NEW INDIA ASSURANCE COMPANY LIMITED vs TARSEM CHAND

THIS is an appeal filed against judgment and order dated 1.7.2004 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) in Complaint Case No. 910 of 2002.

THE respondent Shri Tarsem Chand took a medi-claim policy for the period from 30.11.1998 to 29.1.1999 from the appellant-New India Assurance Company Limited (for short hereinafter to be referred as Assurance Company), Divisional Office-I, SCO No. 462-463, Sector 35-C, Chandigarh and paid a premium of a sum of Rs. 3,827/-. Initially a cover note No. 496585 was issued on 30.11.1998 by one Shri Gandhi, an agent of the appellant Assurance Company. Shri Tarsem Chand was got medically examined from a doctor and necessary forms and documents were filled up by the aforesaid agent Shri Gandhi. This was followed by issuance of a policy of medi-claim insurance bearing No. 4835010004235 and the same was sent to the respondent Shri Tarsem Chand. This policy was further renewed up to 29.11.2000. It is alleged that on 13.2.1999 i.e., during the continuance of the earlier policy, Shri Tarsem Chand felt pain in his chest and was admitted in General Hospital at Panchkula from where he was referred to Escort Heart Hospital at New Delhi for treatment. On 1.3.1999 Angiography was conducted and some other tests were conducted by Dr. T.S. Kler. It was found that three arteries were blocked to the extent of 99% and as such Angiography was done on the respondent Shri Tarsem Chand at Escort Heart Hospital, New Delhi. During the last quarter of November 1999, the complainant again felt pain in his chest and was taken to Escort Heart Hospital for checkup and treatment. Angiography was again done on the complainant. After recovering from his illness, the complainant submitted details of expenses in the treatment before the appellant-Assurance Company and sought the reimbursement of the said amount vide letter dated 25.2.1999. All the bills and other details were submitted and mentioned. The claim was, however, not settled by the appellant-Assurance Company and the complainant filed Complaint Case No. 993 of 1999. The said complaint case was disposed of on the basis of an application moved by the complainant wherein he stated that he wanted to put forth his claim with the Assurance Company with regard to the expenditure incurred after 25.2.1999 and also to make a representation for settling his claim. The complaint was accordingly disposed of without prejudice to the rights of the complainant to make representation before the appellant-Assurance Company for release of the claim amount within the stipulated period who instead repudiated the claim vide letter dated 29.10.1999 on the ground that the complainant is suffering from the disease before the commencement of the policy. It was contended that at the time of commencement of the policy dated 30.11.1998, the complainant was duly examined by the doctor of the Assurance Company as well as the agent of the Assurance Company and the form was filled up by the agent of the Assurance Company after examining the complainant from every aspect and got it signed from the complainant.

It was also contended that at the time of the commencement of the insurance policy in the month of November 1998, the complainant was working as a welder and denter and was medically and physically fit to undertake the said job. The complainant filed the complaint case bearing No. 993 of 1999 contending that the appellant-Assurance Company wrongly repudiated his claim.

THE reply was filed by the appellant-Assurance Company contending, inter alia, that after the claim was lodged by the complainant, it was got investigated and it was found that the policy of insurance was obtained in connivance with the Development Officer without disclosing the true facts. It was contended further that no proposal form was obtained by the said Development Officer and it was found that this is the first medi-claim insurance policy. THE complainant was found to be a diabetic patient and had 99% blockage of one major artery of heart before the policy was obtained. THE appellant-Assurance Company obtained medical opinion of Dr. K.P. Singh, MD. D.M. of Inscol Hospital, Chandigarh who went through the entire case file and medical history and gave an opinion that it was a pre-existing disease, which was liable to be taken into consideration under exclusion Clause 4.1 of the policy and the claim was rightly repudiated. The complainant as well as the appellant-Assurance Company led evidence in the shape of affidavits. The District Forum after going through the evidence led by the parties held that the complainant Shri Tarsem Chand was not examined by Dr. K.P. Singh whose report was based on presumptions only, which he inferred from the case history of the complainant. Regarding the pre-existing disease, the District Forum held that the report of Dr. K.P. Singh could not be relied upon as being based on presumptions rather than facts and held that the repudiation of the claim was not justified. The complaint was allowed to the extent that the appellant-Assurance Company was directed to settle the claim of the complainant and reimburse the amount as per bills submitted by the complainant along with interest @ 6% per annum from the date of the repudiation i.e., 30.9.2002 till the payment is made. A sum of Rs. 1,100/- was awarded as costs of litigation.

