New India Assurance Co. Ltd. vs H.J.S.BHATIA

THIS appeal is directed against the order dated 25.6.2001 passed in Case No. 365/1998 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the "District Forum") whereby the complaint for deficiency in service in not making the payment of mediclaim of Rs. 94,548/- under the mediclaim policy No. 48/96/359 was allowed with an order to pay the amount of Rs. 94,548/- and Rs. 1,000/- as costs of the proceeding within a period of two months failing which amount of Rs. 94,548/- to carry interest at the rate of 8 cent per annum.

FACTS giving rise to this appeal are thus : The respondent being a Cancard holder who on payment of the premium through Cancard deposited in the Canara Bank at Jabalpur which in turn sent the premium to the New India Assurance Company at Bangalore. The Insurance Company accepted the premium and issued the Mediclaim Policy under the CANCOMFORT MEDICLAIM INSURANCE PLANS (for short "CMIP") and sent the policy No. 48/95/00279 for the year 1995-96 and the policy No. 48/96/359 for the year 1996-97 at Jabalpur. The respondent in February, 1997 suffered back pain, hence, he consulted Dr. P.S. Maini at Delhi on whose advice MRI test in Dewan Chand Satyapal Agarwal Imaging Research Centre, New Delhi was conducted wherein it was found that Sagittal T1 and TSE T2 weighted scans of the lumbo sacral spine were studied and these were correlated with axial T1 and TSE T2 weighted scans from L1 to Sacrum. There is straightening of the Lumber curve with dehydrated L3-4, L4-5 and L5-SI intervertebral discs displaying lower signalintensities on T2 weighted images. At L5-SI level, there is, in addition, evidence of break in the posterior annulus and large extruded disc towards the left side which is bent caudally. The lateral spinal recess is obliterated and the left SI nerve root is compressed. Height and alignment of lumbar vertebrae is maintained. The lower end of the spinal card and nerve roots of the cauda equina within the lumbar thecal sac show normal MR Morphology. The pre and para vertebral soft tissues are unremarkable. The respondent then consulted Dr. H.R.Jhunjhunwala at Mumbai who in the history wrote complaint of pain since two years off and on,and advised complete rest and operation. The respondent was admitted on 23.4.1997 for operation where he was operated and then was discharged on 12.5.1997. The respondent submitted the claim. The Insurance Company sought clarification vide letter dated 26.6.1997 from Dr. H.R. Jhunjhunwala, who vide 8th September, 1997 gave clarification stating therein that backache may be due to many things, many causes. He developed severe pain since October, 1996 which did not subside and was diagnosed as a case of prolapsed lumber intervertebral discs for which he was operated on 23.4.1997. During history writing, we generally ask the patients how many days he is getting pain. Mr. Bhatia had pain in back for last 2 years which was off and on and used to subside with simple medicine at or even of its own. That means the pain of last 2 years is not due to prolapsed lumber disc. The pain in back which occurred in October, 1996 was due to prolapsed disc for which he had treatment since October, 1996 which did not subside and hence he had to go under operation.

However, the Insurance Company did not make the payment and repudiated the claim under exclusion Clause 4.1 of the policy treatng it a case of pre-existing disease. The respondent filed the complaint which was resisted on merits as well as on the ground of territorial jurisdiction as the policy was issued from Bangalore. The District Forum held that it had territorial jurisdiction the policy was issued under the CMIP of the Canara Bank for the holders of the Cancard and members of their family, the premium of which was deposited in the Canara Bank through Cancard which was remitted by the Canara Bank to the Insurance Company who in turn issued the policy from Bangalore and certificate was sent to Cancard Holders at Jabalpur. Besides, the repudiation of the claim was intimated at Jabalpur, hence, the District Forum held that part of the cause of action arose at Jabalpur. On merits, the District Forum held that in view of the clarification of Dr. Jhunjhunwala it was not a pre-existing disease of which the Insurance Company has not adduced any evidence of pre-existing disease, hence ordered to pay the amount.

