Oriental Insurance Co.Ltd. vs V.K.SHARMA

THE present appeal is directed against orders of the District Forum (New Delhi) dated 1.8.2001, passed in Complaint Case No. 920/98 - entitled Mr. V.K. Sharma & Anr. v. THE Oriental Insurance Company Limited.

THE relevant facts, in brief, are that the respondent had obtained a Mediclaim Insurance Policy for himself and his family valid from 10.11.1995 to 9.11.1996, on payment of a premium of Rs. 5,670/- by Cheque No. 27946 dated 7th November, 1995. In the proposal Form the respondents had mentioned that on account of a fracture in the right thigh of respondent No. 2 a nail was inserted by Dr. V.B. Bhasin, Orthopaedic Surgeon in Ganga Ram Hospital, New Delhi which was removed by surgical operation in October, 1995. A fitness certificate was duly obtained from the said doctor dated 8th November, 1995 whereby Dr. V.B. Bhasin had certified that after the removal of the nail from the right thigh of the respondent No. 2 in 1995 she had no handicap or disability on account of the said operation. However, on 22nd January, 1996 the respondent No. 2 fell down at home and in the process fractured her right thigh bone and had to undergo treatment and hospitalization for the same in Ganga Ram Hospital, which fact was duly intimated to the appellant Insurance Company on 22nd February, 1996. THEreafter the respondent also lodged his claim, for the reimbursement of the amount spent on the said treatment on 13th March, 1996. THE said claim of the respondents was repudiated by the appellant vide letter dated 19th April, 1996 on the ground that the injury for which the calim had been preferred was pre-existing and, as such, the same was not covered under the terms and conditions of the policy. THE respondents vide letter dated 4.7.1996 again requested the appellant to reconsider the claim but the appellant vide reply dated 11.7.1996 again reierrated their stand and therefore the respondents were constrained to file a complaint before the District Forum for the redressal of their grievances. The appellant Insurance Company in its reply/written version filed before the District Forum stated that the claim of the respondents had been rightly repudiated on account of the fact that in terms of the case sheet of Ganga Ram Hospital, prepared just after respondent No. 2 had undergone A.O. plate fixation and bone grafting on 24th January, 1996, there was no mention of any incident as mentioned by the respondents in their complaint regarding the fall and refrecturing of right thigh bone of respondent No. 2. On the contrary the said summary disclosed that the complainant had been undergoing treatment for the said pre-existing injury since September, 1995. Furthermore, the matter was referred for opinion of Dr. Vinod Gandotra, Specialist for fracture and bone diseases, who opined that it was a case of pre-existing disease/injury and, as such, excluded from the policy coverage in terms of exclusion Clause No. 2.1.15 of the insurance policy in question and, therefore, there was no deficiency in service on the part of the appellant in repudiating the claim of the respondents.

The learned District Forum on the basis of material on record held that in terms of the specific endorsement made on the cover note of the policy issued to the respondents that only pre-existing disease was excluded and not injury, the appellant had wrongly repudiated the claim of the respondents and as such, was liable for the said deficiency in service. The appellant was, therefore, directed by the District Forum to make payment of Rs. 37,000/- or a lesser amount as submitted in the claim filed by the respondents before the appellant, together with interest @ 9%, from the date of the repudiation of the claim i.e. 19th April, 1996, till realization, together with Rs. 5,000/- as compensation for the mental agony suffered by the respondents, as well as, cost of litigation amounting to Rs. 3,000/-.

AGGRIEVED by the aforesaid order the appellant has preferred the present appeal. We have carefully perused the documents/material placed on record, as well as, have heard the submissions advanced on behalf of the parties. The main contention of the appellant in the present appeal is that in terms of Clause 2.1.15 of the Mediclaim Policy in question, any claim in respect of treatment taken for a pre-existing disease/injury, was excluded in terms of the said policy and, as such, the finding of the learned District Forum as per the impugned order that only pre-existing disease was excluded and not injury, was erroneous. It was further contended by the appellant that treatment for which the respondent No. 2 had undergone and had incurred expenses was a continuation of the pre-existing injury i.e. fracture which had occurred in the right thigh bone of respondent No. 2 and a nail had been inserted therein which was removed on 15th October, 1995. The said facts were alleged to have been proved from the summary sheet prepared at Ganga Ram Hospital at the time of admission of respondent No. 2 in the said hospital on 22nd January, 1996. However, so far as the contentions of the appellant are concerned, it is an admitted fact on part of the appellant that the cover note issued to the respondent in respect of the Mediclaim Policy, bears the endorsement subject to exclusion of existing disease as mentioned on the proposal form. Had the intention of the appellant been to exclude the injury mentioned in the proposal form the word injury instead of disease would have been mentioned. Furthermore, as per the averments of the respondents even the policy in question containing the exclusion clause 2.1.15 had not been delivered to them till after the lodging of their claim and, as such, was not within the knowledge of the respondents. Therefore the appellant Insurance Company was bound by the endoresment on the cover note issued to the respondents, that only pre-existing ''disease as mentioned in the claim form was excluded. Be as it may, as per the case of the respondents, the respondent No. 2, suffered a fracture in her right thigh bone on 22.1.1996 on account of a fall. The summary sheet prepared at the time of hospitalization of respondent No. 2 on 22.1.1996, relied upon by the appellant Insurance Company also acknowledges the fact that on account of sudden pain in the right thigh of respondent No. 2 while walking she had been unable to bear out. Furthermore, even as per the opinion of Dr. Vinod Gandotra, respondent No. 2 was hospitalized for the arrangement of refracture of the right shaft femur. Thus it is borne out of the documents relied upon by the appellant Insurance Company itself that there was a second fracture as alleged by the respondents and therefore the claim filed in respect of the said treatment with the appellant, was on account of a fresh injury and not a pre-existing one. Therefore, we are unable to subscribe to the view point of the appellant that the claim of the respondents was rightly repudiated on account of pre-existing disease/injury.

AS such, in the circumstances of the case, the present appeal, filed by the appellant, being devoid of merit, is liable to be dismissed and is dismissed accordingly. However, in the circumstances of the case the parties are left to bear their own costs. The present appeal, filed by the appellant, stands disposed of in above terms. Appeal disposed of.