State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd., vs Dr. Mohinder Singh on 19 May, 2008
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: 19.05.2008 Appeal No.08/307 (Arising from the Order dated 07.01.2008 passed by the District Forum(Central) Kashmere Gate, Delhi in Case No.834/2003) The Oriental Insurance Co. Ltd., Appellant Oriental House, A-25/27, through Mr. R.N. Sharma, Asaf Ali Road, New Delhi. Advocate. Through its Divisional Manager, K-37, Connaught Circus, New Delhi. Versus Dr. Mohinder Singh ... Respondent S/o Sh. Amrik Singh, F-200, Vishnu Garden, New Delhi. 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 (Oral)
1. Respondent obtained medi-claim policy from the appellant which was effective from 10.07.2000 to 09.07.2001 for a sum of Rs.1,00,000/-. On 22.10.2000 i.e. after three months, respondent felt some chest pain in his both arms, he was immediately taken to Sir Ganga Ram Hospital where angioplasty was carried out on left artery and stent was placed. He was discharged on 24.10.2000. Admittedly he incurred expenses of Rs.1,34,148/- and after discharge he filed the claim for reimbursement of the insurance amount. The claim was repudiated on the ground of concealment of factum of pre-existing disease for which he had taken treatment hardly 20 days before the taking of policy. Consequently he filed the instant complaint before District Forum.
2. Vide impugned order dated 07.01.2008, the District Forum held the repudiation of the claim as unjustified and without any basis. The District Forum allowed the complaint by giving following directions to the appellant:
(i) To pay a sum of Rs.1,00,000/-
with interest @9% per annum from 15.03.2001 date of repudiation till date.
(ii) To pay a sum of Rs.5,000/- as compensation to the complainant.
(iii) To also pay a sum of Rs.2,000/-
as cost of litigation to the complainant.
3. Through this appeal, the finding of fact returned by the District Forum that it was not a case of concealment of disease nor did the respondent suffer from any disease has been challenged much less the heart disease. Impugned order shows that the respondent referred to report of National Heart Institute, where he undertook TMT Test on 01.08.2000. The report showed negative effect. The report diagnosed uneasiness due to Dyspepsia which is result of indigestion. Doctor of National Heart Institute prescribed Pentacid tablet which is an anti-acidity tablets.
4. The aforesaid findings have been challenged and assailed by the learned counsel for the appellant firstly on the premise of the information given by the respondent in respect to several columns of the proposal form to which the respondent had given emphatic no and also the report of Dr. M.S. Sagar, the doctor of the appellant on the panel. According to the report the respondent was admitted as a normotensive, non-smoker, occasional alcoholic, known diabetic since two years on Oral Hypoglycemic Agent with family history of CAD in father. There was past history of Coronary Artery disease (CAD) chest pain on exertion, relieved by analgesics 2 times in June 2000 and approximately. One month back. He TMT was negative for reversible myocardialischemia. In our view this was hardly a case of concealment of any disease much less heart disease.
5. In one of our decisions we had dealt with the meaning and concept of the word Disease as well as Pre-existing disease particularly in reference to the mediclaim insurance policy in a highly dissective and extensive manner. The crux of those conclusions is that until a person is hospitalised or undergoes operation in the near proximity of obtaining policy or say year or two before it he is not supposed to disclose any day to day problem or normal wear and tear of human life particularly in the modern times where person lives stress full life.
6. A person comes to know about the medical terminology of a particular disease when he lands in the hospital and undergoes treatment or operation. If a person had suffered heart attack or got treatment for a particular disease say 10-15 years before and has been leading healthy and normal life he is not supposed to disclose the factum of having undergone treatment or operation for particular disease 10-20 years before. It is only the disease which is existing at the time of obtaining the policy or in the near proximity of it for which the insured has undergone any treatment or operation which is pre-existing disease and not the disease for which the man had already obtained the treatment and cured himself and was leading healthy life of a healthy person.
7. Our conclusions on the meaning and import of words disease, pre-existing disease for the purpose of mediclaim insurance policy, are as under:
(i) Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi) Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(viii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix) For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
(x) Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
8. Had the deceased been suffering from such disease he would not have continued to live ordinary life by performing all the chores and ordeals and that too after being subjected to basic medical test by the panel doctors of the insurance company. On the aforesaid criteria and particularly taking clue from the discharge summary of the patient is no ground for rejection of the claim. The onus is on the insurance company to prove that the insured concealed the factum that he has been suffering from the pre-existing disease at the time of obtaining the policy.
9. Proceeding on the aforesaid premise we dismiss the appeal being devoid of merit The order shall be complied with within one month from the date of receipt of this order.
10. 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.
Announced on 19th day of May , 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri