National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Baby Simran Kaur on 23 April, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 519 OF 2008 (From the order dated 09.08.2007 in First Appeal No. A-476/2003 of Delhi State Consumer Disputes Redressal Commission) Oriental Insurance Co. Ltd. through its Manager, Regd. Office Oriental House, A 25/27, Asaf Ali Road, New Delhi ... Petitioner Versus Baby Simran Kaur d/o Sh. Nirmal Jeet Singh 77 A, Opposite Mental Hospital Dilshad Garden Delhi 110095. Respondent
BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner Mr. Abhishek Kumar, Advocate For the Respondent Mr. Saleem Akhtar, Advocate PRONOUNCED ON : 23rd APRIL 2014 O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 09.08.2007, passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. A-476/2003, Baby Simran Kaur versus Oriental Insurance Co. Ltd., vide which, while allowing the appeal, the order dated 24.03.2003, passed by the District Consumer Disputes Redressal Forum, dismissing the consumer complaint in question, was set aside.
2. Brief facts of the case are that the complainant/respondent Baby Simran Kaur daughter of Nirmal Jeet Singh, was a minor and she filed the complaint in question through her father for reimbursement of the expenses incurred on her treatment availed against medi-claim policy, obtained in her favour and other members of the family for the period from 16.06.99 to 15.07.2000. Baby Simran Kaur was admitted in the hospital on 10.09.99 for operation of Lumber Spine. A total sum of `1,46,520/- was spent on the treatment, alongwith other expenses and a claim was lodged for reimbursement with the OP Insurance Company. However, the claim was repudiated by the OP on the ground that the claimant had a pre-existing congenital disease, which was not disclosed, while taking the policy in question. The claim of the complainant is based on the opinion of Dr. Rajendra Prasad, Surgeon, Apollo Hospital who stated that the disease for which the appellant was operated upon, was not congenital. The Insurance Company renewed the mediclaim policy for the next year, without settling her claim. The complainant / respondent filed the consumer complaint in question before the District Forum, requesting for a sum of `1,46,350/- to be paid for treatment/medicines/operation, `20,000/- for sundry expenses and `50,000/- as compensation for harassment, alongwith interest. The OP took the stand before the District Forum that the complainant was guilty of withholding material information, as she had been already suffering from a congenital disease. The claim received from the complainant was referred to the panel doctor, Dr. Prem Nath, who stated that the patient was first seen on 28.08.90 in Apollo Hospital for enuresis urgency and was having dribbling inconvenience since birth with fever and swelling of lower back. The claim was repudiated on the basis of affidavit filed by Dr. Pran Nath. The District Forum dismissed the complaint in question, saying that the claim had been rightly repudiated by the OP as the complainant was suffering from that disease since birth. An appeal was filed against the order of the District Forum before the State Commission, which was allowed vide impugned order dated 09.08.2007 and it was directed that payment of `1,46,520/- should be made to the complainant alongwith `5,000/- as compensation for mental harassment and cost of litigation. It was observed by the State Commission that as per the opinion of experts of Apollo hospital, the complainant was not suffering from a congenital disease, but even if it was so, there was no question of concealment made by the policy-holder. It is against this order that the present petition has been made.
3. At the time of arguments before us, learned counsel for the petitioner stated that they had filed an application for taking additional documents on record and the same should be allowed. These documents included a copy of bill for registration fee of `50/- issued by the Indraprastha Apollo Hospital in the name of Baby Simran Kaur, a copy of cover-note of the file dated 07.07.99, issued by the Department of Neurology, Apollo Hospital, a copy of repudiation letter dated 3.3.2000, sent by the OP to father of Simran Kaur and a copy of the claim form, filed before the Insurance Company. It was also stated that the discharge summary and prescription issued by the Apollo Hospital were already on record. Learned counsel for respondent stated that these documents were not authenticated and no parentage of Simran Kaur had been stated in the additional documents filed. However, he admitted that the prescription issued by the Apollo Hospital vide ID No. 99039747 dated 20.08.99 related to Simran Kaur only. After considering the arguments of the learned counsels, the application for additional documents was ordered to be taken on record.
4. In his main arguments, the learned counsel for the petitioner, insurance company has drawn our attention to the discharge summary issued by the Apollo Hospital which is signed by Dr. Rajendra Prasad, Sr. Consultant Neurosurgery. It has been stated in the said document as follows:-
History:
Patient complaint of pain in (R) lower limb and incontinence of urine. After various investigations it was found that incontinence of urine is due to neurogenic bladder. MRI scan was done which shows lipomyelomeningocele with tethering of cord.
5. It is further stated in the discharge summary as follows:-
Course in Hospital: Patient was seen by Dr. Rajesh Ahlawat (Urologist) who has advised antibiotics according to C/S report. Dr. P.K. Gupta (Paediatrician) has seen her and given clearance for surgery. Operation was done untethering of cord by Dr. R. Prasad & Dr. C.M. Malhotra. After operation patient was stable except repear Hb was 9.9 so one unit of packed cells was transfused. Patient was kept flat for 3 days with indwelling catheter and antibiotics.
6. The learned counsel then referred to the report made by their own panel doctor, Dr. Pran Nath in which, it has been stated that the patient was having symptoms of illness since birth and hence, the claim in question was not payable. In reply to the query that the policy in question was taken in July 1999, whereas the hospital record pertained to August / September 1999, the learned counsel replied that since it was a case of congenital disease, the same should have been disclosed before taking the policy. The District Forum had rightly dismissed the complaint based on the documents produced before them. However, the State Commission had erroneously observed that it was not a case of congenital disease.
7. Learned counsel for the respondent stated that the main issue to be considered in the present case is whether the insured had prior knowledge of the disease before taking policy. He argued that the discharge summary issued by the Apollo Hospital, (as reproduced above) indicates that the problem was detected only after the MRI scan was done. Learned counsel has drawn our attention to Judgement given by this Commission in Trilok Chand Khanna versus United India Insurance Co. as reported in [I (2012) CPJ 84 (NC)] saying that the onus to prove that the petitioner/complainant was suffering from a pre-existing disease, was on the respondent Insurance Company, which had not produced any credible documentary evidence / expert medical opinion in support of the case. In this very order, another order passed by the National Commission in National Insurance Co. Limited versus Raj Narayan [I (2008) CPJ 501 (NC)] has been quoted, in which it has been stated that a patient may be suffering from certain disease, but he may be totally unaware of the symptoms of the disease and hence, he cannot be allowed to suffer by non-payment of claim.
Learned counsel stated that the order passed by the State Commission was in accordance with law as the insurer was not aware of the disease before taking the policy.
8. In reply, the learned counsel for the petitioner has drawn our attention to exclusion clause 4.3 of the Insurance Policy, in which it has been stated as follows:-
During the first year of the operation of the policy the expenses on treatment of diseases such as Cataract Benign Prostatic Hperthrophy, Hysterectomy for Menorrahagia or Fibromyoma, hernia, hydrocele, Congenital Internal Disease. Fistula in anus, Piles, Sinusits and related disorders are not payable.
If these diseases are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal too.
9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
10. The exclusion clause 4.3 of the Insurance Policy as reproduced above, based on which the District Forum dismissed the consumer complaint, mentions about, Congenital Internal disease. As per the report made by Dr. Pran Nath, the panel Doctor of the Insurance Company, It is not only a case of internal congenital but external also as well as pre-existing in nature; considering this the claim is not admissible. The discharge summary made by the Apollo Hospital says that the patient had incontinence of urine due to neurogenic bladder. The MRI showed lipomyelomeningocele with tethering of cord. In the treatment done in this hospital, operation was done for untethering of cord. From the documents concerning the treatment of the complainant in the Apollo hospital, it is made out that the complainant had a congenital problem. It is, however, to be determined whether this problem could be described as congenital internal disease or it is an external disease.
The State Commission have observed in their order that there was no material on record to show that the complainant had ever been hospitalised for the disease in question or was ever operated upon for the disease in the near proximity of obtaining the insurance policy or even a year or two before obtaining the policy. The State Commission have also observed that until and unless, a person is hospitalised or undergoes operation for a particular disease, he does not know the medical terminology of the disease, he had been treated for. The State Commission, therefore, held that it was not a case of suppression of a pre-existing disease.
11. The reference to medical literature on the subject as contained in the Research Paper, Surgical Treatment for lipomyelomeningocele in children, Sheng-Li Huang, Wei Shi, Li-Gen Zhang, World J Pediatr, Vol 6 No. 4 November 15, 2010 would show that, Lipomyelomeningocele (LMM) is a closed neural tube defect or a subcutaneous mass, which occurs approximately once in every 4000 births.
The mass occurs when a fatty mass protrudes posteriorly beyond the bony cavity of the intervertebral space with meningeal covering. A subcutaneous lipoma is typically present in the lumbosarcral region, usually at the midline, but occasionally placed eccentrically. The lesion is not exposed to air and there is no drainage of cerebral spinal fluid.
Children with LMM may develop progressive neurological deterioration characterized by varying degrees of lower extremity paralysis, decreased sensation and neurogenic bowel and bladder.
12. The research paper quoted above shows that children suffering from LMM suffer from protrusion of a fatty mass in posterior region, but the issue is whether it can be stated that this type of condition is an internal disease. The report given by Dr. Pran Nath, the panel Doctor of the Company says that there was external swelling in sacral region since birth. However, he concludes that it is a case of internal congenital and external also, as well as pre-existing in nature. It appears that the report of the panel Doctor is confusing on the issue of internal versus external. It may be stated here that if a person is suffering from something like a defect in the heart-valve since birth, abberant pancreas, ectopic pancreas or any other ailment in the internal organs of the body, it could be termed as an internal congenital disease. In the present case, reference to the medical literature quoted above indicates that the condition may be more befitting to be called a congenital external disease. The exclusion clause in the insurance policy is not attracted, therefore, in the present case.
13. We, therefore, observe that the State Commission has rightly come to the conclusion that there was no element of suppression of material facts or misrepresentation of any kind on the part of the policy holder.
We, therefore, find no irregularity, illegality or jurisdictional error in the order passed by the State Commission and the same is upheld. The revision petition is ordered to be dismissed. There shall be no order as to costs.
Sd/-
(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/