NEW INDIA ASSURANCE CO. LTD. vs Kuldeep Kumar Nayyar

K .S. Chaudhari, Presiding Member This revision petition has been filed by the petitioner against the order dated 08.04.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission '') in Appeal No.FA -08/124 - New India Assurance Co. Ltd. Vs. Kuldeep Kumar Nayar by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent obtained medi -claim policy from OP/petitioner in February, 2000 and this policy was renewed from time to time and policy was in force from 1.2.2003 to 31.1.2004. Complainant was admitted in Indraprashtha Apollo Hospital and was diagnosed as a case of superficial femoral Artery. Necessary procedure was conducted by the doctor and complainant was discharged from the hospital. Complainant incurred Rs.1,24,013/ - in the procedure. Claim was submitted to the OP which was repudiated by OP/petitioner. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that all the policies including renewal carry specific remarks that Heart Disease/Diabetic Mellitus (HD/DM) was excluded from the mediclaim policy. Insurance was granted subject to terms, conditions and stipulations as stated in the policy. It was further alleged that complainant was diagnosed as the case of ''''Peripheral Arterial Disease '''' and was treated vide surgical procedure of Peripheral Angioplasty; so, claim was rightly repudiated and prayed for dismissal of complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP to pay Rs.1,24,013/ - towards medical expenses and Rs.35,000/ - as compensation for mental harassment and Rs.5,000/ - as cost of litigation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties and perused record.

LEARNED Counsel for the petitioner submitted that as per exclusion clause Heart Disease/Diabetic Mellitus (HD/DM) and all pre -existing diseases whether declared or not were excluded from the scope of mediclaim policy, even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that complainant claimed only proportionate expenses and learned District Forum rightly allowed complaint and impugned order does not call for any interference and revision petition be dismissed.

IT is not disputed that Heart Disease/Diabetic Mellitus (HD/DM) and all pre -existing diseases were excluded from the mediclaim policy issued by the petitioner to the respondent from 1.2.2000 to 31.1.2004. Perusal of record further reveals that complainant was admitted in Indraprastha Apollo Hospital on 8.10.2003 and discharged on 9.10.2003 and it was observed that he was known diabetic from 20 -25 years on OHA. Again, he was admitted in the same hospital on 16.10.2003 and was discharged on 18.10.2003 and his diagnoses revealed : ''''Diagnosis: CAD, Old MI (Anteroseptal and inferior wall) Post PTCA and stent to distal RCA (February 2001) Instentrestenosis distal RCA PTCA + Stent to LAD PTCA + Stent to RCA (both medicated) on 16.10.2003 Peripheral vascular disease Right superficial femoral artery (RSFA) PTCA + stent to RSFA done on 17.10.2003 VPCs Diabetes Mellitus History: Patient is a known case of CAD with MI with PTCA and stent to distal RCA done on February 2001. Presented with complaints of palpitation for 8 days. Holter showed VPCs. CAG was done on 8.10.2003. CAG showed double vessel disease. Hence stress thallium was advised which revealed ischaemia in RCA and LAD territory. Hence, admitted for angioplasty and stenting ''''.

Apparently, as per exclusion clause from the mediclaim policy Heart Disease/Diabetic Mellitus (HD/DM) treatment was not covered in the medical policy, but complainant is claiming medical expenses incurred for treatment of Right Superficial Femoral Artery (RSFA) which is covered under the mediclaim policy and he is entitled to get reimbursement of expenses incurred on this treatment.

LEARNED Counsel for the respondent has drawn our attention to medical certificate given by treating doctor in which he has mentioned in Column

THAT present ailment was not a complication of pre -exiting disease and he has also mentioned in the certificate that for the present ailment surgery/treatment given was : ''''PTCA + Stent to Distal RCA PTCA + Stent to LAD ''''.

Perusal of certificate reveals that surgery was conducted and this fact has been admitted by the complainant himself in letter dated 17.12.2003, which runs as under: ''''Dear Sirs, Kindly refer to the policy number mentioned above. In this connection, I enclose an application for a claim of Rs.1,24,013.45 (Rupees One lakh Twenty Four thousand thirteen and paise forty five only), being the hospitalization and treatment expenses incurred by me. The total expenses amounted to Rs.3,94,972.29. This was due to the fact that the treatment that I underwent was two -fold, i.e., Coronary Angioplasty (which falls under the pre -existing disease category) and Peripheral Angioplasty for placing a stent in the Right Femoral Superficial Artery which was discovered to have a blockage. The claim is thus bifurcated and the working of the bifurcation is attached. All other annexures as required by you in support of the claim are also enclosed including the claim form and the medical certificate by the attending doctor. You are requested to expeditiously settle the claim ''''.

Thus, it becomes clear that complainant has bifurcated his claim and claimed only Rs.1,24,013.45 against expenses of Rs.3,94,972.29 incurred for Angioplasty and Stent to RFSA. As per details of hospital expenses, Rs. 10,926/ - were incurred by him from 8.10.2003 to 14.10.2003 which were not related to RFSA and in such circumstances, this amount requires deduction from the amount claimed i.e. Rs.1,24,013.45. Learned Counsel for the respondent placed reliance on III (2012) CPJ 322 (NC) - National Insurance Co. Ltd. and Anr. Vs. GirinR. Shah in which it was held that Insurance Co. was liable inspite of suppression of pre -existing disease as Insurance Company failed to establish link between pre -existing disease and the abscess for which insured was operated on. Learned Counsel for the petitioner could not place on record any material to suggest that RFSA treatment had any connection with Stent to LAD and stent to RCA and in such circumstances, complainant was entitled to Rs.1,13,087.45.

IN the light of above discussion, we are of the view that respondent ''s treatment pertaining to RFSA was not under exclusion clause in the insurance policy and petitioner committed deficiency in repudiating claim to this extent, but learned District Forum committed error in allowing Rs.1.24.013.45 instead of Rs.1,13,087.45, as discussed above and to that extent the revision petition is to be allowed.

CONSEQUENTLY , revision petition filed by the petitioner is partly allowed and impugned order dated 08.04.2008 passed by the State Commission, Delhi in Appeal No.FA -08/124 - New India Assurance Co. Ltd. Vs. Kuldeep Kumar Nayar and order of District Forum dated 27.11.2007 passed in OC/1958/04 - Kuldeep Kumar Nayar Vs. New India Assurance Co. Ltd. are partly modified and amount of Rs.1,24,013.45 in the order of District Forum is substituted by figure 1,13,087.45 and rest of the order of learned State Commission is upheld with no order as to costs.