FEELING aggrieved against judgment and order dated passed by the District Forum, the appellant-Assurance Company filed this appeal. Mr. Ashwani Talwar, Advocate appeared on behalf of the appellant. Notice of appeal was served on the respondent/complainant Shri Tarsem Chand who put his appearance along with his Counsel Mr. Y.S. Saini, Advocate. The record of the complaint case was summoned from the District Forum. We have heard the learned Counsel for the appellant Mr. Ashwani Talwar, Advocate and the learned Counsel for the respondent/complainant Mr. Y.S. Saini, Advocate and have carefully perused the impugned judgment and order and the record as well. The learned Counsel for the appellant-Assurance Company Mr. Ashwani Talwar, Advocate mainly relied on Annexure R-2, which is the medi-claim insurance policy and attached with the same is the standard terms and conditions containing Clause 4.1 which provides that all diseases/injuries which are pre-existing when the cover incepts for the first time were excluded under the exclusionary clause and it was under this clause that the Assurance Company repudiated the claim of the complainant and also relied on the investigation report Annexure R-1 of Shri H.S. Chadha approved G.I.C. Claims Investigator, which is dated 29.3.1999.

AS mentioned above, the report of the investigator is based on the record of treatment of the complainant. While concluding the report, it was observed, as under: "In the light of detailed investigation, as stated in the preceding paragraph of the report it is concluded: (a) No proposal form is obtained from the insured while insuring the person-giving the risk of mediclaim insurance policy. Nor he was medically examined. (b) AS per General Hospital, Sector 6, Panchkula and in the summary given at the discharge of Sh. Tarsem Chand on 17.2.1999 and on the basis of ECG and Stress Test Report Sh. Tarsem Chand was advised for Coronary Angiography at Escorts Heart Hospital, New Delhi. (c) Sh. Tarsem Chand was advised by Escorts Heart Institute and Research Centre, Delhi (as per insured) for By Pass Surgery which the insured wants to be done in the month for March 1999. And as such the insured will submit his final bills after complete treatment."

IT was mentioned that the report was issued without prejudice and was subject to the terms and conditions of the policy. The report of the investigator thus shows as a fact that the complainant suffered from heart ailment as a pre-existing disease. IT is not disputed that the complainant himself did not fill the proposal form and consequently he cannot be held guilty of suppressing the true state of affairs regarding his health at the time of applying for the medi-claim policy. So far as the opinion of Dr. K.P. Singh is concerned, he himself did not examine at any point of time Shri Tarsem Chand. Dr. K.P. Singh gave his report only on the basis of record that was submitted to him by the Assurance Company. The medical opinion of Dr. K.P. Singh of Inscol Hospital, Chandigarh thus could not be relied upon as the same is a mere opinion and that too based on the record of treatment of Shri Tarsem Chand. The District Forum has held that the opinion of Dr. K.P. Singh was based on presumptions only and he himself did not examine the patient. The report of Dr. K.P. Singh is contained in letter marked Exhibit R-3 addressed to the Head of New India Assurance Company Limited, Chandigarh.

In paragraph 8, Dr. K.P. Singh observed "Even if I believe genuineness of records supplied-patient had 99% blockage of one major artery of heart and, therefore, I presume patient should have been symptomatic for long duration well before commencement of policy (December - 1998). Blockage of coronary artery usually takes long time to occur". In paragraph 9, he wrote that as per records available to him, he would not recommend for admissibility of claim in view of strong indication that patient had pre-existing disease or disease duration was well before the commencement of policy. It is significant to note that Dr. K.P. Singh did not base his opinion on any such material and had no occasion of examining the patient himself. Apart from it, the appellant-Assurance Company did not file the affidavit of Dr. K.P. Singh in evidence. The District Forum, in our considered opinion, rightly disbelieved the report of Dr. K.P. Singh as being presumptive in nature and has rightly recorded a finding that the appellant-Assurance Company was not justified in rejecting the claim, which did not fall under the exclusionary Clause 4.1 of the medi-claim insurance policy.

RESULTANTLY, the appeal is devoid of merit and is dismissed. The parties are left to bear their own costs of appeal. The amount, which has been ordered to be paid by the appellant-Assurance Company to the respondent be now paid within a period of one month from the date of receipt of certified copy of this order. Copies of this order be sent to the parties free of charge. Appeal dismissed.