RAJINDER SINGH vs ORIENTAL INSURANCE CO LTD

VIDE impugned order dated 5.10.2000, complaint of the appellant seeking compensation arising out of mediclaim policy was dismissed on the ground that appellant was not entitled to the claim as he had to undergo treatment for pre -existing disease about which he had not made a disclosure in the proposal form. Feeling aggrieved, the appellant has preferred this appeal.

BROAD facts are more or less admitted and are like this. Appellant had taken individual mediclaim policy bearing No. 48/2000/120 valid from 14.6.1999 to 13.6.2000 from the respondent by paying premium of Rs. 3,686. He at the time of taking the policy specifically mentioned in the proposal form about his medical history and the respondent accepted the proposal and accordingly issued a clean policy without any condition attached to it. Unfortunately he suffered shunt infection and consequently was admitted at Inderprastha Hospital on 12.7.1999. Respondent was informed about it on 13.7.1999 vide his letter dated 12.7.1999. Appellant received respondents letter dated 21.7.1999 on 1999 whereby he was informed to complete certain formalities as mentioned in the said letter to enable the respondent to process his claim. After the discharge from the hospital on 5.1999, the complainant vide letter dated 13.1999, completed required formalities. The respondents vide their letter dated 17.9.1999, repudiated his claim by stating that it was not within the purview of the present policy on the ground of pre -existing disease as per their doctors opinion. 3. Is an admitted fact that the appellant underwent V.P. shunt operation in January 1999 i.e., before taking the said policy on 14.6.1999 and the fact of operation of shunt (Head) was mentioned in the proposal from of the policy. The appellant suffered infection in the shunt and was again admitted in the Inderprastha Hospital on 12.7.1999 for shunt operation. The case of the appellant was that he had already informed the respondent about the disease in the proposal form and the respondent took no objection to it and issued him a clean policy and now they have repudiated the claim without any basis whereas they are liable to pay him Rs. 316,672 spent on his treatment.

IT appears that the District Forum has mainly relied upon the report of panel doctor of the respondent, namely, Dr. Vipin Gupta and exclusion Clause 4.1 which is as under : 4.1 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 - 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 this 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 diseases will be considered part of that pre -existing condition.

ACCORDING to the report of Dr. Vipin Gupta, the appellant was suffering from tubercular meningitis and had undergone shunt operation in January, 1999. He developed infection in shunt and was again admitted in hospital. His right shunt was removed and reservoir placed and later on left. V.P. shunt was done. From this report it is clear that complainant suffered from the same disease and his claim was liable to be repudiated. On the contrary, the appellant has referred and relied upon proposal form duly signed by panel doctor of the respondent, Dr. S.K. Sogani who after thorough examination found his general condition as normal.

NOW the question arises whether the information provided to the respondent in the proposal form as to the insured having been operated upon for shunt in January, 1999 besides suffering from tubercular meningitis comes within the pre -existing disease as contemplated in Clauses 4.0 and 4.1 or not. The appellant was operated upon for the aforesaid disease in January, 1999. He obtained mediclaim policy in question valid for the period from 14.6.1999 to 13.6.2000.

IT is not the case where the appellant had concealed the factum of having been suffering from a particular disease and having been operated upon for the same. So much so the panel doctor of the respondent examined the appellant medically and found his general conditions normal. Even the systematic examination was found to be normal. Six months after the first operation the appellant was admitted for the treatment of invocation in the shunt. It is noteworthy to mention that first operation was conducted on the right side and right VP shunt whereas second operation was for the treatment of left VP shunt. Mere circumstance of appellant having landed himself in the hospital for treatment of the left VP shunt cannot bring the disease or the treatment within the ambit of a pre -existing disease as contemplated by Clause 4.1. Once the appellant had clearly declared that the shunt was done in January, 1999 and he was suffering from tubercular meningitis the respondent should have examined the patient very carefully or after six months he suffered infection in the other shunt i.e., his left shunt and not on the same shunt. There is another clause of the proposal form which is 4.3 which excludes certain diseases during the first year of the operation of the policy. The disease in question does not figure in the said clauses. Unless and until a consumer conceals the factum of his having been hospitalised for treatment or operated upon for any disease in the near proximity of mediclaim policy he need not disclose about other maladies that do not affect his daily life and are controllable on day -to -day basis.

IN view of the aforesaid facts we come to the conclusion that the District Forum erred in invoking Clause 4.1 of the policy i.e., exclusion clause and wrongly relied upon the report of the panel doctor. Appellant was neither guilty of concealment of treatment/operation of a pre -existing disease but also his general condition and other health profile was at the time of taking the policy found normal and, therefore, the repudiation was wholly uncalled for.

IN the result, we allow the appeal, set aside the impugned order and direct the respondent to pay Rs. 3,00,000 (Rupees three lacs) towards medical expenses incurred by the appellant besides Rs. 5,000 as cost of litigation. Since it was a case where the question to be decided by the respondent was such which needed interpretation of Clause 4.1. There is no ground for awarding interest as interest is awardable only where there are strong equitable grounds. Above payment shall be made within one month.

APPEAL is allowed to the aforesaid extent.

F .D.R/Bank guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities. A copy of this order as per the statutory requirements, be awarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal allowed.