New India Assurance Co. Ltd. vs MASTER D.VISHNU

THE opposite party New India Assurance Company Limited against which an award has been passed is the appellant. THE complainant is a minor represented by his father. THE complainant and his father alongwith two others took a joint Mediclaim Insurance Policy from the opposite party on 26.3.1991. This policy was in force from 26.3.1991 to 25.3.1992. THEn the complainant and his father took another Domicilliary Hospitalisation Insurance Policy for the period from 26.3.1992 to 25.3.1993. THE complainant was admitted in the Heart Institute, in Vijaya Health Centre on 2.2.1993. THE ailment was diagnosed as Congenital Acyanotic Heart Disease. THE complainant was operated upon on 5.2.1993 and discharged on 18,2.1993. THE complainant incurred an expenditure of Rs. 1,12,223.80. THE complainant is entitled to reimbursement of this amount under the said Domicilliary Hospitalisation Insurance Policy. THE complainant made a claim for reimbursement with the opposite party on 8.3.1993. But the opposite party repudiated his claim by their letter dated 7.10.1993 on the ground that the disease suffered by the complainant was a pre-existing one. THE complainant wrote to the opposite party stating that the disease was not a pre-existing one, but that was in vain. This act of the opposite party amounts to deficiency in service. On these grounds, the complaint ha'' been filed claiming the above said sum with interest thereon and also compensation for mental agony and hardship.

THE opposite party contended that suspecting the claim made by the complainant, they appointed an independent Investigator to assess the merits of the claim. It became known to the opposite party that the complainant was suffering from Congenital Heart disease which should have been apparent within a month or two from his birth and that the said fact was known to the father of the complainant. THE repudiation is on the basis of the investigation made and on real facts and there is no deficiency in service on the part of the opposite party. As such, if there is any remedy for the complainant, it can be only in a Civil Court and not in a Consumer Forum. THErefore, the complaint is liable to be dismissed. The District Forum accepted the case of the complainant and it passed an award directing the opposite party to pay a sum of Rs. 1,12,223.80 with interest thereon @ 18% per annum from the date of the claim till realisation and also Rs. 1,000/- as costs.

Now in the appeal, it is contended that the order of the District Forum is erroneous and unsustainable in law. A reading of the order of the District Forum shows that according to it, even though the disease was a congenital one, there is no material to show that the complainant or his father had known it before the date of the policy and that being the case, the repudiation of the claim by the opposite party is improper. It is argued before us that even if it is true that the complainant and his father were not aware of the disease before the policy, this is immaterial because under the terms of the policy, if the disease is a pre-existing one, then. the opposite party is not liable to pay. We find that this submission has great force. Ex. A-2 has been filed as the policy in question. But only the schedule of the policy is given and not the full policy containing the terms and conditions thereof. During the arguments before us, the learned Counsel appearing for the appellant, opposite party Insurance Company produced a copy of the draft policy containing the terms and conditions. It was agreed that this is the correct copy of the terms of the policy in question. A reading of it clearly shows that preexisting disease is excluded. The relevant clause in the terms and conditions is Clause 2.1.41 occurring under (2.0) "Exclusions". This clause reads thus : "All diseases/injuries which are pre-existing when the cover incepts for the first time". It is not in dispute that the heart disease for which the complainant was treated by performing an operation is a congenital one. Even the certificate issued by the Doctor who did the operation and filed by the complainant himself which is an enclosure to Ex. A-20 clearly states that the disease was a congenital heart disease. Manifestly, therefore, the disease in question is clearly not covered by the policy and therefore, the opposite party is not liable. Be that as it may, according to the opposite party, they made an independent investigation by appointing an Investigator by name Mr. A.S.N. Arya & Co. and as per their report which has been marked as Ex. B1 dated 5.4.1995, the disease was congenital and there was no question of non-pre-existence of the disease. The opposite party resorted to the assistance of the Investigator because, according to them, they could not succeed, in spite of their best efforts, to get the discharge summary from the hospital where the complainant was operated upon. This version of the opposite party appears to be true in view of Ex. B-4 letter written by the hospital to the opposite party. When in these circumstances, the opposite party had written the repudiation letter Ex. A-15, stating the reasons for repudiation, it cannot at all be said that the opposite party was deficient in service. For these reasons, the complainant will not be entitled to the claim from the opposite party.

IN the result, therefore, we allow the appeal, set aside the order of the District Forum and dismiss the complaint. However, there will be no order as to costs. Appeal allowed. ________________