New India Assurance Co. Ltd. vs K.K. KOHLI

THIS is an appeal at the behest of the New India Assurance Company Ltd. against the order of the District Consumer Disputes Redressal Forum, Amritsar (hereinafter called the "District Forum") dated February 18, 2003, by which the complaint of the complainant (respondent herein) was allowed in the following terms: "11. The complainant has not produced any evidence to show the expenses incurred on his treatment in Sitaram Bhartia Institute of Sciences and Research. Opposite party has also not placed on record any document to show the bills, etc. produced by the complainant along with the claim. Hence, no order of specific amount paid by the opposite party can be passed. Opposite party can only be given a direction to settle the claim in accordance with rules. 12. The complaint is allowed with costs of Rs. 500. Repudiation of claim by the opposite party is set aside. Opposite party is directed to pay the claim to the complainant on consideration on the bills, etc. produced by the complainant and in accordance with rules. The compliance of this order be made within one month from the receipt of copy of order."

BRIEF facts giving rise to this appeal are that on the alleged persuasion of Shri Jaspal Singh Nagi, Development Officer of the National Assurance Co. Ltd., the complainant-respondent K.K. Kohli along with his wife took mediclaim policies for Rs. 3,00,000 each. The policy was issued by the appellant/opposite party No. 1 Insurance Company on 1.5.2001 and it was to remain in vogue upto 30.4.2002. Complainant-respondent, Shri K.K. Kohli, was about 72/73 years of age when the insurance policy was taken. It was also alleged in the complaint that during subsistence of the insurance policy, the complainant developed some problem in his knees and, when he consulted the doctor, it was found that he was suffering from ''Advanced Degenerative Joint Disease Bilateral Knees''. Acting on the medical advice, the complainant underwent surgery in Sitaram Bhartia Institute of Sciences and Research at New Delhi for replacement of his both knees. It was further alleged in the complaint that the complainant did not know about the disease in question nor did he undergo any medical treatment for the disease prior to taking the insurance policy. The complainant, after the treatment, submitted all the relevant papers to the opposite party, but the claim was repudiated by the opposite party vide letter dated 7.2.2002, wherein it has been mentioned that the disease, from which the complainant was suffering takes several years after beginning of the symptoms in the form of pain in the knees in order to reach a stage called, ''Advanced Degenerative Joint Disease of the Knees'', at which stage the operation called "Total Knees Replacement" has to be advised. Since this was pre-existing disease at the time the insurance policy was taken by the complainant, the claim was not payable. Before writing this letter, the Insurance Company had taken medical opinion from Dr. Suresh Agarwal, M.B.B.S., M.D. (Med), Medical Specialist, Amritsar, who gave the opinion as aforesaid (Ex. R-4). His affidavit was also filed before the District Forum. The District Forum, not agreeing with the stand of the opposite party that it was a pre-existing disease of knees and the complainant had the knowledge of the same, which fact he concealed at the time of taking the medical insurance policy, the complaint was allowed as aforesaid. Hence, the present appeal by the Insurance Company. Learned Counsel for the appellant drew our attention to the exclusion clauses in the insurance policy. Specific reference was made to Clauses 4.0 and 4.1, which are in the following terms: "4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of... 4.1 Such diseases which have been in existence at the time of proposing this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance, whether symptoms were relating to the sickness complications arising from pre-existing disease will be considered part of that pre-existing condition."

He further drew our attention to the Discharge Summary of the patient (i.e. the respondent-complainant Shri K.K. Kohli), which was recorded by the Doctors of Sitaram Bhartia Institute of Sciences and Research, New Delhi, where the complainant underwent surgery of his knees. The same is Ex. R-3. Under the column ''Diagnosis'', it has been mentioned ''Advanced Degenerative Joint Disease Bilateral Knees''. He also drew our attention to the opinion of Dr. Suresh Aggarwal, Ex. R 4, which was taken by the appellant-Insurance Company after the claim was put in by the complainant. This opinion of Dr. Aggarwal has already been referred to above while narrating the facts.

Learned Counsel for the appellant further argued that the problem in the knees of the complainant, which may require knee replacement, does not occur overnight. It takes several years for the disease to develop culminating in the replacement of the knees. The Discharge Summary of the complainant, which was issued by the Sitaram Bhartia Institute of Sciences and Research, New Delhi, clearly mentions ''Advanced Degenerative Joint Disease Bilateral Knees'', from which the complainant was suffering and required total replacement of both the knees. In other words, the disease of degenerative joint of the knees was at an advanced stage, which required immediate replacement of both the knees.

LEARNED Counsel for the respondent-complainant argued that as per the law, which by now is well settled, the onus is on the Insurance Company which repudiates the claim, to prove that a particular disease existed at the time of taking the insurance policy and that the insured had also the knowledge of the same. According to the Counsel for the respondent-complainant, both the things were missing as the appellant Company has failed to discharge that onus. There was no mala fide on the part of the complainant to take the insurance policy with the idea to ultimately lodge a claim as he had also taken the insurance policy of his wife. After hearing the learned Counsel for the parties, we are of the view that there is force in the arguments of the learned Counsel for the appellant Company. The insurance policy was taken by the complainant when he was about 72/73 years of age. The policy was taken on 1.5.2001, whereas the operation for replacement of knees was conducted on 7.8.2001. Apart from the medical opinion, the general experience also shows that the problem in the knees, which may ultimately require replacement of the knees, does not develop overnight. It takes very long for the knee joints to degenerate and the person does feel discomfort, pain and difficulty in walking. As per Clause 4.1 of the insurance policy, it is not required that the insured must have the knowledge of the disease. If the evidence shows that at the time of taking the insurance policy a particular disease pre-existed, even without the knowledge of the insured, the Insurance Company is well within its right to repudiate the claim. For repudiating the claim under Clause 4.1 of the insurance policy, knowledge of the insured regarding the pre-existing disease is not necessary. In the present case, from the medical evidence it is quite apparent that the disease was pre-existing at the time when the insurance policy was taken by the complainant. We can also assume that the patient suffering from such a disease must have the knowledge as he must be experiencing certain pain and discomfort in his knees. The need for replacement of the knees does not arise overnight. It is a long-drawn process. The age factor can also be taken into consideration. As observed above, when the insurance policy was taken, the complainant was about 72/73 years of age. We are of the view that the appellant Company has been able to discharge its onus on the basis of medical opinion that the complainant was suffering from the knee disease, which was pre-existing at the time of taking of the insurance policy. Though we have held that under Clause 4.1 of the exclusion clauses of the insurance policy (supra), the knowledge of the disease of the insured is not necessary, yet we are of the view that in the present case, the insured must have had the knowledge about the problem in his knees.

FOR the foregoing reasons, we accept this appeal, set aside the order of the District FORum dated February 18, 2003 and dismiss the complaint. However, we make no order as to costs. The orders were reserved on 4.8.2004. Be communicated to the parties. Appeal allowed.