New India Assurance Co. Ltd. vs PUSHPA VERMA

THE present appeal has been filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') against the order dated 19.10.2001 passed by District Forum, New Delhi in Complaint Case No. 809/1996, entitled Mrs. Pushpa Verma v. New India Assurance Company Ltd.

BY the impugned order, the learned District Forum has allowed the complaint of the respondent and has directed the appellant to pay Rs. 12,652/- together with 9% interest from the date of lodging of the claim till its realization together with cost and damages of Rs. 10,000/- within a period of 45 days of the date of order. The learned District Forum also directed that if the amount is not paid within 45 days, the appellant shall be liable to pay interest @ 12% p.a. Aggrieved by the above order of the District Forum, the appellant, New India Assurance Company Limited has filed the present appeal mainly on the ground that the claim of the respondent was repudiated on the ground of pre-existing disease and hence there was no deficiency in service on the part of the appellant.

The brief facts of the case relevant for the disposal of this appeal are that the respondent Mrs. Pushpa Verma had taken a medi-claim insurance policy from the appellant alongwith her other family members, namely, her son Anil Verma and daughter-in-law Preety Verma for a period of one year. The policy was for the period 13.8.1992 to 12.8.1993 and the respondent paid premium to the appellant. In the month of February, 1993, the respondent felt pain while urinating and got herself treated by a local doctor but the pain persisted and the treatment given by the local doctor did not give any relief. Hence she was advised to get herself examined by a Gynaecologist. The respondent then get herself examined by Dr. M. Bhutani, a leading Gynaecologist of Mool Chand Hospital and after examination, Dr. Bhutani told the respondent that she was having a Prolapse Uterus. Dr. Bhutani advised the respondent to get herself operated at the earliest. The respondent was operated on 17.4.1993 and after discharge from the hospital, she filed the necessary papers with the appellant for her claim. However, the claim of the respondent was rejected by the appellant on 8.12.1993 on the ground that the disease was pre-existing at the time of taking of medi-claim policy. According to the respondent her claim has wrongly been repudiated by the Assurance Company (appellant) and she is entitled for the claim, when the appellant did not settle the issue, she sent a legal notice to the appellant and then filed a complaint before the District Forum, New Delhi.

BEFORE the District Forum, the appellant contested the claim and alleged that before repudiating the claim, the appellant obtained the opinion of Dr. S.B. Rajpal, a panel doctor of the Assurance Company and the case was also investigated by an investigator who recorded the statement of the hospital in-charge and also of the operating local doctor who treated the respondent before the operation. The appellant repudiated the claim of the respondent on the ground of pre-existing disease basing its finding on the report of Dr. S.B. Rajpal and the investigator. After considering the evidence filed by both the parties, the learned District Forum found that the claim of the respondent has wrongly been repudiated because there was no reliable evidence to prove that the disease of the respondent was pre-existing or that the respondent was having knowledge of the disease before taking the policy. Accordingly, the complaint was allowed and the impugned order was passed. The case of the appellant before this Commission is that at that time of taking medi-claim insurance policy, the respondent has mentioned in the proposal form that she was not suffering from any pre-existing disease. Relying on the statement of the respondent, the insurance policy was issued. The respondent was hospitalized on 16.4.1993 with diagnoses of 3rd degree UV Prolapse with cystocele and rectocele and an operation was performed at Mool Chand Hospital on 17.4.1993. It is alleged by the appellant that after the claim of the respondent was received, the appellant forwarded the papers to the panel doctor Dr. S.B. Rajpal who submitted his report dated 7.6.1993 in which it was mentioned that disease was likely to have been pre-existing since the respondent was at the advanced 3rd Prolapse. Hence the panel doctor sought further information which was supplied by the respondent. The respondent submitted a certificate from Dr. S. Nanda, who reported that the respondent came to the hospital on 13.4.1993 with complaint of Prolapse Uterus since February, 1993. The appellant then appointed Shri Umesh Chand Singhla as investigator who recorded the statement of Dr. M. Bhutani operating Gynaecologist and also of Dr. Ajay Anand who was a family physician of the respondent and who gave treatment to her in the beginning. Relying on the report of Dr. Rajpal and the investigator, the appellant repudiated the claim on the ground of pre-existing disease. However, subsequently, on the representation of the respondent to re-consider the decision, the matter was referred to the Legal Board of the appellant Assurance Company who came to the conclusion that hysterectomy for menorrhagia of fibromyoma and related disorders were excluded for the first year of the policy. Accordingly, the appellant informed the respondent. The appellant has alleged that order passed by the learned District Forum is illegal, arbitrary and perverse without application of mind and against the well established principles of justice. Hence the impugned order passed by the District Forum should be set aside and the appeal be allowed. It was further alleged by the appellant that complaint was barred by limitation as the repudiation letter is dated 7.6.1993 whereas the complaint was filed on 30.3.1996 and this plea of limitation has not been considered by the learned District Forum.

