Oriental Insurance Co. Ltd. vs BEAUTY DASGUPTA

THESE two appeals have arisen out of order dated 17.12.1998 passed by C.D.F.-II. By the said order, the claim of the complainant was allowed in part and the Insurance Company was directed to pay Rs. 16,318/- to the complainant together with interest @ 12% p.a. from the date of communication of the order till payment. A sum of Rs. 300/- was awarded as cost of the proceeding. Being aggrieved by the said order the Insurance Company appealed challenging the decision of the Forum. The complainant has also filed the second appeal claiming interest and compensation.

SINCE these two appeals arose out of the same order and common question of fact and law are involved they are heard together and disposed of. The case of the complainant was that she was covered under a Medical Insurance Policy for the period from 8.9.1994 to 7.9.1995. She fell ill on 28.11.1994 and was examined by her family physician Dr. Ashim Chatterjee who referred her to Dr. Ashis Mukherjee for examination and treatment. Dr. Mukherjee advised Gall-bladder operation and the operation was done in a Nursing Home on 23.12.1994. The patient was discharged from the said Nursing Home on 26.12.1994. Thereafter, the complainant lodged claim for Rs. 16,318/- with the Insurance Company by a letter dated 27.1.1995. The Insurance Company repudiated the claim on 28.2.1995 on the ground that the disease was pre-existing at the time of taking out the policy. The repudiation was done on the basis of opinion of two senior doctors of repute having long standing experience in medical field. It was claimed that the repudiation was not arbitrary since it was based on the opinion of two eminent doctors and as such there is no deficiency in service. The Forum, however, rejected the contention of the Insurance Company and allowed the claim in full. But it did not allow the claim for compensation.

So, the complainant has also filed appeal claiming compensation and interest.

IN the first place, learned Lawyer for the appellant submits that the claim was time barred inasmuch as the claim was repudiated on 20.2.1995 and the claim was lodged with it on 8.9.1997. He submits further that there was no prayer before the Forum for condonation of delay under Section 24A of the Consumer Protection Act praying for condonation of the delay. During arguments the complainant could not produce any paper to show that in fact any such petition had been filed and the prayer for condonation was allowed by the Forum. It is evident that the claim was lodged long after the expiry of the period of limitation. IN the circumstances, it cannot but be held that the claim is barred by limitation. The learned Counsel for the complainant submits that the plea of limitation was not taken before the Forum and as such the INsurance Company cannot be allowed to urge this point in appeal. Since it is a point of law the INsurance Company is, in our view, within its right to agitate this point. Therefore, the contention of the learned Counsel for the complainant is rejected. The claim was repudiated on the ground that the disease was pre-existing on the date of taking out the policy. This is, however, denied by the complainant. The repudiation was based on the opinion of two senior doctors of repute having long standing experience in the field. They are Dr. Subrata Sen and Dr. A. Chatterjee (Annexure ''B''). It appears from the certificates granted by the said two doctors that the disease was pre-existing and the complainant was aware of it. Learned Counsel for the complainant submits that the reports of these two doctors should not be relied upon on the ground that they are the panel doctors of the Insurance Company. It may be true that they are empanelled by the Insurance Company. Nevertheless, the fact remains that they have independent practice having much experience in the field. There is no contrary opinion on the side of the complainant. The learned Counsel for the Insurance Company submits that when the Insurance Company came to the conclusion that the disease was certainly pre-existing at the time of taking out the policy in good faith, and after consideration of the claim thoroughly, repudiated the claim, it cannot be said that there was deficiency in service. In this connection he has referred to a case of the Hon''ble National Commission reported in 1997 (1) CPR 22, where it was held that where the Insurance Company had taken decision on the claim after due application of its mind, the said decision cannot be said to have been taken otherwise than in good faith. The learned Counsel for the complainant has drawn our attention to a case of this Commission reported in III (1993) CPJ 1791, in the case of Debasis Basu v. National Insurance Company Limited, on a reference to this case we find that the facts are dissimilar. Here the opinion of the Insurance Company was based upon the report of two experts while there is no contrary evidence on the side of the complainant. Both the doctors are of clear opinion that the disease was existing at the time of taking out the policy. They are of further opinion on the basis of report of Histo-pathology that the disease existed when the policy was obtained. The operation was done within 2 months after the policy was obtained. In the circumstances, it cannot be said that there was deficiency in service on the part of the Insurance Company when the claim was repudiated on the basis of the reports of experts. In our view, therefore, the Forum was not justified in allowing the claim. The Forum ought to have dismissed the claim. So, the judgment passed by the Forum cannot be sustained. We feel no hesitation to allow the appeal which we hereby do. The judgment of the Forum is set aside. So we allow the Appeal No. 58/A/99. We dismiss the other appeal bearing No. 73/A/99. This judgment will govern both the appeals and they are disposed of by this common judgment. Appeal No. 58/A/99 allowed. Appeal No. 73/A/99 dismissed.