ORIENTAL INSURANCE COMPANY LTD vs ANKIT BANSAL

This revision petition has been filed by the petitioner, Oriental Insurance Company Ltd. against the order dated 15.04.2013 of the Delhi State Consumer Disputes Redressal Commission, (in short ''the State Commission''), wherein appeal filed by the petitioner has been dismissed and the order of the District Consumer Disputes Redressal, Forum, Kashmre Gate, Delhi, (in short the ''District Forum'') has been upheld.

The facts of the case are as under: M/s. Intersoft Data Labs Pvt. Ltd. (hereinafter referred to as ''Intersoft'') obtained a Group Mediclaim Policy for their staff and their family members from the petitioner Insurance Company for the period 31.12.2004 to 20.12.2005 as per the list of employees to be submitted by Intersoft.

Mr. Ankit Bansal, the complainant, was appointed in Intersoft on 20.6.2005 and the said Intersoft issued the appointment letter to the complainant on 20.6.2005. Under the said appointment letter, the complainant was covered under the Group Mediclaim Policy for Rs.1.0 lac.

Vide letter dated 12.7.2005, Intersoft requested the petitioner insurance company to include name of the complainant in the policy along with the other employees and to inform the premium which was to be paid.

The petitioner insurance company informed the premium which was paid by Intersoft, the employer on 13.7.2005 and issued the Endorsement covering the said employees, including the complainant w.e.f. 13.7.2005. Thus, Mr. Ankit Bansal and his family members were insured under the policy w.e.f.13.7.2005.

Vide letter dated 18.7.2005, the petitioner insurance company informed Vipul Medcorp TPA Pvt. Ltd. that the additional members have been included in the policy which included the complainant.

The complainant lodged the claim in respect of hospitalization of his mother Smt. Darshan Bansal in Fortis Hospital on 20.7.2005 through M/s. Vipul Medcorp TPA Pvt. Ltd. Thereafter the investigations were conducted in respect of the treatment taken by the complainant''s mother.

The discharge summary dated 22.7.2005 states that the Chief Complaints of the patient were heaviness and hardness in lower abdominal area and same has been continuing for the last 6 months. It has been further stated in the past history of the patient that she had been "Operated for displaced CU T in 1979 laparoscopically at St. Stephen''s Hospital. The discharge summary of the patient is self- explanatory and without any discrepancy, which itself shows that the patient has been suffering from the disease/complaint for the last 6 months.

After conducting the complete investigation and through scrutiny of the medical document and after consulting the Doctor, M/s. Vipul Medcorp TPA Pvt. Ltd. came to the conclusion that the patient was a case of Fibroid Uterus and as per the discharge summary of the patient, which itself is submitted by the complainant for processing the claim, patient had been suffering from the heaviness and hardness in lower abdomen since 6 months prior to hospitalization and was diagnosed as a case of fibroid uterus. Total abdominal hysterectomy with B/L Salpingo Oopherectomy was done and as per records the date of coverage of the employee is 13.7.2005. The TPA recommended repudiation of claim under Exclusion Clause 4.1. and 4.3.

The claim was repudiated by the petitioner company vide letter dated 6.11.2005. Aggrieved by the decision of the insurance company, the insured filed a complaint before the District Forum.

The District Forum rejected the contentions of the insurance company and held that since the complainant''s employment with Intersoft was with effect from 20.6.2005 and the mother of the complainant complained of the ailment only on 20.7.2005, which is after 30 days, Exclusion Clause 4.3 would not apply. It was further held that the mother of the complainant was not aware of the disease at the time of appointment of the complainant and therefore, the claim would not fall under exclusion 4.1 of the policy. The District Forum, thus directed the insurance company to pay a sum of Rs.66,996/- as compensation and Rs.3000/- as cost of litigation.

The petitioner insurance company filed an Appeal against the Order of the District Forum. The State Commission by order dated 1.2.2011 dismissed the application for condonation of delay and consequently the appeal filed by the petitioner insurance company was dismissed.

Order dated 1.2.2011 passed by the Hon''ble State Commission dismissing the appeal has been challenged by the petitioner insurance company before this Commission by filing Revision Petition No.1396 of 2011.

By order dated 11.10.2011 this Commission allowed the Revision Petition and restored the First Appeal to its original number and status.

By impugned order dated 15.4.2013 the State Commission has dismissed the Appeal filed by the petitioner insurance company holding that the claim of the respondent/insured does not fall under the Exclusion Clause 4 of the policy as contended by the petitioner insurance company and upheld the order passed by the District Forum.

Feeling aggrieved by the impugned order dated 15.4.2013 passed by the State Commission, in First Appeal No.193/10, petitioner insurance company has preferred the instant Revision Petition.

We have heard learned counsel for the petitioner as well as respondent, who had appeared in person and perused the records carefully. Learned counsel for the petitioner stated that the respondent, Ankit Bansal was appointed in Intersoft Data Labs Pvt. Ltd. on 20.6.2005 and the said Intersoft issued the appointment letter to the complainant on 20.6.2005. Under the said appointment letter the complainant was covered under the group mediclaim policy for Rs.1 lac. Vide letter dated 12.7.2005 Intersoft requested the petitioner insurance company to include name of the complainant in the policy along with the other employees and to inform the premium which was to be paid. The petitioner insurance company informed the premium which was paid by Intersoft on 13.7.2005 and issued the endorsement covering the said employees, including the complainant w.e.f. 13.7.2005. Thus, Mr. Ankit Bansal and his family members were insured under the policy w.e.f. 13.7.2005. The complainant lodged the claim in respect of hospitalization of his mother Smt. Darshan Bansal in Fortis Hospital on 20.7.2005. The discharge summary dated 22.7.2005 states that the Chief Complaints of the patient were heaviness and hardness in lower abdominal area and the same has been continuing for the last 6 months. Learned counsel also pointed out that the past history of the patient revealed that the patient was operated for displaced CU T in 1979 laparoscopically at St. Stephen''s Hospital. The claim was repudiated by the petitioner company vide letter dated 6.11.2005. This was done after conducting the complete investigation and through scrutinization of the medical documents and after consulting the doctors, wherein Insurance Company came to the conclusion that the patient was a case of Uterus Fibroid and as per the discharge summary of the patient submitted by the complainant himself, she had been suffering from the heaviness and hardness in lower abdomen since 6 months prior to hospitalization. As per Exclusion Clause 4 of the policy: "(a) 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:

(b) All diseases/injuries which are pre-existing when the cover incepts for the first time.

(c) Any disease other than those stated in clause 4.3 contracted by the insured person during the first 30 days from the commencement date of the policy. This exclusion shall not however, apply if in the opinion of panel of medical practitioners constituted by the company for the purpose the insured person could not have known of the existence of the disease of any symptoms or complaints thereof at the time of making the proposal for insurance to the company. This condition ''c'' shall not however appoint case of the insured person having been covered under the scheme or group insurance scheme with any of the Indian Insurance Companies for a continuous period or preceding 12 months without any break. .........."

Learned counsel for the petitioner also pointed out that the policy document is a contract between insurer and the insured based on trust. In the present case, the claim does not survive on account of two exclusions. First, is that company is not liable to pay for any expenses incurred on treatment within 30 days of the commencement of the policy and second is relating to pre-existing disease. In the present case, it is clearly proved from the discharge summary that the patient was suffering from the disease for about 6 months prior to hospitalization. Therefore, the claim is excluded on account of pre-existing disease. It is a settled principle that the policy cover only starts from the date of premium payment. In this case, the premium was paid on 13.07.2005 and therefore, the policy in respect of the mother of the respondent started w.e.f. 13.07.2005. The patient was hospitalized on 20.07.2005, which is within 30 days from the commencement of the policy. The fora below have not appreciated the trust involved between the insurer and the insured in respect of terms and conditions of the policy. The order of the State Commission as well as the District Forum suffer from material irregularity and illegality and therefore, are liable to be set aside.

Respondent stated that he was appointed an employee of the Intersoft Company on

6.2005 and since then he became member of the policy as per the appointment letter. Therefore, hospitalization on 20.7.2005 was just after 30 days and does not come under the concerned Exclusion Clause. In fact, the mother of the respondent complained of heaviness and hardness in the lower abdomen and was admitted on 20.7.2005 and was discharged on 22.7.2005 and Rs.14,748/- was spent on this hospitalization. Various investigations were carried out during hospitalization. Had it been a case of pre-existing disease, proper specific treatment would have been given by the doctor of the hospital, which is not the matter in the present case. Only symptomatic treatment was given during the hospitalization and that is why, the patient was discharged in two days. The Uterus Fibroid was diagnosed for the first time during this investigation. Obviously, the patient was not aware of this disease and came to know for the first time during hospitalization. The patient was operated for Uterus Fibroid on 5.8.2005 and she was discharged on 11.8.2005 and the respondent spent Rs.52,248/- only for this operation and hospitalization. Respondent also stated that the basic principle for denial of claim on the basis of pre-exiting disease is that the insurance company must prove that the patient was suffering from pre-exiting disease. Here, the insurance company has not filed any document, which can prove that the patient was getting treatment for Uterus Fibroid before being hospitalized on 20.7.2005. As the disease was detected only on 20.7.2005, it cannot be treated as pre-exiting disease prior to the commencement of the policy. Therefore, the present case is not covered under the Exclusion Clause relating to pre-existing disease. The main treatment of operation of Uterus Fibroid was done in the month of August, 2005, which is much beyond the period of 30 days from the date of commencement of the policy. Thus, both these Exclusion Clauses do not apply in the present case. Hence, the revision petition is devoid of any merits.

After hearing the contentions of learned counsel for the petitioner and respondent in person and perusing the records, we are of the view that the disease of Uterus Fibroid was first detected only when the patient was hospitalized on 20.7.2005. The petitioner has also not submitted any other proof like any other treatment by the patient before 20.7.2005. As various investigations were done during hospitalization of the patient from 20.7.2005 to 22.7.2005, we conclude that the patient was not aware of this ailment before 20.7.2005. Hence, we are of the opinion that the Clause relating to pre-existing disease is not applicable in the present case. So far as Exclusion Clause relating to expenses for treatment before 30 days from the commencement of the policy is concerned, we find that expenditure of Rs.14,748/- spent on the first hospitalization of the patient from 20.7.2005 to 22.7.2005 comes well within this Exclusion Clause and the petitioner is not liable to pay this amount. However, the expenses of Rs.52,248/- incurred on operation and hospitalization of the patient from 5.8.2005 to 11.8.2005 are well beyond 30 days and the petitioner is liable to pay this amount to the respondent.

Based on the above discussions, the revision petition is partly allowed and the order dated 15.4.2013 of the State Commission and order dated 04.12.2009 of the District Forum are modified to the extent that petitioner/opposite party is liable to pay Rs.52,248/- (Rupees Fifty Two Thousand Two Hundred Forty Eight Only) instead of Rs.66,996/- to the respondent/complainant as cost of treatment along with interest @ 6% per annum from the date of order of the District Forum i.e. 04.12.2009 till realization (instead of 12% per annum ordered by the District Forum). Remaining directions given to the opposite party in the order of the District Forum remain unchanged.