State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Kuljinder Kaur on 9 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1531 of 2012
Date of institution : 15.11.2012
Date of decision : 09.06.2014
New India Assurance Company Limited through its Branch Office,
Opposite Income Tax Office, Leela Bhawan, Patiala.
Through authorized officer Shri A.L. Madan, Manager, New India
Assurance Co. Ltd., Regional Office, SCO 36-37, Sector 17-A,
Chandigarh.
.......Appellant- Opposite Party
Versus
Kuljinder Kaur widow of Mr. Amritbir Singh, resident of House
No.127-A, Punjabi Bagh, Patiala.
......Respondent-Complainant
First Appeal against the order dated
17.9.2012 of the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri R.K. Sharma, Advocate. For the respondent : Shri Ramanjeet Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
Amritbir Singh, deceased, husband of Kuljinder Kaur, complainant, had obtained mediclaim policies from the opposite party for Rs.3,00,000/-, each, for the period 31.8.2009 to 30.8.2010 and 31.8.2010 to 30.8.2011 . He fell ill and for that illness he was treated in Fortis Hospital, Mohali and then in PGI, Chandigarh and he died at that place on 10.10.2011. Amount was spent on his medical treatment and after his death the claim was lodged with the opposite party by the complainant, which was repudiated, vide letter dated 30.12.2010, on the ground that the same was not tenable First Appeal No. 1531of 2012. 2 under clause 4.4.6 of the policy; alcohol being the contributory factor for liver disease and kidney disease. The complainant filed complaint against the opposite party under Section 12 of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum, Patiala (in short, "District Forum") alleging therein that on 4.8.2010 the deceased developed breathlessness and was taken to a local hospital at Patiala for immediate medical help and thereafter to Fortis Hospital, Mohali, for further treatment where he remained under treatment from 7.8.2010 to 28.9.2010. Thereafter he was shifted to PGI, Chandigarh and remained admitted at that place from 29.8.2010 to 10.10.2010. He spent Rs.20,27,178/- on his treatment. After the repudiation of her claim she herself and her son Sherbir Singh informed the opposite party that the deceased was not alcoholic and a similar claim was allowed in the year 2009 and he had been purchasing the medi- claim policy from the opposite party consecutively for 10 years immediately before his death. Even then the opposite party avoided the claim and the same is mala fide and amounts to deficiency in service, for which she is entitled to a compensation of Rs.25,000/-, besides Rs.6,00,000/- as the medical expenses incurred, along with interest at the rate of 18% per annum.
2. The opposite party, in its written reply, while disputing the allegations made in the complaint pleaded that the deceased suffered from decompensate alcoholic cirrhosis, paralytic ileus, CKD and those diseases itself indicate that his illness was due to alcohol and he was alcoholic. Therefore, the claim was not payable. The First Appeal No. 1531of 2012. 3 Third Party Administrator had recommended the repudiation of the claim on account of the violation of the terms and conditions of the policy. On account of violation of the insurance contract the same became void and it was not liable to pay any such claim. The complaint filed by the complainant is not maintainable. There was no deficiency in service on its part and, therefore, it is not liable to pay any compensation.
3. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint with costs of Rs.4,000/-, vide order dated 17.9.2012 and directed the opposite party to pay the sum of Rs.6,00,000/-, along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 30.12.2010 till the final payment. Feeling aggrieved the opposite party has preferred the present appeal.
4. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
5. It was submitted by the learned counsel for the opposite party that it was wrongly concluded by the District Forum that there was concealment of pre-existing disease by the insured at the time of taking of the policy. The diseases from which the insured was suffering and for which he had obtained the treatment was on account of the fact that he was a chronic alcoholic. At the time of obtaining the medi-claim policies he concealed the fact that he was a chronic alcoholic. From the evidence produced on the record, it also stands proved that he was a known case of diabetes and First Appeal No. 1531of 2012. 4 hypertension from the last 10 years and chronic renal failure from the last 4 years. It was also found that he was on dialysis since January 2009 and was suffering from CAPD from that year. The insurance policy obtained by the insured contained permanent exclusions and as per Clause 4.4.6, the medical expenses incurred or arising out of the use of intoxicating drugs/alcohol were not payable. The claim made by the complainant was correctly repudiated on that ground. In these circumstances the order passed by the District Forum is liable to be set aside. In support of his submissions he referred to the records of the Fortis Hospital, Mohali and that of the PGI, which contain the history of ailments from which the insured was suffering.
6. On the other hand, it was submitted by the learned counsel for the complainant that the medi-claim policies were being obtained by the insured continuously for 10 years before his death and any exclusion clause in the policy stood omitted after two years. Moreover, the insured was not suffering from any such pre-existing disease. It was for the first time that when he was admitted in Fortis Hospital, Mohali that it was found that he was suffering from diabetes and hypertension. Previously there was no such history. There is no evidence on the record on the basis of which it may be concluded that the illness/ailment from which he was suffering was the result of the taking of alcohol for he being chronic alcoholic. Therefore, there is no ground for upsetting the well reasoned order of the District Forum.
7. The fact that the insured had been taking medi-claim policy consecutively for 10 years immediately before his death stands First Appeal No. 1531of 2012. 5 proved from the affidavit of the complainant Ex.CA and the policies proved on the record as Ex.C-15 to Ex.C-21. The first such medi- claim policy was obtained by him for the period 6.9.2002 to 5.9.2003. He continued to obtain such policies without any break upto 30.8.2010. The terms and conditions of the medi-claim policy have been filed with the appeal as Annexure A-4. Clause 4 thereof deals with the exclusions. As per that clause, the opposite party was not liable to make any payment under the policy in respect of pre- existing diseases. However, that exclusion clause was to be deleted after 4 consecutive claim free policy year provided there was no hospitalization for pre-existing disease during the said period of four years. No evidence has been produced on the record by the opposite party that since the inception of the first policy any claim was made by the insured for the treatment of pre-existing disease during the period of four years. Therefore, the said clause stands omitted.
8. The case of the opposite party is that the claim of the complainant was repudiated by virtue of the permanent exclusions contained in the policy. Clause 4.4.6 so referred to in the letter of repudiation and the written reply of the opposite party, is reproduced below:-
"Any medical expenses incurred for or arising out of: convalescence, general debility, 'Run-down' condition or rest cure, obesity treatment and its complications, congenial external disease/defects or anomalies, treatment relating to all psychiatric First Appeal No. 1531of 2012. 6 and psychosomatic disorders, infertility, sterility, use of intoxicating drugs/alcohol, use of tobacco leading to cancer."
Whether it can be said that the medical expenses being claimed by the complainant were incurred for or were arising out of use of intoxicating drugs/alcohol? Certainly these were not incurred for intoxicating drugs/alcohol? In order to determine whether those were incurred for the treatment of the ailment arising out of the use of alcohol, we are to refer to the medical evidence produced on the record as in support of that fact the opposite party is only relying upon that medical record and even the claim was repudiated by making reference to that medical report. The insured was first treated in Fortis Hospital, Mohali. The case summary of that hospital was proved on record as Ex.R-8. The complainant has also relied upon that record and proved the same as Ex.C-4. As per that record, the diagnosis was as under:-
i) Post right lung decortications (for Uremic Pleuritis);
ii) Fungal Sepsis (yeast in blood-Prototheca wickerhamii, achlorophyllous algae);
iii) Diabetes mellitus;
iv) Hypertension;
v) Chronic renal failure on maintenance
Hemodialysis;
vi) Paralytic ileus with intra abdominal bleed;
vii) Difficult weaning from ventilator;
viii) Adminal insufficiencies.