AFTER hearing learned Counsels for the parties, the submission of the learned Counsel for the appellant that the District Forum at Jabalpur had no territorial jurisdiction to entertain the complaint cannot be accepted in view of the fact that the Insurance Company under the CMIP covered mediclaim insurance plan drawn by the Canara Bank and other Banks like Bank of Madura, Corporation Bank, Dena Bank, Indian Overseas Bank, Syndicate Bank, Saraswat Co-operative Bank Ltd., Karur Vysya Bank Ltd. and Union Bank of India promulgated a scheme of the mediclaim cover to cover the risk of Cancard holders and members of their family at the concessional rate of premia against the risk of personal accident and unanticipated medical expenses. On receipt of the premium, under the scheme, it was the discretion of the New India Assurance Company to cover the risk or not. It was also stated in the Scheme that in respect of proposals accepted, the Insurance Company will be sending individual certificates to the insured. If the card holder does not receive the certificate of insurance, then he can lodged the claim on the basis of the debit raised on his account and the relevant plan quoted therein. In the case in hand, as the respondent deposited the premium through CANCOMFORT Card at Jabalpur, which was transmitted by the Bank to the Insurance Company, which in turn after acceptance sent the policy certificate at Jabalpur. The correspondence and repudiation of the claim was also communicated at Jabalpur. In such circumstances, though policy was issued from the Bangalore, the part of the cause of action arose at Jabalpur. In any case, learned Counsel for the appellant could not show any prejudice as after the objection in the written statement, the claim was also contested on merits. In such circumstances, in view of the decision of the Supreme Court in M/s. Vikas Motors Ltd. v. Dr. P.K. Jain, II (1999) CPJ 44 (SC)=VII (1999) SLT 115=AIR 2000 SC 102, now the complaint cannot be thrown or the complainant cannot be reverted back to file the complaint before the District Forum at Bangalore.

ON merits, the claim was repudiated under Exclusion Clause 4-1 of the policy, which reads thus : "4.1 The Company shall not be liable to make any payment in respect of any expenses incurred in respect of such disease which have been in existence at the time of proposing the insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance, whether or not the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered as part of the pre-existing condition."

The Insurance Company only on the basis of the medical record i.e. the symptoms of back pain written in the history since 2 years and that the ailment and its symptoms at the time of proposing the insurance and the doctors report dated 19.4.1997 and reply dated 7.7.1997 to the queries of the Insurance Company stated that clarification is quite contradictory to the report, hence, as the symptoms were present even before taking insurance cover repudiated the claim which in the facts of the case is not justified as it is the Insurance Company itself sought the clarification from Dr. H.R. Jhunjhunwala who clarified that it was not a pre-existing disease. The Insurance Company has also not adduced any other evidence except relying the record of treatment and the clarification, repudiated the claim. During history writing generally the patients are asked for how many days he is getting pain. In reply to that, the respondent gave answer last two years off and on, which used to subside with simple medicines or even without medicines. Therefore, Dr. Jhunjhunwala has clarified that the pain of last two years is not due to lumber disc. In such circumstances, the ailments for which he was operated for the first time was being found in MRI report only and prior to that the respondent was not treated for that. In such circumstances more particularly in the absence of evidence on behalf of the Insurance Company of pre-existing disease, in our opinion, the Insurance Company was bound to pay the claim particularly when it itself asked the clarification from Dr. Jhunjhunwala. In view of the above, we direct the Insurance Company to pay the amount of Rs. 94,548/- along with Rs. 1,000/- as costs of the proceedings awarded by the District Forum within a period of two months from the date of receipt of certified copy of this order, failing which the amount shall carry interest at the rate of 9 per cent per annum from the date of this order.

IN the result, the appeal fails and is dismissed with no order as to costs of this appeal. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal dismissed.