State Consumer Disputes Redressal Commission
National Ins Co Ltd vs Devendrabhai V Shah on 15 March, 2021
Details DD MM YY
Date of Judgment 15 3 2021
Date of filing 29 1 2021
Duration 18 01 0000
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
APPEAL NO. 126 of 2021
[Virtual Hearing]
Court No. 1
1 National Insurance Co. Ltd.,
205, Geetanjali Complex, Near Galaxy Cinema,
Kalanala, Bhavnagar.
2 National Insurance Co. Ltd.,
R.O. Hasubhai Chambers, Near Town Hall,
Ellisbridge, Ahemdabad. ...Appellants
Vs
1. Devendra Vadilal Shah
7-B, Ami Apartment, Rupani, Near Gopal
Nursing Home, Bhavnagar.
2. MD India Healthcare ( TPA) Services Pvt. Ltd.
Sundarvan Co. Op. Housing Society Ltd.
Behind Auda Office, Near Vidhyapith,
Usmanpura, Ahmedabad. ...Respondents
Coram : Justice V. P. Patel, President
Mrs. U. P. Jani, Member
APPERANCE : Mr. S. S. Shah, advocate for the appellants.
Order: (By Mr. Justice V. P. Patel, President)
1. Appellants have filed this appeal under section 41 of the Consumer Protection Act 2019, being aggrieved and dissatisfied with the judgment and order dated 31-12-2021 Passed by the Consumer Disputes Redressal Commission, Bhavnagar (for short Learned District Commission) in Consumer case no. 33/2018.
Richa A-21-126 Page 1 of 82. Heard Mrs. Khusbhu Amlani for the ld. Advocate S. S. Shah, for the appellants. Perused the record of the case and judgment and order passed by the ld. District commission.
2.1 The appellants here in is the original opponent no.1 and 2 and respondent is complainant. (Herein after the appellants and respondents will be referred as per their original status) Facts of the case of the complainant :
3. The complainant and his wife covered of sum insured of Rs. 5,00,000/- by insurance policy no.301000/48/17/8500002226 for the period of 28/7/2017 to 27/7/2018 the complainant was hospitalized on 4/10/17 and discharged on 17/10/17 for the treatment of Carcinoma Left Buccal Mucosa in Ayushya Cancer Hospital at Bhavnagar. On 31/8/17 complainant has lodged the claim before TPA to reimburse expenses of Rs. 1,83,431/-. The opponent insurance company has repudiated the claim stating that nature of deceased illness contracted or injury sustained Cancer. Therefore, complainant has filed the claim to reimburse the amount of Rs. 1,83,431/- along with the 7% interest and cost.
Defense of the opponents :
4. The District Forum has issued the notice to the opponents and opponents are appeared through ld. Advocate and filed the written statement. The most of the contentions of the complaint was denied. That the patient has having history of Tabacco Chewing and as per the terms and conditions of the policy use of Tabacco leading to cancer is excluded from the scope of the policy hence the claim is not payable under clause no. 4.11 of the insurance policy. That the treating doctor has given certificate and wherein it is stated that patient had a history of tobacco chewing. That the insurance company has repudiated the Richa A-21-126 Page 2 of 8 claim with valid reasons it is further stated there is no deficiency in service on the part of opponent.
5. Order under challenge :
The District Commission has allowed the said complaint on 7.7.2020. and passed order mainly ;
"(A) The complainant filed consumer complaint is partly allowed.
(B) The opponents are jointly liable to pay Rs. 1,83,431/- (Rupees one lac eighty three thousand four hundred thirty one only) to the complainant along with 7% interest from the date of filing of the application to till its realization .
(C) The opponents shall issue A/c. payee cheque in the name of the complainant or deposition A/c. payee cheque with registry.
(D) And further passed the order to the opponents to pay Rs. 1500/-
towards mental harassment suffered to the complainant.
Argument of the Appellants :
6 Learned advocate for the appellants has argued that the order passed by the Learned District Commission is contrary to law and against the provision of natural justice. That the Learned District Commission had acted against the evidence on record and not appreciated the documentary evidence in proper perspective. That the Learned District Commission has not consider defence raise in the written statement filed by the insurance company. That the Learned District Commission has not consider terms and conditions of the policy.
6.1 That the complainant was asked to provide exact duration of illness Carcinoma Left Buccal Mucosa from treating doctor. That the complainant provided certificate dated 13/12/2017 in the said certificate Richa A-21-126 Page 3 of 8 it is stated that majority of oral cancer are caused by tobacco. The history of patient stated in the certificate dated 2/10/2017 that the tobacco left before many years. That the complaint has not provided since how many years complainant consume tobacco, since how long he left tobacco. It is also argued that as per the causa proxima the cause for cancer is tobacco therefore, claim is not required to be paid. ld. Advocate for the appellant has submitted the appeal has required to be admitted.
Merits of the case :
7. Insurance company has repudiated the claim vide letter dated 1-2-18 at pg no. 56 and order dated 22/2/18 at pg no. 70 wherein it is stated as under :
"we have once again examined the issue and would like to inform you that your above mentioned claims stand repudiated by us for the following reasons.
1. The claim is repudiated as treatment arising out of illness/ disease/ injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances.
2. As per policy terms and conditions, claim is not payable, under clause no. 4.11 ( please refer to policy copy for details).
3. Explanation :- As per claim documents it is observed that patient is having h/o tobacco chewing. As per policy terms and conditions use of tobacco leading to cancer is excluded from the scope of the policy. Hence the claim is not payable.
8. The learned district Commission has relied upon on following judgment :-
"i) CPJ June 2018 page 253 Oriental Insurance Company Limited V/s. Ramesh Kumar wherein Hon'ble National Commission has observed in para 12 which reads as under :Richa A-21-126 Page 4 of 8
12. He has further referred to discharge summary of Fortis Escort Hospital, Amritasar having the past history. It has been stated that the patient was known case of hypertension, Type II DM and COPD for the last 2 years. With regard to hypertension and DM, no period has been given. With regard to COPD, counsel for the appellant/Op has not referred any document that before taking the policy, the complainant was having the knowledge of this disease and was taking the treatment. In case it is not so then mere reference in the discharge summary is not sufficient and the Op was required to lead any . independent evidence to prove this fact. Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder singh V/s. National Insurance Co. Ltd., decided on 24/01/2011 wherein it has been observed that " recording of history of patient in the above stated manner docs not become a substantiate piece of evidence and convincing evidence be brought on record -- that complainant was aware of pre-
existing disease for which he had taken the treatment of discasc." Counsel for the complainant has referred that in case the complainant was not aware of the discase even if there was some problem that cannot be categorized as pre-existing disease. In this regard, he has made a reference to III 2-14 CPJ 340 (N.C.) "New India Assurance Company Ltd. through its duly constituted Attorney, Manager V/s. Prakash Mumar "
that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check up and on that ground repudiation is not justified. Further no Doctor of Fortis Escort Hospital, Amritsar has been examined on what basis he has written that complainant was suffering from COPD for the last 2 years. It has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (N.C.) "Life Insurance Corporation of India & Ors. V/s. Kunari Devi" that history recorded on the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of discase not proved. Therefore, we do not agree with the pica raised by the counsel for the appellant/Op that the claim is not payable on the basis of pre-existing disease. We are of the opinion that the District Forum has rightly appreciated the evidence on the record and has rightly come to the conclusion that the claim was wrongly rejected."
