United India Insurance Co. Ltd. vs SUDESH KUMAR GARG

THIS is an appeal against the order dated 29.5.2003 passed by the District Forum, Hardwar whereby the complaint of the complainant was allowed and the appellant was directed to pay Rs. 1,00,000/- (Rupees one lakh) to the complainant along with interest @ 12%. Compensation of Rs. 5,000/- (Rupees five thousand) and cost of litigation of Rs. 1,500/- (Rupees one thousand five hundred) was also allowed.

THE brief facts of the case are that the husband of the complainant took a mediclaim policy for Rs. 1,00,000/- (Rupees one lakh) in the year 1994, which was regularly renewed upto 1997. When the husband of the complainant lodged the claim of Rs. 1,00,000/- (Rupees one lakh) with the Insurance Company, which included the expenses of hospital and implantation of one pacemaker which was done in Escorts Heart Institute and Research Centre, New Delhi, the Insurance Company repudiated the claim on the ground that it does not come within the purview of condition 4(1) of the policy because the late husband of the complainant did not disclose the fact that his bypass surgery was done in 1990. THE opposite party alleged that implantation of pacemaker is connected with his heart disease, for which bypass surgery was done and therefore it is not covered under the policy. THE complainant alleged that in disease "Bifascicular Block", there is necessity of implanting pacemaker and it is totally different from bypass surgery. THE only thing, which is to be decided, is that whether in Bifascicular Block is related with bypass surgery or not? The complainant filed affidavit in support of her allegations. The opposite party also filed affidavit of his Branch Manger and certificate issued by Dr. K.K. Aggarwal and other documents. The opposite party alleged that it appointed a Surveyor, who submitted his report after investigating from few doctors and he reported that implantation of pacemaker is related with the heart disease of 1990.

After taking the evidence of the parties, the learned Forum allowed the complaint. Against which order, the present appeal has been filed.

WE have heard the learned Counsels for the parties and gone through the records. The opposite party did not file the report of the Surveyor, Sh. S.K. Malik, the Surveyor in his report dated 12.1.1998 alleged that he discussed the case history of the husband of the complainant with Dr. Anil Saxena. In his report he also alleged that the claimant is hiding the facts of initial date of disease sustained to him, which is not supported by any evidence. In his report, the Surveyor did not write anywhere that bypass surgery and implantation of pacemaker are related with each other. Although this report is of no use of the opposite party, because the Surveyor is an Engineer and he is not an expert physician. In the same way, the report of Dr. K.K. Aggarwal does not give any benefit to the opposite party because he is not a heart specialist, instead he is only a M.D. (Medicines) and, therefore, he is only an ordinary physician. Even otherwise, Dr. K.K. Aggarwal alleged in his report that his report is based on documents, which are produced before him by the opposite party. The detail of those documents has not been given in the report and those documents have also not been filed. Therefore, this report cannot be relied upon. In the same manner, the report of Dr. P.C. Malse is not at all believable because he has also not given the detail of his qualifications. Therefore, only the report of Dr. Anil Saxena is only left on record to be considered. Dr. Anil Saxena is a renowned specialist in heart disease in Escorts Heart Institute and Research Centre, New Delhi. He is an M.D. and he possessed the highest qualification in heart diseases, which is D.N.B. (Cardio). Not only this, Dr. Anil Saxena is a doctor in the same hospital, where the late husband of the complainant was operated upon his artery in 1990 and implanted pacemaker in 1997. Dr. Anil Saxena has specifically mentioned in his report that the husband of the complainant did not have Enzyna after operation in 1990 and the husband of the complainant suffered from a different disease in 1997, due to which he had to implant a temporary pacemaker. He also mentioned that it is not related with the operation of artery.

THE learned Forum directed the Director General, Health and Family Welfare, Uttranchal, Dehradun to give a report of medical board. In this report too the Medical Board has written that the disease of the husband of the complainant in the year 1990 and 1997 are totally different and they are not related with each other. THE appellant did not file any counter evidence against his report, which proves that the disease of the husband of the complainant in 1990 was totally same that of 1997. The learned Counsel for the Insurance Company referred the rulings reported in (1) I (2002) CPJ page 26 (NC), Vijay Kumar Jain v. National Insurance Company, (2) I (1993) CPJ 94 (NC), Draupathi Devi Chaudhary v. United India Insurance Co. Ltd., (3) III (1993) CPJ 408 (NC), National Insurance Co. Ltd. v. Surendra Lal Arora and (4) II (1999) CPJ 341, Punjab State Commission, Chandigarh, National Insurance Co. Ltd. v. Vinay Kumar Sehgal. The facts of all these rulings are quite different from the facts of the present case. Therefore, all these rulings shall not apply in the present case. The opposite party challenged the findings of the Medical Board on the ground that the Medical Board did not consider the papers relating to his disease in 1990 and 1997. The Medical Board has prepared the report after going through the report of the above mentioned doctors. The opposite party alleged that the report was signed by the Joint Director. In this connection, on perusal of the report, it is evident that it was signed by Dr. K.B. Joshi, Cardiologist (Heart Specialist), Doon Hospital, Dehradun and it also bears the signatures of one member of the Board, Sh. H.K. Srivastava. Not only this, this report was sent by the Joint Director to the learned Forum through his signed letter dated 22.11.2002. Therefore, the allegation of opposite party is totally baseless.

IN the circumstances as such, we find that the opposite party was definitely deficient in its service in repudiating the claim and the learned Forum was perfectly justified in allowing the complaint.

HOWEVER, the learned Forum has allowed interest as well as compensation. Both cannot be allowed. Interest is always inclusive of compensation. We are supported by the rulings reported in II (2000) CPJ 1 (SC), Ghaziabad Development Authority v. Union of India, III (2002) CPJ page 124 (NC), Satelec Power Electronics v. N.R.D.C. and IV (2003) CPJ 90=2003 (6) CLD SCDRC, Delhi, page 210, Rajpal Mahana v. National Insurance Co. Ltd. ORDER The appeal is hereby allowed. The compensation of Rs. 5,000/- (Rupees five thousand only) as allowed by the learned Forum is hereby quashed. Rest part of the order passed by the learned Forum is hereby confirmed. Cost of the appeal shall be easy. Appeal partly allowed.