Ram Swaroop Agrawal vs NEW INDIA ASSURANCE CO. LTD.

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 03.11.2007, passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 1581/2006, ''''Ram Swaroop Agrawal & Anr. versus New India Assurance Co. Ltd. & Anr. '''' vide which appeal against the order dated 10.07.2006, passed by the District Consumer Disputes Redressal Forum, Gwalior, dismissing the consumer complaint no. 391/2004, was ordered to be dismissed and the order of the District Forum was upheld.

IN the revision petition, the New India Assurance Co. Ltd. was made as respondent no. 1 and M/s Paramount Health Services Private Limited, Bhopal was made as respondent no. 2. However, during the pendency of the revision petition, an application was moved for deletion of respondent no. 2 from the array of parties. The said application was allowed and amended memo of parties was taken on record. The brief facts of the case are that petitioner no. 1 / complainant no. 1 and his wife Shakuntala Devi Agrawal, obtained a mediclaim policy from the respondent Insurance Company for the period from 31.12.2001 to 30.12.2002 for an amount of Rs.2,00,000/ -, which was subsequently renewed for the period from 31.12.2002 to 30.12.2003 on payment of a premium of Rs.9,469/ -. During the tenure of the policy, Smt. Shakuntala Devi suffered from ailment of fever, abdominal and chest pain in the month of March 2003. She remained under treatment with various hospitals including the Apollo Hospital. A claim of Rs.1,24,682/ - was made under the mediclaim policy with respect to expenditure on treatment taken by Smt. Shakuntala Devi from various hospitals. The said claim was, however, repudiated by the OPs on the ground that Smt. Shakuntala Devi had been suffering from diabetes and hypertension for the last 15 years. The consumer complaint in question, was then filed before the District Forum. However, during the pendency of the case, Smt. Shakuntala Devi died and the petitioners no. 2 (a to d) were impleaded as parties in her place. The District Forum after taking into account the evidence submitted before them, dismissed the consumer complaint in question. The State Commission vide impugned order also dismissed the appeal filed by the petitioners/complainants. The present revision petition has been moved against this order.

AT the time of hearing, the learned counsel for the petitioners/complainants stated that the factum of suffering from diabetes and hypertension had been declared by the petitioners before taking the policy in question to the Insurance Company and this fact has been stated in the order of the District Forum as well. Referring to the repudiation letter sent by M/s. Paramount Health Services Pvt. Ltd., the learned counsel says that the claim has been repudiated stating as follows: - ''''As per Discharge Summary of Indraprastha Apollo Hospital, the patient Mrs. Shakuntala Devi Agrawal is a known case of Diabetes and Hypertension for the last 15 years and the disease for which she took the treatment is a complication of Diabetes & Hypertension. Therefore, the disease was Pre -existing at the time of taking insurance policy and accordingly the claim is repudiated under condition no. 4.1 of the Policy. ''''

REFERRING to order passed by the Delhi High Court in ''''Hari Om Agrawal versus Oriental Insurance Co. Ltd. '''' [as reported in AIR 2008 Delhi 29], the learned counsel stated that any exclusion clause which runs counter to the desired objectives of the Policy is wrong. The Hon ''ble High Court has observed as follows in the said judgement: - '''' ... ... ... ...It is apparent that even if there were known diseases or conditions, which were disclosed and for which there was a likelihood of complications arising in the future, the insurer sought to distance itself from the liability. There is no dispute here that diabetes was a condition at the time of submission of proposal; so was hyper tension. In a sense these were ''''old ailments'' ''''; the petitioner was advised to undergo ECG, which he did. The insurer accepted the proposal and issued the cover. One may ask, what then was the cover for. It is not an accident cover policy, or a life policy. Now, it is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications, etc. depending upon varied factors. That implies that there is probability of such ailments; equally they can arise in non -dibetics or those without hypertension. Unless the insurer spelt out with sufficient clairity, the purport of its clauses, or charged a higher premia, at the time of accepting the proposal, the insured would assume and perhaps, reasonably that later, unforeseen ailments would be covered. Thus, it would be apparent that giving a textual effect to Clause 4.1 would in most such cases render the mediclaim cover meaningless; the policy would be reduced to a contract with no content, in the event of the happening of the contingency. Therefore, I am of the opinion that Clause 4.1 cannot be allowed to override the insurer''s primary liability; the ''''main purpose '''' rule would have to be pressed into service. This finding is reinforced in this case, as the insurer renewed the policy, in 2006, after the petitioner underwent the CABG procedure. ''''

The learned counsel has further drawn attention to the order passed by this Commission in Revision Petition No. 2640 and 2641 of 2005 decided on 3.04.2006, ''''New India Assurance Co. Ltd. versus Vasant Rao '''' in support of his argument. It has been observed in this order as follows: - '''' ... ....He had not hidden the fact of his having undergone the bye -pass surgery in 1986 from the Insurance Company. If the Insurance Company knew that the heart disease would continue over a time, they ought to have sent the Respondent for a medical test at the time of issuing the insurance and should have clearly mentioned that heart disease is excluded from the policy. None of the above averments have been successfully controverted by the Petitioner, the Insurance Company. After a successful by -pass operation in 1986 it can no longer be said that this disease continues. Therefore, the repudiation is unjustified ... ''''

LEARNED counsel maintained that the repudiation of claim was not in order based on the view taken in the above two judgements. The learned counsel for the petitioner has also drawn attention to the order passed by the Hon ''ble Apex Court in ''''B.V. Nagaraju versus Oriental Insurance Co. Ltd. '''' [as reported in (1996) 4 SCC 647] and the order passed in ''''Skandia Insurance Co. Ltd. versus Kokilaben Chandravadan and others '''' [as reported in (1987) 2 SCC 654], pleading that the exclusion clause of the insurance policy must be interpreted in a way, so as to serve the main purpose for which the policy had been issued.

ON the other hand, learned counsel for the respondent insurance company has drawn attention to a copy of the discharge summary issued by the Apollo Hospital, Delhi, saying that Smt. Shakuntala Devi suffered from a number of diseases and not only the heart disease. The treatment given by the said hospital mentions that she was given anti -hypertension drugs. The order passed by the District Forum also makes it clear that the complainants had not been able to prove that the disease for which the treatment was taken, were not related to hypertension or diabetes and were related to fever, abdominal and chest pain only. It was, therefore, not possible to say that the disease for which the treatment was taken was different from hypertension or diabetes. The learned counsel argued that parties of a mediclaim policy is to cover the risk of unforeseen circumstances only. The exclusion clause 4.1 makes it clear that any complications arising from pre -existing diseases will be considered part of the pre -existing condition. Since there were concurrent findings of the two lower courts, there was no justification for making any change in the said orders at the stage of revision petition. The revision petition, therefore, deserves to be dismissed. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. It is made out from record that the policy -holder Mrs. Shakuntala Devi was a known case of diabetes, hypertension and the said fact had been declared by the policy -holder at the time of obtaining the said policy. It is also clear that under the terms and conditions of the policy, any claim with respect to the treatment of these diseases was not payable to the complainants. The main ground taken by the complainant says that Smt. Shakuntala Devi suffered from the ailments of fever, abdominal and chest pain and the expenditure incurred by them on her treatment was on account of these diseases. However, the material on record brings out that the discharge summary issued by the hospital says that she was a known case of diabetes and hypertension for the last 15 years and treatment was given for control of these diseases also. It has also been brought out by the State Commission that the single vessel disease diagnosed and treated was a complication of diabetes mellitus with hypertension. The complainants have not been able to prove that the treatment taken from the hospitals was not related to hypertension or diabetes. The exclusion clause 4.1 makes it very clear that the complications that have arisen from a pre -existing disease will be considered part of the pre -existing condition.

BASED on the discussion above, it is made out that there is no infirmity, irregularity, illegality or jurisdictional error in the orders passed by the State Commission and the District Forum which may merit any interference at the revisional stage. The revision petition is ordered to be dismissed. The impugned order is, therefore, upheld with no order as to costs.