v) 2007 CPJ 336 (N.C.) Wherein Hon'ble National Commission has observed as under:
Ahmedabad Ombudsman Centre, Case No. 11-002 302-10, Mr. Premnath K. Ahuja V/s. The New India Assurance Co. Ltd, Award date: 31-12-2009. The respondent has produced a certificate of DR. S$ Gami confirming that the complainant was tobacco chewer whereas the complainant has denied and the respondent has repudiated the claim on the basis of mere nothing of MD doctor and it was also not confirmed the tobacco chewing by complainant was the cause of cancer. The investigating doctor has not submitted any supporting evidence showing that the complainant 'Cancer was as a result of tobacco chewing." Hence, the decision of the respondent to repudiate the claim Richa A-21-126 Page 5 of 8 is not justified and directed to settle the claim as per rules. The complaint stands succeeds."
vi) (ID) 2011 CPJ 418 (N.C.) Life Insurance Corporation of India V/s. Ashok Manocha wherein Hon'ble National Commission has observed as under:
* It is well settled that pleadings cannot be held as evidence and in the absence of any evidence in support of the case set up, the certificate produced by the Petitioner from the hospital is of no help to the Petitioner because as stated above the petitioner took no steps to prove the same; production of a documents is different from proof of the same."
9. On peruseing of documentary evidence following facts emgre
(a) As per certificate of the Dr. Krunal M. chandarana Hospital dated 2/10/2017 at pg no. 32 in the column of history it is stated tobacco has left many years.
(b) As per certificate was issued by the Dr. Umang S. Desai Ayusha cancer hospital dated 13/12/2017 at page no.53 it is stated as under :-
"This is to certify that Devendrabhai V. Shah was operated in my hospital for Carcinoma Left Buccal Mucosa. He had complain regarding it since 2 months.
Majority of Oral Cancers are caused by tobacco. However, according to the history given by the patient, he had quit tobacco before many years."
(c) The opponent insurance company has produced policy particular at pg no. 45 -52 wherein relevant exclusions clause no. 4.11 is stated as under :-
"Exclusion : the company shall not liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of 4.11 Expenses on victims and tonics unless forming part of treatment for injury or diseases as certified by the attending physician."
(d) Appellant has also produced medical literature at pg no. 59- 62. This is in general. Therefore, it is not applicable in cases where/medical opinion is required.
Richa A-21-126 Page 6 of 810. The opponent insurance company is relying upon medical certificate dated 13/12/17 issued by the Dr. Umang S. Desai. Dr. Umang S. Desai has not filed affidavit in support of his contention of the certificate. The insurance company has not examined on oath Dr. Umang S. Desai therefore, complainant has not avail opportunity to cross examination of Dr. Umang S. Desai. The opponent has also relied upon the history given by the Dr. Krunal M. Chandarana of hospital but it is specifically stated that 'tobacco left before many years' this statement is not helpful to the appellant as Cuasa Proxima has not established.
11. In view of the above said documentary evidence, reasons stated in memo of appeal, written arguments of appellant, record of the case, reasons stated by Learned District Commission in the impugned judgment, ratio laid down in of above referred judgments, we are of the opinion that there is no breach of terms and condition of the policy, and there is no Causa Proxima with the illness of the complainant. Therefore, the insurance company has wrongly repudiated the claim. It can be said the there is deficiency in service behalf of the appellant insurance company. Hence, following order has passed.
ORDER A) The appeal no. 126 of 2021 is dismissed at the stage of admission.
B) The order passed by the Consumer Disputed Redressal Forum, Bhavnagar in Consumer Complaint No.33/18 dated 31.12.2020 is hereby confirmed.
C) No order has to cost.
D) Office is directed to verify the amount deposited by the appellant in appeal No. 126/20 and if found deposited, refund the same with interest, Richa A-21-126 Page 7 of 8 if any, accrued on the deposit to the appellant by issuing A/c. payee cheque in the name of the appellant. The A/c. payee cheque may be handed over to the attending advocate after following due procedure and verification.
E) Registry is directed to send copy of this judgment to the parties.
Pronounced in the open court on this 15th March, 2021.
[Mrs. U. P. Jani] [Mr. V. P. Patel]
Member President
Richa A-21-126 Page 8 of 8