Ravinder Singh Bindra vs National Insurance Company Limited & Ors.

This revision petition has been filed by the petitioner / complainant-Mr. Ravinder Singh Bindra against the order dated 13.9.2012 of the learned State Consumer Disputes Redressal Commission, Haryana, Panchkula (in short, ''the State Commission''), passed in Appeal No. 460 of 2012. 2. Brief facts of the case are that the petitioner/complainant (insured) was the customer of Respondent No. 3 (State Bank of Bikaner and Jaipur, Faridabad). The Respondent No. 1 (National Insurance Company Ltd.) in tie-up with Respondent No. 3 floated Health-cum-Accident Policy namely ''SBBJ-National Medikavach Bima'' for the account holders of Respondent No. 3. Respondent No. 1 insured the Petitioner under the aforesaid policy and issued a Policy Schedule bearing Policy No. 361102/48/06/8500004595 for sum assured of Rs. 2,50,000 covering the period from 2.1.2007 to midnight of 1.1.2008. 3. During the currency of the aforementioned ''Medi Kavach Bima Policy'', the Complainant was admitted in Maharaja Agrasen Heart Institute and Research Centre, West Punjabi Bagh, New Delhi with complaint of loose motion and breathlessness. The complainant was admitted from 1.2.2007 to 12.2.2007 and incurred the expenses to the tune of Rs. 55,500. The case history of the complainant mentioned in the discharge summary mentions that the complainant was admitted with the ailment of difficulty in breathing with loose motion and upon investigation was found to be a case of Septicemia. Later, the complainant was aga in admitted in the Escorts Heart Institute and Research Centre, New Delhi (admitted from 23.2.2007 to 13.3.2007). 4. After discharge from the Escorts Heart Institute, the complainant submitted the claim form along with Discharge Summary, Final Bill and other medical Bills (Maharaja Agrasen Heart Institute and Research Centre and Escorts Heart Institute and Research Centre) to Opposite Party No. 3/Respondent No. 3 and claimed reimbursement of Rs. 2,50,000 i.e. total sum assured under the Policy, against the total expenses to the tune of Rs. 5,58,466. The latter forwarded the claim papers to Respondent No. 2/Opposite Party No. 2 for processing of the claim. While processing tire daim, the Opposite Party No. 2/Respondent No. 2 demanded more information, documents and raised query regarding the treatments, payments and previous history of the disease. After sending replies to the Respondent No. 2, the Petitioner requested tire same to process the claim at the earliest. Later on, the complainant received letter from tire Branch Manager of Respondent No. 1 informing that his claim has been repudiated in accordance with Policy Clause Nos. 4.1 and 4.2 as the patient was diagnosed to be suffering from Hypertension for 24 years and DM for six months, with severe MVR+AVR with Septicemia). 5. Aggrieved by the repudiation letter, the Complainant approached the District Consumer Disputes Redressal Forum, Faridabad alleging, deficiency of service against the Respondents/ Opposite Parties. The complaint was resisted by the opposite parties on the ground that the repudiation of the claim was based on the Exclusion Clause 4.1 and 4.2 of the terms and conditions which related to the pre-existing disease and bar of claim raised within 30 days of the issuance of policy. The District Forum vide its order dated 13.1.2012 passed the following order: "Respondent No. 1 Insurance Company is directed to pay an amount of Rs. 2,50,000 to the complainant with interest @ 9% p.a. from the date of complaint till the date of payment and also to pay Rs. 2,200 as litigation expenses." 6. Aggrieved with the above order of the District Forum, opposite party No. 1/ respondent No. 1 preferred appeal before the State Commission, which was partly allowed on 13.9.2012 and the following order was passed: "This appeal is partly accepted and the impugned order is modified with the direction to the appellant-opposite party to pay the expenses incurred by the complainant for the first admission for his treatment w.e.f. 1.2.2007 to 12.2.2007 from Maharaja Aggarsen Heart Institute and Research Centre, Rohtak Road, West Punjabi Bagh, New Delhi. The impugned order qua awarding of the expenses for second admission w.e.f. 23.2.2007 to 13.3.2007 is set aside." 7. Aggrieved with the order of the State Commission the present revision petition has been filed by the petitioner/complainant. 8. Heard the learned Counsel for the parties except for respondent No. 3 who was proceeded ex parte and perused record 9. Learned Counsel for the petitioner argued that the complainant was admitted to the Maharaja Aggarsen Heart Institute and Research Centre, West Punjabi Bagh, New Delhi from 1.2.2007 to 12.2.2007 with complaint of loose motion, breathlessness and septicemia. He was treated there and was advised MVR (Mitral Valve Regurgitation) +AVR (Aortic Valve Replacements) which relates to some tests of heart disease. Petitioner/complainant was then admitted in Escorts Heart Institute and Research Centre from 23.2.2007 to 13.3.2007 where MVR and AVR were performed and the petitioner spent more than Rs. 5 lakh in the total treatment. The policy was valid from 2.1.2007 to the mid night of 1.1.2008. Thus, clearly, the claim was beyond 30 days of inception of the policy. The District Forum had allowed the full claim of the amount assured under the policy of Rs. 2.5 lakh, but the State Commission has allowed only the amount spent for treatment in Maharaja Aggarsen Hospital whereas the expenses incurred in treatment of Escorts Heart Institute has been disallowed on the ground of pre-existing disease. The opposite parties have claimed pre-existing disease on the basis of discharge summary of the hospital that the complainant was suffering from hyper-tension for about 24 years and from DM for six months. As the treatment taken in the Escorts Heart Institute and Research Centre relates to heart valve replacement, it relates to heart disease, which resulted due to long standing