NEW INDIA ASSURANCE CO. LTD. vs VASANT RAO

THESE two Revision Petitions have been filed against the judgement and order dated 9.8.2005 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal Nos.1128/2005 and 1129/2005. Brief facts of the case are as follows: The Respondent, Shri Vasant Rao, is covered by a mediclaim insurance policy issued for the first time on 1.3.1995 for one year by the Petitioner, New India Assurance Company Ltd. The policy was subsequently renewed on year to year basis and the last extension being for the period 1.11.1998 to 31.10.1999. Between 28.2.1999 and 4.3.1999, the Respondent complained of chest pain and was admitted in Basaveshwar Hospital, Gulbarga. On 13th April, he underwent a diagnostic test (Angiography) at the CARE Hospital, Hyderabad for which he spent Rs.26,879.80 ps. His ailment was diagnosed as "Ischemic Heart disease" (IHT). In July-August 1999, he underwent a surgical procedure called CABG at the Madras Mission Hospital, Chennai. The Respondent claimed reimbursement of (i) charges for the Angiography and (ii) the CABG from the Petitioner. The claims were rejected by the insurance company on the ground of Exclusion Clause No.4. The Exclusion Clause was invoked basing on the fact that in October-November 1986, the Respondent underwent a by-pass surgery. This was disclosed in his proposal form for obtaining mediclaim insurance policy which he took in 1995 and in every subsequent tenure of the policy.

AGAINST the repudiation, the complainant filed two complaints before the District Forum which held that the Exclusion Clause does not apply to the case and held that the Insurance Co. is liable for deficiency in service. The appeal Nos.1128 and 1129 of 2005 filed by the Insurance Company were dismissed by the Karnataka State Commission on 9.8.2003. Hence, the Insurance Company is in revision before us. The arguments of the Respondent are four fold: Firstly, it is argued that it is an admitted fact that the Respondent while taking the Insurance Policy in 1995 disclosed about his by-pass surgery which he underwent in the year 1986. The Insurance Company in spite of the disclosure accepted the policy without sending the Respondent for any medical examination.

SECONDLY , the Insurance Company went on renewing the policy from time to time.

THIRDLY , if it was the intention of the Insurance Company to exclude heart disease, they should have made an endorsement to that effect in the policy. Even though the Petitioner fully knew that the Respondent had undergone by-pass surgery in 1986, they failed to make any such endorsement excluding heart disease. Fourthly, that the Insurance Company before repudiating the claim of the Respondent under the Exclusion Clause, admittedly failed to obtain opinion from any medical expert. Thus repudiation was a sheer arbitrary decision.

THE matter was heard by us on 10th November, 2005. While admitting the Revision Petition it was held that the matter should be restricted to the point of interpretation of Clause 4.1 of the policy which excludes "All diseases/injuries which are pre-existing when the cover incepts for the first time".

THE issue for decision is whether the present ailment (IHT) of 1999 is an extension of heart disease of 1986. We have carefully gone through the record and we see no reason to interfere with the two concurring orders of the District Forum and the Karnataka State Commission. The reasons are as follows: The Revision Petitioner has not produced any evidence to show that Ischemic Heart Disease (IHT) diagnosed by Doctors in April 1999 and the surgical procedure which he had to undergo continued or existed for a period of 13 years. It is not possible to say that such disease after surgical procedure continues or exists for such a long time. They have also not produced any expert evidence to prove this claim. On the other hand, they have relied on speculation and stated: "The persons who have suffered from heart disease and have undergone bypass surgery are always advised by Doctors to continue medication as people who are prone to this disease, it keeps recurring in them. Though one artery may have been by-passed in a bypass surgery, the blockages can appear in the other arteries later on. Thus, one is advised to be on medication constantly to dissolve these blockages. Going by this advice, it is certainly an extension of the pre-existing disease and the Insurance Company has rightly repudiated the claim." This itself suggests that disease does not continue or exist, but such persons are prone to this disease.

FURTHER , in the affidavit filed by the Respondent, he has affirmed that he had undergone a by-pass surgery on 11.10.1986. He has taken some medicines for only about 3 months thereafter. Almost 10 years have passed before he took the Insurance Policy in March 1995. In these 10 years he had no heart ailment at all. In fact he was in active police service and retired as Superintendent of Police in July 1993. He had not taken any medication for heart disease during this period. Four years after taking the Insurance Policy, in February-March 1999, he was advised Angiography and subsequently a surgical intervention. The disease of 1999, under the above circumstances cannot be described as a continuation to the disease of 1986. He had not hidden the fact of his having undergone the by-pass surgery in 1986 from the Insurance Company. If the Insurance Company knew that the heart disease would continue over a time, they ought to have sent the Respondent for a medical test at the time of issuing the insurance and should have clearly mentioned that heart disease is excluded from the policy. None of the above averments have been successfully controverted by the Petitioner, the Insurance Company. After a successful by-pass operation in 1986 it can no longer be said that this disease continues. Therefore, the repudiation is unjustified.

IN the result, both the Revision Petitions are dismissed. The insurance company shall pay Rs.10,000/- as costs in each case. It would be open to the Respondent to withdraw Rs.1 lakh deposited with District Forum which had been deposited in pursuance of our order dated 10th November, 2005.