WE have heard both the parties and have carefully considered the documents/material on record as well as arguments advanced from both sides. The first plea taken by the appellant is relating to limitation. It has been argued that repudiation letter is dated 7.6.1993 wheras the complaint was filed on or after 31.3.1996. In this connection, it is relevant to note that on the representation of the respondent, the matter was again referred to the Medical Board of the appellant Assurance Company and the decision of the Board was conveyed to the respondent vide letter dated 2.4.1994. This fact is mentioned in the appeal memo itself. The complaint was filed on 31.3.1996 and it thus appears that it has been filed within two years of the final repudiation of the claim and hence in our view it is not barred by limitation as alleged by the appellant. The main issue is regarding repudiation of the claim by appellant on the ground of pre-existing disease. This issue has been discussed by the learned District Forum in its order. The learned District Forum found that the investigation carried out by the investigator did not inspire confidence and the investigation does not disclose the existence of pre-existing disease. The learned District Forum has considered in detail the statements recorded by the investigator during investigation which include the statement of Dr. M. Bhutani, the operation Surgeon and the family doctor of the respondent. From the perusal of the statement of the concerned doctors, it is nowhere proved that the disease was pre-existing. As per statement of Dr. M. Bhutani, the respondent reported in the OPD on 13.4.1993 with complaint of Prolapse Uterus since February, 1993 and the medi-claim policy was taken much earlier. Even from the statement of Dr. Ajay Arora, it is not proved that the disease was pre-existing prior to the taking of the medi-claim policy. As per statement of Dr. Anand, the respondent was receiving treatment for 2/3 months and then she was advised to consult Gynaecologist. The finding of the learned District Forum on this issue is well reasoned and well discussed and there appears no infirmity in the order of the District Forum on this issue. Accordingly, the District Forum was justified in treating the repudiation as arbitrary, wrong and holding the appellant liable for deficiency in service. The appellant could not bring to our notice any reliable evidence to prove that the disease was pre-existing. The claim has been repudiated on the basis of opinion of Dr. Rajpal. In our opinion, the impugned order passed by District Forum is a well reasoned and well discussed order and there appears no infirmity in the order. Hence the appeal is liable to be dismissed. However, it appears that the learned District Forum has given double benefit to the respondent. The claim has been allowed with 9% interest from the date of lodging the claim and also costs and damages of Rs. 10,000/-. In our view the interest awarded by the learned District Forum is sufficient compensation and the amount of costs and damages awarded by the learned District Forum is on the higher side. Hence the impugned order of the learned District Forum is to be modified to the extent that instead of Rs. 10,000/- the appellant has to pay Rs. 2,000/- as cost of litigation besides interest awarded by the learned District Forum. With the above modification, the appeal is dismissed. No order as to costs. The above mentioned appeal stands disposed of in above terms. Appeal disposed of.