State Consumer Disputes Redressal Commission
National Insurance Co. Ltd vs Sardar Kulbir Singh on 21 March, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 21st March, 2006 Appeal No A-518/2002 (Arising from the order dated 26-03-2001 passed by District Forum(Central), ISBT, Kashmere Gate, New Delhi in Complaint Case No.3178/2000) National Insurance Co. Ltd. Appellant. Divisional Office No. IV, Through 21, Daryaganj, Mr. L.K. Tyagi, Delhi. Advocate. Versus Sardar Kulbir Singh Respondent S/l Late Shri S. Iqbal Singh, Through C/o Narinder Pal Singh, Mr.K.N. Bahuguna, AD-87, Tagore Garden, Advocate. New Delhi-27. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Against the medical insurance policy of the respondent, the appellant repudiated the claim on the ground that respondent had concealed the existence of pre-existing disease. Feeling aggrieved the respondent filed a complaint before the District Forum.
2. Vide impugned order dated 26th March 2001 the District Forum has allowed the complaint with the direction to the appellant to pay Rs. 1,73,000/- towards actual expenses incurred by the respondent with interest @ 9% and Rs. 1,000/- as litigation expenses.
3. Feeling aggrieved the appellant has preferred this appeal.
4. Allegations of the respondent giving rise to the impugned order were as under:-
5. Respondent was a regular subscriber of the mediclaim policy with the appellant from the year 1994. The last spell of the policy was for the period from 24-09-1997 to 23-09-1998 and the insured amount was Rs. 2,00,000/-. The respondent suffered some cardiac problem and was admitted to Escorts Heart Institute and Research Centre, Okhla on 15-07-1998 and after necessary tests three artery by-pass grafting was done on 15-07-1998 in the said Centre, where he incurred an expense of Rs. 1,73,850/- regarding which he raised a claim with the appellant. Claim was repudiated on the twin grounds; that the policy obtained by the respondent was not continuous because the last policy was obtained after a gap of 17 days as the earlier policy expired on 7-9-97 and the same was allegedly got renewed on 24-09-1997. The other ground was that the respondent was suffering from heart problem prior to the obtaining of the mediclaim, which fact was suppressed from the appellant at the time of obtaining the policy and as such the case of the respondent falls squarely within the ambit of exclusion clause4 of the terms and conditions of the policy.
6. According to the appellant rejection was made after thorough investigation of the case and due application of mind. While obtaining the mediclaim policy the respondent deliberately concealed the facts about his illness and fully knowing about his heart problem increased the insured amount from Rs. 1,00,000/- to Rs. 2,00,000/- clandestinely and it was on the detailed report of their panel doctor Dr. Vinod Gandotra that the claim was repudiated.
7. The history of the record prepared at Escorts Heart Institute and Research Centre showed the respondent was an old man of 58 years and non-hypertensive, non-diabetic, non smoker with pleasing personality and has been having chronic stable angina on exertion for 10 years which has been on increase lately but with no history of myocardial interaction in the past and was advised further investigation. Another document relied upon by the appellant was the report dated 12th October 1998 prepared by Dr. Vinod Gandotra. As per his report during hospitalisation in the Escorts Heart Institute the respondent was diagnosed as a case of coronary artery disease triple vessel disease, chronic stable angina NIDDA hypertension and for the same he was operated upon by-pass surgery on 15-7-98 and managed afterwards with supporting life saving medicines. As per report he also visited OPD on 21-04-1998 as he was advised comprehensive cardiac check up and afterwards he had angiography on 11-6-98 which confirmed the diagnosis of CAD triple vessel disease. So much so the TMT test also showed positive.
8. There is no dispute that the last policy was not a fresh policy but continuation of the old one as the appellant failed to produce the fresh proposal form obtained from the respondent at the time of instant policy. It obviously means that the policy in question was renewal of the earlier policy.
9. As regards the opinion of Dr. Vnod Gandotra it is based upon the record of Escorts Heart Institute and not on examination of the respondent. The allegation of concealment of pre-existing disease does not stick, as the appellant cannot take advantage of its own act of omission and commission in not conducting the medical test to find out the physical condition and health of the respondent at the time issuing the policy. However, there is no record or material that the respondent had ever been hospitalised for the aforesaid complications as spelt out in the history/record of Escorts Heart Institute or at any stage undergone even minor operation.
10. Counsel for the appellant has contended that the circumstances appearing in the affidavit filed by the respondent that as he would need medical reimbursement he increased the amount of insurance policy is of no help to the appellant as it was for the appellant to decide keeping in view the health of the respondent as to how much insurance amount is permissible. Once insurance company had accepted the premium of specific amount it cannot go back from the insurance amount.
11. We have taken a view in large number of cases that pre-existing disease should be in the close proximity of the period of insurance and followed by a long treatment including hospitalisation or undergone an operation etc. Otherwise problems like hypertension, diabetes are normal problems of modern day life and are controllable or day to day basis.
12. Foregoing reasons persuade us to dismiss the appeal so far as the direction to pay actual medical expenses incurred by the respondent is concerned. In our view in such cases interest should not be awarded but in terms of Section 14 of the Consumer Protection Act a lumpsum compensation should be awarded including cost of litigation.
In this regard the reference to the view taken by the Supreme court in Sovingtorg (India) Ltd. Vs. State Bank of India, New Delhi (1999) 6 SCC 406-VI CPJ 4 (SC) needs to be reproduced. According to this view unless and until there are such terms of contract as to the liability to pay interest, the interest is not awarded under the provisions of Consumer Protection Act. Interest can be awarded if there are strong equitable grounds.
13. In our view a lumpsum compensation of Rs. 15,000/- besides the actual claim of Rs. 1,73,850/- which shall include the cost of litigation also would meet the ends of justice.
14. Appeal is partly allowed and disposed of in aforesaid terms.
15. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
16. Announced on the 21st March, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj