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Judgment
The complainants/respondents obtained a mediclaim policy from the petitioner company, for the period from 16.1.2008 to 15.1.2009 and then from 16.1.2009 to 15.1.2010 for a sum assured of Rs.3 lakhs. Earlier to that, the complainants had obtained a mediclaim policy for the period from 24.12.2004 to 23.12.2005 and 16.11.2006 to 15.11.2007. The complainant No.2 Mrs. Om Kumari Bohra having sustained a fracture during the subsistence of the first policy taken by her, the expenses incurred by her were reimbursed by the insurer. Later, she was advised replacement of right hip joint and, therefore, she remained admitted as an indoor patient in Sant Parmanand Hospital, Delhi from 27.4.2009 to 9.5.2009 and incurred an expenditure of Rs.2,88,000/- on the said replacement. A claim was then lodged by her for reimbursement of the aforesaid expenditure incurred at Sant Parmanand Hospital, Delhi but the claim was rejected primarily on the ground that there was a break in the insurance policy and the claim was excluded under clause 4.1 of the Exclusion Clause contained in the policy and the aforesaid disease was concealed by her while obtaining the policy for the period 16.1.2009 to 15.1.2010. Being aggrieved, the complainant approached the concerned District Forum by way a consumer complaint.
The complaint was resisted by the insurer primarily on the ground that the replacement of hip bone was a continuation of the fracture which the complainant had sustained in the year 2005 and, therefore, the claim was inadmissible in terms of the Exclusion Clause 4.1. of the insurance policy.
The District Forum vide order dated 7.10.2013 allowed the complaint and directed the insurer to pay a sum of Rs.2,88,000/- to the complainants along with interest @ 9% p.a., compensation quantified at Rs.10,000/- and the cost of ligation quantified at Rs.3,000/-.
Being aggrieved from the order passed by the District Forum, insurer approached the concerned State Commission by way an appeal. The said appeal having been dismissed with cost assessed at Rs.20,000/-, the insurer is before this Commission by way of this revision petition.
Clause 4.1. of the terms and conditions applicable to the mediclaim policy taken by the complainant reads as under:- " 4.1 Pre-existing disease/condition : All diseases/injuries/conditions, which are pre-existing when the cover incepts for the first time (except as shown hereunder). Any complication arising from pre-existing disease/ailment/injury will be considered as a part of pre-existing condition. This exclusion will be deleted after four consecutive claim free policy years provided there was no hospitalisation for the pre-existing disease/ailment/condition/injury during the said four years of insurance policy with our Company."
Clause 4.3 of the said policy reads as under:-
"4.3 Waiting period for specified disease / ailments / conditions:
From the time of inception of the cover, the policy will not cover the following diseases/ailments/conditions for the duration shown below. This exclusion will be deleted after the duration shown, provided the policy has been continuously renewed with our Company without any break.
Sr. No. Name of Disease/Ailment/Surgery not covered for Duration
22 Joint Replacement due to Degenerative Condition Four years"
The Discharge Summary issued to complainant Mrs. Om Kumari Bohra by Delhi Institute of Trauma and Orthopaedics Sant Parmanand Hospital, Delhi to the extent it is relevant, reads as under:- "Diagnosis: Non-union Right S/T Fracture with Recon Nail (Zimmer) & LCP in Situ
Operation : Implant Removal + THR (36 mm LDH-MOP - Zimmer) + Bone Grafting
Summary : Patient presented with history of fracture subtrochanteric right femur after a fall at home. She was treated by DHS fixation in Jan 2005, post-op period was uneventful. But 4 months later subsequently DHS was failed and DHS removal + recon nail + bone grafting (Zimmer 340 x 11 mm) fixation done on 21.09.05 and Augmentation with LCP on 01.10.05. Post-op period was uneventful but pain never decreased and could not bear weight on right lower limb due to pain in right hip region. For the last 6 months pain increased in severity and patient was unable to move out of bed. Now patient is home ambulatory with support of family members. On examination - surgical scar mark present. No scar / sinus. ROM painful in all aspects. There was no neurovascular deficit.
Operative Procedure : Under GA, Patient positioned lateral and parts cleaned and draped. Locking compression plate and Recon nail extracted. Head of femur extracted, Acetabulum reamed upto 50 mm and acetabular shell 50 mm inserted and fixed with two bone screws of adequate size with 36 mm ID poly cup inserted over it. S/T facture freshened, rose petalling done. Femoral reaming upto 13 mm and then trochanteric reaming done, trial femoral stem of 200 x 13 mm inserted. Trial reduction with 36 mm head with + 7.0 mm neck length given, found satisfactory, final implant of same size fixed with bone cement. Subtrochanteric fracture and medial wall of femur augmented with bone graft + mesh + SS wires. Wound closed in layers over suction drain and sterile dressing done."
A perusal of the letter dated 12.6.2009 written by complainant No.1 Dr. N.K. Bohra to Raksha TPA Pvt. Ltd. shows that the complainant No.2 Mrs. Om Kumari Bohra had fallen on the floor in the house leading to fracture of the right femur for which a cashless amount of Rs.1 lakh was allotted and paid to Sant Parmanand Hospital, Delhi in terms of the Policy No.33130/48104/75207. The above-referred is the number of the insurance policy which had been taken for the period from 24.12.2004 to 23.12.2005.
On a joint reading of the aforesaid letter and the Discharge Summary dated 9.5.2009 issued by Delhi Institute of Trauma and Orthopaedics Sant Parmanand Hospital, Delhi, it does transpires that when insured Mrs. Om Kumari Bohra sustained a fracture, a claim was paid to her through Sant Parmanand Hospital, Delhi and the said fracture was managed by DHS fixation in January 2005. It is also evident that the DHS fixation having failed, it was removed and recon nail was implanted along with bone grafting fixation on 21.9.2005 and augmentation with LCP on 1.10.2005. The Discharge Summary dated 9.5.2009 further shows that despite the aforesaid procedure, the insured did not fully recover and her pain having increased, she became confined to bed. Thereafter, the operative procedure at Sant Parmanand Hospital, Delhi was undertaken between 28.4. 2009 to 9.5.2009. In the aforesaid procedure, Locking Compression Plate and Recon Nail as well as the Head of Femur were extracted and Acetabulum, Acetabular were inserted and fixed that two bone screws of adequate size. Poly cup was then inserted over it followed by Rose Petalling and Femoral, etc.
It does appear from the aforesaid narration that the procedure performed at Sant Parmanand Hospital, Delhi was aimed at taking care of the problem which had earlier necessitated removal of DHS and implant of Recon Nail coupled with bone grafting fixation on 21.9.2005. The learned counsel for the complainant/respondent, however, maintains that the procedure performed in April/May 2009 was not in continuation of the earlier procedure undertaken at Sant Parmanand Hospital, Delhi and it was necessitated on account of a new problem which the complainant faced much after she had already been subjected to implantation of Recon Nail coupled with bone grafting fixation on 21.9.2005. He further states that he is carrying a certificate from Dr. Shekhar Aggarwal, the consultant in-charge by whom the procedure in April/May 2009 was performed at Sant Parmanand Hospital, Delhi and he may be permitted to place the said letter on record. However, since, in my view, the claim lodged by the complainant is otherwise payable I need not go into the question as to whether the problem for which the complainant was subjected to a operative procedure in April/May 2009 was undertaken due to continuation of the earlier problem for which she was treated firstly in January 2005 and thereafter in September 2005 or it was a new problem which came to be addressed by way operative procedure carried out in April/May 2009.
A careful perusal of the clause 4.1. of the terms and conditions attached to the insurance policy would show that the benefit of the policy was not available in respect of any pre-existing disease/condition for 48 months since inspection of the first policy with this insurer . The aforesaid clause, therefore, did not apply to a disease/condition which the insured acquired after the first policy with New India Assurance Co. Ltd. was taken by her. It is not in dispute that the first policy from the New India Assurance Co. Ltd. was taken by the complainants on 24.12.2004. It is also not in dispute that the fracture was sustained by the complainant after 24.12.2004. Therefore, the aforesaid fracture cannot be said to be the disease/condition existing at the time the first policy was taken by the complainant from New India Assurance Co. Ltd. The contention of the learned counsel for the petitioner Co. is that since no insurance cover was taken for the period from 24.12.2005 to 15.11.2006 and then from 16.11.2007 to 15.1.2008, the fracture sustained in January 2005 would be a pre-existing disease for the purpose of reimbursement under the insurance cover taken for the period from 16.1.2008 to 15.1.2009 and 16.1.2009 to 15.1.2010. However, on a plain reading of clause 4.1 as extracted hereinabove, I am unable to accept the said condition. What has to be seen for the purpose of the aforesaid clause is the date on which the insurance policy was taken by the insured from a particular insurer for the first time. Going by the plain and unambiguous words used in clause 4.1 of the terms and conditions attached to the policy, any condition/disease acquired after 24.12.2004 when the mediclaim policy from the petitioner Co. was taken for the first time cannot be said to be a pre-existing disease/condition, excluded in terms of the said clause.
It is next contended by the learned counsel for the petitioner that while submitting the proposal form for the year 15.1.2008 to 14.1.2009, the complainant withheld the information that a fracture had been sustained by her in January 2005 and she had taken reimbursement for the procedure which was undertaken at that time at Sant Parmanand Hospital, Delhi. In my view, since at the time of considering the proposal for the period from 15.1.2008 to 14.1.2009, the petitioner Co. knew about the previous episode as well as of the reimbursement paid by it to the complainant, it cannot be said to have been a misled on account of the aforesaid non-disclosure in the proposal form. In the said proposal form, the complainant had disclosed the previous policy No.330500/48/06/20/70000406 for the period from 16.11.2006 to 15.11.2007. This is not the case of the insurer that while taking the policy for the period from 16.11.2006 to 15.11.2007, the complainants had not disclosed the earlier policy which they had taken for the period from 24.12.2004 to 23.12.2005. No averment to this effect was made in the written version filed before the District Forum, Therefore, it would be difficult to say that there was concealment of a material fact and that concealment had misled the petitioner in the matter of accepting the proposal for the grant of the insurance cover. The petitioner Co. being in full known of the facts it cannot be said to have been misled as regards the previous treatment which the complainant had undertaken at Sant Parmanand Hospital, Delhi firstly in January 2005 and thereafter in September 2005.
As far as the disease mentioned at Sl. No.22 in clause 4.3. of the policy is concerned, the aforesaid provision of the policy is clearly inapplicable since this was not a case of joint replacement due to degenerative condition. The complainant had suffered a fracture after a fall at home. If joint replacement became necessary on account of the aforesaid injury, it would not be the case of joint replacement due to degenerative condition.
For the reasons stated hereinabove, I find no merit in the revision petition and the same is accordingly dismissed with no order as to costs.