hypertension. The State Commission has agreed with the assertion of the opposite parties that the heart disease has resulted due to long spell of hypertension and thus the clause of pre-existing disease has been found to be attracted in the present case. The learned Counsel argued that the expenses have been incurred in treating the heart disease which was not pre-existing. The Insurance Company has filed no proof of treatment of the complainant showing that he was suffering with heart disease on any date prior to inception of the policy. The basic condition for repudiating the claim under the condition of pre-existing disease is that the Insurance Company must produce some proof for existence of the disease at any time prior to the date of proposal form. Clearly, complainant was suffering from hypertension but every person suffering from hypertension does not suffer from heart disease. To support his claim, the learned Counsel for the petitioner relied on the judgement of this Commission in the case of R.P.No.3619 of 2013, Satish Chatider Madan v. Bajaj Allianz General Insurance Co. Ltd., I (2016) CPJ 613 (NC), decided on 11.1.2016, wherein it has been observed: "Learned Counsel for the respondent has contended that it is established on record that the petitioner was having a previous history of hypertension and since hypertension can lead to heart problem, the respondent was justified in repudiating the claim on the ground that the heart problem suffered by the petitioner was caused by preexisting hypertension. There is no merit in this contention. Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. Therefore, the argument advanced by respondent is far-fetched and is liable to be rejected." 10. Yet in another case RP No. 2648 of 2008, National Insurance Co. Ltd. v. Shri V.L. fain and RP No. 2660 of 2008, Shri V.L. Jain v. National Insurance Co. Ltd., decided on 26.8.2014, the learned Counsel mentioned that a similar decision has been taken. It has been observed as under- "The next question which comes up for our consideration is as to whether the disease for which treatment was taken by the wife of the complainant at G.B. Pant Hospital existed at the time the policy was taken for the first time in August, 1998 or not. The learned Counsel for the Insurance Company has drawn our attention to the clinical note of the G.B. Pant Hospital whereby it has been recorded that the patient had hypertension for eight years and angina category II for 5-6 months, which resolved on taking Sorbitrate. A perusal of the documents relating to the treatment of the wife of the complainant clearly shows that the hospitalization of the wife of the complainant was for treatment of coronary artery disease and not for hypertension. Therefore, even if the wife of the complainant was suffering from hypertension, at the time of policy was first taken, that would not absolve the Insurance Company from its liability to reimburse him for the cost of treatment for angina, unless it is shown that she was suffering from angina at the time the policy was taken for the first time in August, 1998. There is absolutely no evidence of the wife of the complainant suffering from angina at the time the policy was taken for the first time in August, 1998." 11. Learned Counsel for the petitioner also argued that the State Commission has agreed with the assertion of the opposite party that the fact of complainant having hypertension was concealed by the complainant whereas no proposal form has been filed on record by the opposite party No. 1. Without any proposal form, how can it be presumed by learned State Commission that any concealment was done? 12. Based on the above, learned Counsel claimed that no concealment is proved from the record as proposal form is not available on the record. Also suppression of any pre-existing disease does not arise because the expenses in question relate to heart disease which was definitely and admittedly not pre-existing as no proof has been placed on record by the Insurance Company. Even if hypertension is considered to be a pre-existing disease, its concealment is not proved on record due to non-availability of the proposal form. Therefore, the State Commission has grossly erred in disallowing the claim relating to treatment of heart disease in Escorts Heart Institute and Research Centre. The learned Counsel relied on the following cases: (i) National Commission in case R.P. No. 4273 of 2012, M/s. National Insurance Co. Ltd. v. Rajinder Kumar Goel (Since deceased) Through LRs, decided on 3.9.2013 has held as under: "The main question is that even if, there were ailments, Counsel for the petitioner cannot produce the proposal form, filled up by the deceased .............. There is no evidence on the record that the complainant Sh. Rajinder Kumar Goel had made the false statement or suppressed any fact before the authorities of Insurance Company." (ii) In R.P. No. 2251 of 2012, Rajinder Kumar Goel (Since deceased) Through LRs v. M/s. National Insurance Co. Ltd., decided on 3.9.2013, it has been observed and decided that: "The proposal form is not traceable its benefit will also go to the LRs of the deceased. There is certainly suppression of fact/document not by the complainant but by the respondent Insurance Company." 13. Learned Counsel for the respondent Nos. 1 and 2 stated that the complainant was suffering from hypertension for the last 24 years and DM for last six months as mentioned in the discharge summary of both the hospitals. There is no doubt that long standing hyper-tension could lead to heart diseases. Any heart disease cannot suddenly take this dimension that valve repair/replacement is required urgently. This clearly goes to show that the complainant was having even heart disease prior to the commencement of policy. 14. Under the terms and conditions of the policy, Clause 4.1 and 4.2 relate to pre-existing disease and claims submitted within 30 days. Such claims are not allowed under the policy. The present claim is definitely barred on account of the pre-existing disease and the same was concealed by the complainant. Even if the disease in question is not a pre-existing disease, but another disease was pre-existing that was not disclosed, still insurance contract becomes voidable and claim can be repudiated. Thus, there is no error in the order of the State Commission and the revision petition needs to be dismissed. 15. We have carefully considered the arguments advanced by both the parties and have examined the record. It is clear that the claim is not within the 30 days of the issuance of the policy and therefore, this exclusion relating to claim being inadmissible for treatment or admission within 30 days from the issuance of the policy is not applicable in the present case. So far as the general exclusion clause relating to pre-existing disease is concerned, the Insurance Company has repudiated the claim on the basis that deceased was having hypertension for the last 24 years and DM for the last six months and long standing hypertension contributed to his heart ailments and therefore, any treatment of heart ailments was not covered because heart ailments were also pre-existing though, they might not have been diagnosed or treated. Here the main question is as to which disease was pre-existing. Clearly, the disease of hypertension was pre-existing and as laid down by this Commission in Satish Chancier Madan v. Bajaj Allianz General Insurance Co. Ltd. (supra) as well as in National Insurance Co. Ltd. v. Shri V.L. Jain (supra), it is not necessary that every person having hypertension shall suffer with heart disease. Definitely, the Insurance Company has not produced any evidence or filed any document to show that the deceased was suffering from any heart ailments or was treated for the same before the date of proposal. Even the proposal form has not been filed by the Insurance Company and therefore, it cannot be ascertained what information was provided by the insured. This Commission has clearly laid down in number of cases including M/s. National Insurance Co. Ltd. v. Rajinder Kumar Goel (Since deceased) (supra) that if the proposal form is not on record, concealment cannot be taken for granted. Even otherwise also, the concealment of hypertension has not been taken as suppression of any material information sufficient to repudiate the claim as held in the following judgments: "(i) Hari Om Agarwal v. Oriental Insurance Co. Ltd., W.P. (C) No. 656 of 2007, decided on 17.9.2007, Hon''ble High Court of Delhi, wherein the following view has been expressed: Insurance - Mediclaim-Rc imbursement - Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance-Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hypertension-Petitioner was advised to undergo ECG, which he did-Insurer accepted proposal and issued cover note-It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors-That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension-It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless-Policy would be reduced to a contract with no content, in event of happening of contingency-Therefore Clause 4.1 of policy cannot be allowed to override insurer''s primary liability - Main purpose rule would have to be pressed into service-Insurer renewed policy after petitioner underwent CABG procedure-Therefore refusal by insurer to process and reimburse petitioner''s claim is arbitrary and unreasonable - As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency-Therefore direction issued to respondent to process petitioner''s claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed." (ii) Praveen Damani v. Oriental Insurance Co. Ltd. Through Divisional Manager, IV (2006) CPJ 189 (NC), RP No. 1696 of 2005, decided on 3.10.2006 (NC). It has been held that: 17. Hence, in our view, the Insurance Company has erroneously repudiated the claim by relying upon the so-called certificates of Dr. Aggarwal and Dr. A. Farishta to whom they have paid fees. None of the aforesaid certificates by Doctors would establish that the insured was aware of the heart ailment. If, in reality, had he been aware, he would not have waited for its treatment till he obtains the insurance cover, and take the risk of death. 18. The District Forum also relied on Clause 4.1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability. 19. If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relied on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is bom to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone realizes much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest paint, etc. prior to 11.8.2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease." 16. Based on the above examination, we find that the clause relating to non-admissibility of the claim filed for treatments within 30 days of the inception of the policy is not applicable in the present case. Even the other general exclusion clause relating to pre-existing disease is also not applicable in the instant case. Hence, we are of the opinion that there should have been no repudiation by the Insurance Company and the State Commission has erred in not allowing the claim for the treatment in Escorts Heart Institute and Research Centre. As the total expenses have been stated to be more than the insured amount of Rs. 2,50,000, the claim needs to be allowed for Rs. 2,50,000 (Rupees two lakh fifty thousand only). However, we feel that the interest of 9% p.a. allowed by the District Forum is on a higher side and keeping in view the current bank rates, interest of 6% p.a. would be reasonable. 17. On the basis of the above discussion, the revision petition is allowed and the order dated 13.9.2012 of the State Commission is set aside. The order dated 13.1.2012 of the District Forum is upheld except that the interest of only 6% p.a. shall be payable by the Insurance Company instead of 9% p.a. as ordered by the District Forum on the amount to be paid to the complainant. No order as to costs. Revision Petition allowed.