of medical practitioners constituted by the Company for the purpose, the insured person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the company. This condition 4. 2 shall not however apply in case of the insured person having been covered under this scheme or group insurance scheme with any of the Indian Insurance Companies for a continuous period of preceding 12 months without any break. "

The case of the appellant-Insurance Company is that both the exclusions will apply but special reference has been made to Clause 4. 1 (supra ). It is being suggested that there is no dispute on facts that the respondent-complainant underwent angioplasty at Batra Hospital, New Delhi where a stent was also inserted in the artery of the heart. The suggestion which is being made is that the stage of angioplasty and putting of a stent does not occur overnight. It takes a period of time for the blockade to develop in the artery to occur which may necessitate angioplasty, insertion of stent or bye-pass surgery. Since, in this case, almost immediately after taking the policy the angioplasty was done it can reasonably be inferred that the disease for which the treatment was taken was pre-existing at the time when the insurance policy was taken. It is further the case of the appellant-Insurance Company that under Clause 4. 1 of the exclusion clause knowledge of the patient/assured of the disease is not necessary. The company is only required to prove the existence of the disease prior to the taking of the policy. If the case is covered by Clause 4. 1 then it will not come under Clause 4. 2 for the reasons that Clause 4. 2 only covers the cases where the disease has occurred within 30 days after the taking of the policy which, according to learned Counsel, is not the case as the disease was pre-existing at the time the policy was taken.

ON the other hand, the case of the complainant is that at the time when the medi-claim policy was taken the complainant had undertaken medical tests by the doctors of the company and had submitted ECG report in which no such disease for which he had taken the treatment had been mentioned. According to him, it cannot be said on the facts of the present case that the disease was pre-existing at the time the insurance policy was taken. This is being taken for the reason that the Medical Board which was constituted never examined the assured and it is not known as to on what basis the Medical Board came to the conclusion that it was a pre-existing disease. On first principle we would have agreed with the contention of the learned Counsel for the appellant that exclusion Clause 4. 1 in the policy, which has been reproduced above, does not envisage that there should also be knowledge attributed to the insured that he had a disease prior to taking of the policy. On the plain reading of Clause 4. 1 what the Insurance Company required to prove is that the disease for which the treatment was undertaken after the policy existed prior to taking of the policy though the insured may not have knowledge of that disease. However, learned Counsel for the respondent-complainant cited a judgment of the National Commission reported as IV (2006) CPJ 189 (NC), Praveen Damani v. Oriental Insurance Co. Ltd. , to contend that as per Clause 4. 1 of the policy the knowledge of the insured regarding the existence of the disease prior to taking of the policy is a must. He submitted that in the present case, there is no evidence that the complainant had taken any treatment regarding his heart prior to taking of the policy or had known about its symptoms. It''s also well-known that a person may be suffering from some heart problem but may not have felt about the heart problem at all and suddenly when angiography is done it is found that there is some blockade in the arteries. In Praveen Damani''s case following observations were made by the National Commission : "17. Hence, in our view, the Insurance Company has erroneously repudiated the claim by relying upon the so-called certificates of Dr. Aggarwal and Dr. A. Farishta to whom they have paid fees. None of the aforesaid certificates by Doctors would establish that the insured was aware of the heart ailment. If, in reality, had he been aware, he would not have waited for its treatment till he obtains the insurance cover, and take the risk of death.

The District Forum also relied on Clause 4. 1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.

If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4. 1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain etc. prior to 11. 8. 2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease.

In view of the above discussion and from the records available before us, in our opinion, the complainant has proved that he was unaware of the disease at the time of taking the policy and hence the complaint is allowed. "

AFTER noticing above, the revision petition of Parveen Damani was allowed by the National Commission and the Insurance Company was directed to pay Rs. 1,38,651 with interest. In the present case, as observed above, there is nothing on the record to show that though the disease may be pre-existing yet the complainant had no knowledge about the same inasmuch as there is nothing on the record that he had ever taken the treatment prior to taking of the policy or had known about the symptoms of heart disease. Even the ECG produced by the complainant at the time of taking of policy did not show anything wrong with the heart and that is why the medi-claim policy was issued to him. In view of the judgment of the National Commission (supra), we are of the opinion that no fault can be found with the approach of the District Forum when it allowed the complaint as aforesaid. Finding no merit in this appeal the same is dismissed. However, there will be no order as to costs.

THE amount deposited by the appellant-Insurance Company while filing the appeal may be remitted by the Registry to the respondent-complainant by way of a crossed cheque/draft after 45 days and the balance amount may be remitted by the Insurance Company to the respondent-complainant as per the order of the District Forum. Orders were reserved on 3. 5. 2007. Be communicated to the parties. Appeal dismissed.