ORIENTAL INSURANCE CO. LTD. vs MR. VIDYA SAGAR VOHRA & ORS

This revision petition has been filed by Oriental Insurance Co. Ltd. who were OP No.1 before the District Forum challenging the order dated 14.3.2008 passed by the Delhi State Consumer Disputes Redressal Commission in Appeal No.FA-08/98 by which the State Commission has dismissed the appeal filed by the petitioner and upheld the order dated 8.11.2007 passed by the District Forum. By its aforesaid order, the District Forum accepted the complaint filed by respondent No.1 and granted the following relief:- "This Forum orders as follows:

OP-1 will pay Rs. 1,71,960/- (rounded) as insurance amount to the complainant.

OP-1 was not justified in refusing the genuine claim of the complainant which caused mental agony and amounts to deficiency in service for which OP will pay Rs. 40,000/- to the complainant as compensation.

OP-1 will pay Rs. 10,000/- to the complainant towards cost of litigation.

This order be complied with within 30 days."

Briefly stated, the facts leading to filing of this revision petition are that respondent/complainant obtained a mediclaim policy vide cover note dated 2.12.2003 from the petitioner Insurance Co. The complainant was injured due to fall on the road on 7.4.2004 and was admitted into Sir Ganga Ram Hospital upto 9.4.2004 and for this treatment, the petitioner Co. reimbursed him a sum of Rs.17,328/- as expenses incurred in the said hospital. Since the pain persisted in the knee, the complainant went to Indraprastha Apollo Hospital who advised surgery and this fact was brought to the notice of the petitioner Co. even before the surgery. The complainant was operated on 24.6.2004 for which he submitted a claim of Rs.1,71,957/- along with full details and bills. However, his claim was repudiated by the petitioner Co. and hence he filed his consumer complaint before the District Forum. On notice, the petitioner Insurance Co. resisted the complaint by filing its written statement in which the Insurance Co., while justifying the rejection of the claim of the complainant, took the plea that the ailment for which replacement of knee cap was done at the Apollo Hospital could not have been caused by an accident because the necessity for replacement of knee cap cannot arise suddenly or in six months period unless the disease of Osteoarthritis pre-existed for a long time. Parties led evidence in support of their contentions and on appraisal of the evidence adduced before it and hearing the parties, the District Forum accepted the complaint in terms of the directions reproduced above. Aggrieved of the order of the District Forum, the petitioner Insurance Co. challenged the same by filing its appeal before the State Commission which, as stated above, was dismissed by the State Commission by its impugned order upholding the order of the District Forum. In these circumstances, the petitioner Insurance Co. has now approached the National Commission challenging the impugned order through this petition.

We have heard Shri Pradeep Gaur, Advocate for the petitioner Insurance Co. and Shri Kuldeep Mansukhani, Advocate for the respondent/complainant. None has appeared for respondent Nos.2 & 3 who are proforma parties.

Learned counsel for the petitioner has submitted that the impugned order passed by the State Commission is perverse and devoid of merits and as such is not maintainable. He contended that the State Commission while passing the impugned order has ignored the opinion of expert doctors which is based on the treatment record submitted by respondent/complainant and the nature of disease for which the respondent had taken the treatment. According to learned counsel, the State Commission wrongly reached the conclusion to the effect that had the respondent not fallen, the need for replacement of the knee would not have arisen. This finding of the State Commission is not based on the documentary evidence available on the record. Learned counsel further submitted that the State Commission also failed to consider that the replacement of the knee cannot be treated as a fresh disease because the total knee replacement was due to primary Osteo-arthritis and not secondary to the injuries. In view of these grave errors, learned counsel pleaded that the impugned order cannot be sustained and is liable to be set aside. On the other hand, learned counsel for the respondent supported the impugned order based on concurrent finding of facts returned by both the foras below and pleaded for dismissal of the revision petition.

We have carefully considered the rival contentions and perused the record. In this case, we find that the defence of the petitioner has been non-suited by both the foras below which have returned their concurrent finding of facts while accepting the claim of the

respondent/complainant. The District Forum while accepting the complaint of the respondent has made the following observations in its order:- "OP has also admitted that complainant had initially taken treatment at Sir Ganga Ram Hospital on account of injuries sustained in a fall and was reimbursed. The plea of the OP is that complainant was having pre-existing disease when it took the policy. The policy was taken on 2.12.03 and knee replacement was done on 24.06.2004. The complainant may not have any problem with his knee when he was first admitted in Sir Ganga Ram Hospital but he felt the pain. The OP has placed reliance on the opinion of his own panel doctors. Such panel doctors are always at the back and call their pay master insurance co. The complainant had obtained opinion of Dr. Rajiv Sharma and Dr. Anil Sachdeva, both experts Dr. Rajiv Sharma is a senior consulting orthopaedic surgeon at Apollo Hospital and Dr. Anil Sachdeva is orthopaedic surgeon at Sunder Lal Jain Hospital and Max Hospital who have clearly opined that osteoarthritis can be aggravated due to any injury, stress, trauma etc. and it can lie in adornment stage for several years. The opinion of OP-2 is negated by the opinion of these two leading surgeons which have been placed on the record. The opinion of Dr. Arun Agarwal and Dr. Adesh cannot override the opinion of these leading surgeons as they are general physicians.

There is nothing on the record to show that the complainant was having pre existing disease of knees when the policy was obtained. Why was the OP prone to pocket the premium and issue the policy without bothering to obtain the opinion of its experts doctors and the various tests reports. The OP-1 has found lame excuse to reject the claim."

The State Commission in its reasoned order has also examined the contentions of the parties and has upheld the findings of the District Forum. We do not wish to reiterate the reasons recorded by the State Commission. However, perusal of the impugned order indicates that the State Commission rather than ignoring the opinion of the expert doctors, has gone by their opinion and has rejected the opinion of the panel doctors of the petitioner Insurance Co. There is no fresh plea taken or material placed by the petitioner Co. before us which would justify a different view. It has to be appreciated that section 21 (b) of the Consumer Protection Act, 1986 under which the present revision petition has been filed by the Insurance Co. confers only limited powers on this Commission whereunder this Commission can interfere with the impugned order only if we come across an illegality, material irregularity or jurisdictional error in the impugned order. In the present case, we have not come across any such material irregularity, illegality or jurisdictional error which would justify our interference. In view of this and also keeping in view the ratio laid down by Hon''ble Supreme Court in the case of Mrs. Ruby (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. [(JT) 2011 (3) SC 586] , we do not find any merit in this revision petition and hence dismiss the same but with no order as to costs.