SATYA PARKASH SOOD vs National Insurance Co.Ltd

THE challenge in this appeal is to the order of the learned District Forum, Kangra at Dharamshala, dated 31.10.1996 whereby the complaint of the complainant/appellant has been dismissed.

THE brief relevant facts necessary to be mentioned for determining the point in controversy between the parties are that the complainant/appellant (hereinafter to be referred to as the complainant) insured himself under Hospitalisation and Domiciliary Hospitalisation Benefit Policy with the respondent/Opposite Parties (hereinafter to be referred to as the Insurance Company) on 21.9.1992 for a period of one year vide Policy No. 421202/48/37/00285/92 with effect from 21.9.1992 to 20.9.1993. According to the complainant, he went to Batra Hospital, New Delhi in connection with his operation of enlarged prostrate between 18th and 20th November, 1992 and that he was operated upon on 19.11.1992 and discharged on 29.11.1992. THE Doctors of Batra Hospital advised him to undergo bypass surgery of heart. In accordance with the advice tendered by the doctors of Batra Hospital, he got himself operated upon for heart bypass surgery from the Escorts Heart Institute. He remained admitted there from 15.12.1992 to 18.1.1993. THE complainant had to incur an expenditure of Rs. 1,56,087.51 p in Escorts Heart Institute for undergoing bypass heart surgery. THE complainant preferred such claim with the Insurance Company, but unfortunately that claim has been repudiated by the Insurance Company on the ground that the complainant has concealed material facts of his ailment of heart when the proposal and declaration form was submitted by the complainant for the insurance before the Insurance Company. The District Forum has decided the matter in favour of the Insurance Company and against the complainant and has held that the Insurance Company was justified in repudiating the claim as the complainant has concealed the material facts at the time of submission of the proposal and declaration form for such policy.

Mr. S.K. Gupta, learned Counsel for the Insurance Company has very forcefully contended and supported the order of the learned District Forum and reiterated the same argument that the complainant while submitting the proposal and declaration form for entering into the contract of insurance, has concealed the material facts from the Insurance Company about his suffering from the ailment of heart and, therefore, the Insurance Company is absolutely justified in repudiating the claim.

MR. Gupta, the learned Counsel for the Insurance Company has relied upon the evidence of affidavit of Dr. Satyendra Singh, Medical Co-ordinator, Escorts Heart Institute and Research Centre (EHIRC), New Delhi (Page 105 of the file refers to). It would be seen from the affidavit that Dr. Satyendra Singh was also cross examined as RW 1 and his statement on oath is at page 109 of the file. From these two statements, one thing is clear and may significantly be noticed that the statement has been made by Dr. Satyendra Singh as per the record of Escorts Heart Institute and it has been clearly stated in the statement/cross-examination by Dr. Satyendra Singh that the averments made in paras 2 to 5 of the affidavit are based on the record and is not based on his personal knowledge nor that record was prepared by him, but no record original or an attested copy thereof, whatsoever, has been placed on the record. No doubt the Doctor has stated in his affidavit that as per the record the complainant himself has given the history of pre-cardial pain in 1987 and that he was told by his physician that he had suffered a minor heart attack and complained of angina after three years. After comprehensive cardiac checkup, he was diagnosed as a case of Class-II angina on exertion. His stress exercise ECG report was abnormal and positive for reversible Myocardial is chaemia and that he was admitted on 31.12.1992 and underwent bypass surgery on 5.1.1993 and was discharged on 15.1.1993. There is no dispute that the complainant has undergone the operation on bypass surgery in Escorts Heart Institute and remained in that Hospital from 31.12.1992 to 15.1.1993 and that at the relevant time the Insurance Policy was in force, but the crucial question that requires consideration for disentitling the complainant to his medical claim is whether or not the complainant knew before 21.9.1992 when he submitted the proposal and declaration form for entering into the contract of insurance that he was suffering from heart ailment and that he concealed such material facts from the Insurance Company.

