ORIENTAL INSURANCE CO. LTD vs RAJINDER SINGH S/O. SHRI SAWINDER SINGH

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 31.07.2006, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as "the State Commission") in Appeal No. A-3274/2000, Rajinder Singh vs. Oriental Insurance Company, vide which, while allowing the appeal, the order passed by the District Consumer Disputes Redressal Forum, dated 05.10.2000 in Consumer Complaint No. 678/2000, filed by the present respondent, dismissing the said complaint, was set aside and the complaint was allowed.

Briefly stated, the facts of the case are that the complainant Rajinder Singh had obtained a medi-claim policy, bearing no. 48/2000/120 valid from 14.06.1999 to 13.06.2000 from the petitioner/OP Oriental Insurance Company by paying a premium of Rs. 3,686/-. At the time of taking the policy, the complainant mentioned in the proposal form that he had undergone operation of shunt (head). Further, in the proforma relating to ''Medical History to be completed by consulting physician (surgeon)'', it was mentioned that the complainant had ''tubercular meningitis hydrocephalus operation V.P. shunt January, 1999''. It was also stated that the patient was under anti tubercular drugs. The complainant had been operated for the shunt at the Sir Ganga Ram Hospital, where he remained admitted from 07.01.1999 to 31.01.1999. The Insurance Company accepted the proposal and issued the medi-claim policy to the complainant for an amount of Rs. 3 lakhs for the period 14.06.1999 to 13.06.2000.

It is stated that the complainant suffered shunt infection after taking the policy and consequently, he was admitted at Indraprastha hospital on 12.07.1999. An intimation was also sent to the Insurance Company, which was received by them on 13.07.1999. The Company, vide letter dated 21.07.1999, asked the complainant to send claim form and other medical documents in respect of the claim. The said documents were furnished by the complainant on 13.08.1999. The Insurance Company forwarded the claim papers to Dr. Vipin Gupta for his opinion about the claim. As per the report dated 22.08.1999 of the said doctor, the claim fell under Exclusion Clause ''4'' of the medi-claim policy. The Insurance Company repudiated the claim vide their letter dated 17.09.1999, in which they stated that as per the opinion of their doctor, the complainant had been suffering from a pre-existing disease and hence, the claim was not within the purview of the medi-claim policy. On a representation made by the complainant, the Insurance Company sent the matter to two panel doctors, namely Dr. Arun Aggarwal and Dr. Pran Nath, but the said doctors opined that the claim was not admissible. The Insurance Company intimated the complainant on 25.01.2000 that the claim was not admissible due to pre-existing disease. The complainant sent a legal notice to the Insurance Company, but the claim was not paid. The consumer complaint in question was then filed by the complainant, seeking directions to the OP Insurance Company to pay a sum of Rs. 3,16,672/- towards medical expenses incurred by him alongwith interest @ 24% per annum on the said amount. The complainant also sought directions for being awarded a compensation of Rs. 50,000/- for mental harassment etc. and Rs. 16,500/- towards legal expenditure.

The complaint was resisted by the OP Insurance Company by filing their written reply before the District Forum, in which they stated that under clause ''4'' of the Exclusion clause, the Company had rightly repudiated the claim and hence, there was no deficiency on their part. The District Forum, after taking into account the evidence of the parties, dismissed the complaint, saying that the Company had rightly repudiated the claim, based on the report of their panel doctor and further reviewed by two more doctors. The District Forum also referred to the Exclusion clause in the policy and stated that the OP Insurance Company had repudiated the claim after proper application of mind. Being aggrieved against the said order of the District Forum, the complainant challenged the same by way of an appeal before the State Commission. Vide impugned order, the State Commission concluded that the complainant had duly disclosed about his previous operation in the proposal form and since there had not been any concealment of information on his part, the claim was payable. Being aggrieved against the order of the State Commission, the OP Insurance Company is before this Commission by way of the present revision petition.

During arguments, it was contended by the learned counsel for the petitioner that although the complainant had duly mentioned in the proposal form and other documents about his pre-existing disease and the operation having been performed on him, but the case was hit by Exclusion clause ''4.1'' and ''4.2'' of the policy in question and hence, the claim had been rightly repudiated by them. The learned counsel for the OP Insurance Company has drawn attention to the said Exclusion clause, which reads as follows:-

"4. Exclusions:

4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of

4.1 Such diseases which have been in existence at the time of proposing this insurance. Pre-existing conditions means any injury which existed prior to the effective date of the insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance, whether or not the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of that pre-existing condition.

4.2 Any hospitalization/Domiciliary hospitalization expenses or any disease/injury incurred during first 30 days of commencement period of insurance cover except in case of injury arising out of accident.

The learned counsel for the Insurance Company in his oral arguments as well as written submissions stated that under Exclusion clause ''4.2'', any expenses on any disease/injury on hospitalisation etc. during the first 30 days of commencement of insurance cover, could not be reimbursed, except in the case of injury arising out of accident. In the present case, since the procedure in July, 1999 was done within 30 days of taking the policy, the claim was not admissible under clause ''4.2''. Similarly, under the Exclusion clause 4.1, any treatment for a pre-existing disease did not qualify for reimbursement of the claim. In the present case, the complainant had already undergone operation in January, 1999 and again in July, 1999, he underwent operation for the same disease and hence, the claim was not admissible keeping in view the Exclusion clause 4.1 as well. Referring to the observation of the State Commission about clause 4.3, the learned counsel stated that the said clause included a list of diseases, for which the claim was not payable during first year of the operation of the policy. The said clause was not applicable in the facts and circumstances of the present case.

The learned counsel for the respondent argued that the medical condition of the complainant as well as the operation undergone by him had been faithfully and correctly stated while filling the proposal form. The said condition had been duly recorded in the proforma to be completed by consulting physician/surgeon of the Insurance Company, Dr. S. K. Sogani as well. The Insurance Company should not have issued the medi-claim policy in question, if they did not want to incur the expenditure on the same disease later on. The learned counsel has drawn attention to the order of the State Commission in which, they have brought out that in January 1999, the operation was conducted on the right VP shunt, whereas the second operation was for the treatment of left VP shunt. The claim for the procedure done in July 1999, was therefore admissible. The learned counsel further stated that the terms and conditions of the policy had not been supplied to them and hence, the Exclusion clause was not applicable. The learned counsel has drawn attention to the orders passed by this Commission in Revision Petition No. 1696/2005, decided on 03.10.2006, Praveen Damani vs. Oriental Insurance Co. Ltd. and another order passed by this Commission in Revision Petition No. 686/2007, decided on 16.08.2011, Tarlok Chand Khanna vs. United India Insurance Co. Ltd. , saying that the Exclusion clause 4.1 etc. had been discussed in the said judgments and relying upon the decisions already made, the claim was payable.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The main issue that merits consideration in the matter is whether the complainant is entitled for the payment of claim in question, keeping in view the Exclusion clause 4.1 and 4.2 in the insurance policy. The insurance policy covers the period from 14.06.1999 to 13.06.2000. As per Exclusion clause 4.2, any hospitalisation expenses on any disease/injury incurred during first 30 days of commencement of the period of insurance cover is not liable to be paid, except in case of injury arising out of accident. In the present case, the complainant suffered shunt infection and was admitted in Indraprastha Hospital on 12.07.1999. Evidently, the treatment taken within 30 days of the commencement of the policy is not reimbursable. The State Commission has, therefore, taken an erroneous view that the claim was reimbursable to the complainant. Further, the Exclusion clause 4.1 says it clearly that the claim for the expenditure incurred on the treatment of a pre-existing condition shall also not be reimbursable. In the present case, the pre-existing disease was disclosed in the proposal form submitted by the complainant. He was re-admitted for treatment of the same disease in July, 1999. Going by the provisions of Exclusion clause 4.1, such claim is also not reimbursable. The contention made in the order of the State Commission that Exclusion clause 4.3 contains list of diseases for which the claim could not be paid during the first year of the operation of the policy, and the disease in question is not included in the said list, is not relevant in the present case, because the claim could not be paid in view of the Exclusion clause 4.1.

The learned counsel for the appellant has taken the argument that the Insurance Company should have refused to issue him the policy, because his medical condition had been fully disclosed in the proposal form and the report of the panel doctor of the Company. This contention is, however, not valid because the Insurance Company is not debarred from entering into such a contract of insurance; rather the complainant should have been vigilant and should have tried to know and understand the conditions governing the policy.

The learned counsel for the complainant also argued that the terms and conditions governing the policy had not been handed over to them at the time of giving the policy. There is nothing on record to substantiate this version of the complainant that he was not made aware of the terms and conditions of the policy.

Based on the discussion above, it is held that the State Commission have taken an erroneous view in the matter in allowing the consumer complaint. This revision petition is, therefore, allowed and the impugned order is set aside. The consumer complaint stands dismissed with no order as to costs.