First Appeal No. 1531of 2012. 7
In the history it is mentioned that the insured was a known case of diabetes and hypertension since 10 years, chronic renal failure since 4 years (initially on Hemodialysis from January 2009 and now on CAPD since August 2009 till admission) and Hepatitis B positive was detected one year back. It was not mentioned in that record that either he was addicted to alcohol or was chronic alcoholic. He was admitted in that hospital on 7.8.2010 and was discharged on 29.9.2010.
9. The opposite party has also relied upon the medical certificate Ex.R-10, which was issued by Dr. Arun Thapar. As per that Certificate, the insured was admitted in Medi-City Hospital, Ludhiana on 8.1.2009 and remained under the care of that doctor. He was diagnosed to be suffering from Essential Hypertension with Normal Sinus Rhythm with Type-2 Diabetes Mellitus with Acute Renal Failure leading to Hyperkalemia. Even in that certificate it is not mentioned that either he was addicted to alcohol or was chronic alcoholic. The medical record of the PGI, where the insured was admitted after his discharge from Fortis Hospital, Mohali was proved on the record as Ex.C-5. In fact that is the medical certificate of the cause of death. The immediate cause of death was recorded as
i) CARDIAC ARRYTHMIA;
ii) REFRACTORY SEPTIC SHOCK;
iii) MODS-UPPER GI BLEED;
The antecedent cause was recorded as under:-
i) DECOMPENSATED ALCOHOLIC CIRRHOSIS;
ii) PARALYTIC ILEUS;First Appeal No. 1531of 2012. 8
iii) CHRONIC KIDNEY DISEASE (ON MHB);
iv) CRITICAL ILLNESS NEUROPATHY;
v) B/L PLEURAL EFFUSION-POST DECORTICATION;
vi) PROLONGED INTUBATION-DIFFICULT WEANING;
vii)DIABETES MELLITUS/HYPERTENSION.
10. The TPA in his report Ex.R-6 made the following observation and opinion:-
"PATIENT SUFFERED FROM DECOMPENSATED ALCOHOLIC CIRRHOSIS,PARALYTIC ILEUS, CKD. AS THE DISEASE ITSELF INDICATES THAT THE ILLNESS OF THE PATIENT IS DUE TO ALCOHOL AND PATIENT IS ALCOHOLIC. AS PER THE PGI RECORDS THE IMMEDIATE AND ANTECEDENT CAUSE OF DEATH IS DECOMPENSATED ALCOHOLIC CIRRHOSIS, CKD AND PARALYTIC ILEUS. ALCOHOL IS THE CONTRIBUTORY FACTOR OF LIVER DISEASE AND KIDNEY DISEASE (COMPLICATIONS LIKE FUNGAL, SEPSIS ARE DUE TO CAPD DONE FOR CKD). THEREFORE CLAIM IS NON PAYABLE AS PER CLAUSE 4.4.6.
DECOMPENSATED ALCOHOLIC CIRRHOSIS, DM, HTN,CKD ON MHD, SEPSIS."
As per that report, the alcohol was the contributory factor of the liver disease and the kidney disease but it is not mentioned therein that the same was only on account of alcohol. Therefore, the present First Appeal No. 1531of 2012. 9 case does not fall under the permanent exclusion clauses and the opposite party was not competent to repudiate the claim of the complainant on that ground. Correct finding to that effect was recorded by the District Forum and the same is hereby upheld.
9. From our above discussion, we conclude that there is no merit in this appeal and the same is hereby dismissed. The order passed by the District Forum is upheld.
10. The appellant/opposite party deposited the sum of Rs.25,000/- at the time of filing of the appeal on 15.11.2012. It deposited another sum of Rs.2,75,000/- on 11.3.2013 in compliance of the order dated 22.2.2013. Both these sums along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and the appellant/opposite party.
11. The arguments in this case were heard on 27.5.2014 and the order was reserved. Now, the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
(MRS. SURINDER PAL KAUR)
June 09, 2014 MEMBER
Bansal
First Appeal No. 1531of 2012. 10