WE are afraid the affidavit of Dr. Satyendra Singh, his statement/cross-examination relied upon by the Insurance Company does not inspire confidence nor such oral evidence about the contents of documents can be acted upon. No doubt, it has been stated by the Doctor that the statement which he has made is based on official record but at the same time, he has also dearly stated in cross-examination that he has not examined this patient nor he has prepared the record. Furthermore, the affidavit as well as the oral statement of the Doctor is not supported by any document, whatsoever, on the record in the file, which could substantiate that the complainant was suffering from the trouble of heart ailment (angina) at the time of submission of proposal and declaration form. No documents in this context, whatsoever, have been put on the record by the Insurance Company. In the absence of any documentary evidence produced on the record, primary or secondary, regarding the ailment of the complainant in the year 1987 or 1990, it cannot be said that the Insurance Company has proved on record that he was suffering from such ailment prior to 21.9.1992. It goes without saying that contents of documents may be proved either by primary or secondary evidence and contents of documents cannot be proved by oral evidence. Sections 61 and 59 of the Indian Evidence Act, 1872, in this context may be referred to. Since the proof of contents of documents is vital to the present case, documents should have been proved by primary or secondary evidence i.e., by production of original documents or by placing on record the certified copies of the originals, which has not been done. Oral evidence of Dr. Satyendra Singh about the contents of the documents is inadmissible in evidence, and cannot be looked into, nor can it inspire any confidence. Again, we may refer to that no doubt Dr. Satyendra Singh has stated in para 2 of his affidavit that the complainant attended their Institute and gave the history of pre-cardial pain in 1987 and that he was told by his physician that he had suffered a minor heart attack, but this has been categorically denied by the complainant in his statement that before this checkup in Escorts Hospital in the year 1990, he had no heart problem nor detected by the Doctors of Batra Hospital at the time when he was operated upon for enlarged prostrate but after the operation and discharge, doctors had advised him for cardiac checkup and the Heart Department of Batra Hospital advised him bypass surgery and before that he knew no such problem. In his cross-examination also, he has denied the averments made by Dr. Satyendra Singh in his affidavit that he gave out medical history of pre-cardial pain in 1987 and he kept in undisclosed and that he has suppressed these material facts at the time of submission of proposal and declaration form. He has also denied the story put up by the Insurance Company and whatever stated by Dr. Satyendra Singh. There is no dispute between the parties that no affidavit of the Doctor who is alleged to have treated the patient in 1990 in Escorts Heart Institute for the alleged chest pain. The Doctor has neither been examined nor his affidavit has been produced on the record. Unless the expert evidence of the Doctor who has treated the patient is produced, such evidence cannot be relied upon and form the basis of a finding that he was suffering from any heart ailment before 21.9.1992. We have held in a case Mrs. Mohini Mohindroo v. The New India Assurance Company & Another, I (1997) CPJ 585=Appeal No. 42 of 1992 decided on 1.4.1997 that the opinion of the Doctor - an expert - unless he is subjected to the test of examination and cross-examination in a Court, cannot be considered as authentic and such evidence cannot be relied upon and form the basis of a finding. Merely the proof of documents does not mean that the contents thereof are necessarily true. In the present case, what to talk of proof of documents, these have not been produced. Mere assertion or oral testimony in respect of the heart ailment in 1990 or 1987 or prior to 1992, therefore, neither inspires any confidence nor can be acted upon and relied upon. We may also notice at this stage that the District Forum has taken adverse inference for non-production of OPD slip from Escorts Hospital for his treatment in the year 1990, as according to the District Forum, OPD slip must have been issued to him which the complainant has not placed on record. In this context, it is sufficient to save that no adverse inference can be drawn as the OPD slips may not be necessarily kept for any indefinite period by the patient but at any rate, it is for the Insurance Company to substantiate their plea that the complainant has concealed material facts of his heart ailment before entering into the contract of insurance or at the time of submitting proposal and declaration form.

HAVING regard to over-all circumstances, we have no hesitation to hold that the Insurance Company has miserably failed to substantiate that the complainant before entering into the contract of insurance or at the time of submitting proposal and declaration form, knew that he was suffering from heart ailment and he suppressed this fact from the Insurance Company. Therefore, in these circumstances, the repudiation of the claim by the Insurance Company is wholly arbitrary, unreasonable and unjust in the eyes of law and amounts to deficiency in service on their part.

MR. S.K. Gupta, learned Counsel for the Insurance Company further submits that even if it is assumed that the Insurance Company has failed to establish their case, still the repudiation of the claim was made in good faith having regard to the facts and circumstances of the case and after proper investigation. This argument is equally devoid of force as we have already held that the repudiation of the claim is arbitrary and untenable in the eyes of law and the claim of the claimant/complainant should not have been rejected. The next question that requires consideration is as to what claim, the complainant is entitled to under the policy. Mr. Gupta, the learned Counsel for the Insurance Company has submitted very vehemently that the claim is not supported by any documentary evidence. Such claim for this amount cannot be allowed. In this connection we find from the letter of the complainant dated 29.3.1993 (Pages 19/49) that he has claimed Rs. 1,56,087.51 p and requested for expediting the claim. The details of the expenditure have also been given and Enclosures (85 papers) have been sent alongwith such letter. This document has been admitted by the Insurance Company. According to the complainant, the documents relating to the expenditure have been sent to the Insurance Company alongwith this letter and such documents are with the Insurance Company and, therefore, he was unable to produce such documents. It would be seen from the letter that as many as 85 papers (Enclosures) have been sent alongwith the letter; and it can be safely assumed that the above version of the complainant must be correct. It is not the case of the Insurance Company that the complainant has not undergone heart bypass surgery. It is common knowledge that in case of operation of heart bypass surgery in Heart Institute like Escorts, one has to incur lot of expenditure. The expenditure alleged to have been incurred by the complainant can neither be considered excessive nor unreasonable.

Having regard to such circumstances, we are of the opinion that the complainant must have incurred an expenditure of Rs. 1,56,087.51p and is entitled to such amount under the Insurance Policy.

NO other points were urged. In the light of what is discussed above, the appeal is allowed and the order of the District Forum is set aside and consequently the complaint is allowed. The Insurance Company is directed to pay Rs. 1,56,087/- to the complainant alongwith interest @ 18% per annum from the date of filing of the complaint i.e. 31.5.1994 till the amount is actually paid to him.

THE costs of Rs. 500/- is also awarded. The amount shall be payable within four weeks. Complaint allowed.