National Consumer Disputes Redressal
Sukumar Bag vs Oriental Insurance Company Ltd. on 22 October, 2008
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1364 OF 2004 (Against the order dated 27.04.04 in Appeal No. 182/A/1999 of the State Consumer Disputes Redressal Commission, West Bengal) Sukumar Bag Petitioner 100B, Unit B, BF Siding Bhorpara Road, Post Office - B, Garden, Howrah 3 Present address Patharghata Post Office Baharpuli District Burdwan Pin Code 712146 versus Oriental Insurance Company Limited Respondent Through the Divisional Manager 10, Middleton Street Kolkata 700 071 BEFORE: HONBLE MR. JUSTICE ASHOK BHAN PRESIDENT HONBLE MR. B. K. TAIMNI MEMBER HONBLE MR. ANUPAM DASGUPTA MEMBER For the Petitioner Mr. Sanjay Kr. Ghosh, Advocate For the Respondent Mr. Kishore Rawat, Advocate 22nd October 2008 ORDER
ANUPAM DASGUPTA With respect to the judgment and order, recorded by my Brother, Mr. B. K. Taimni, Member and endorsed by the President, National Consumer Disputes Redressal Commission, I would like to observe as under:
2. The relevant facts leading to this revision petition, as evident from the documents produced before the District Forum (and copies thereof enclosed with this petition) and some of the findings of the lower Fora, need to be first revisited in some detail.
(1) Sukumar Bag, the petitioner before us (original complainant and referred to hereafter as the complainant) was a young man of 26 years and 5 months when he took out the medi-claim policy with the respondent (hereafter, the Insurance Company), for an insurance cover of Rs. 3 lakh for the period of one year from 05.05.1997 to 04.05.1998 by paying a premium of Rs. 2,966/-. In his complaint before the District Forum, the complainant stated that he took out the policy under the insistence and/or persuasion of some local agents.
(2) On 03.07.1997, i.e., two days short of two months thereafter, he went to consult one Dr. Aloke Kumar Mondal. From the relevant record filed by the complainant before the District Forum, it is seen that Dr. Mondal recorded, on 03.07.1997, Vertigo (and) General Weakness and also H/o (History of) irregular temp. (Temperature). This observation was followed in the next line by words which are illegible in the photocopy produced before this Commission. In several such cases of illegible records, this Commission has insisted that such photocopies be accompanied by clear-typed copies, filed under affidavit of the party producing the document(s). Though this is not the case in this petition, suffice it to notice at this stage that the next line recorded by Dr. Mondal does mention the word, cough.
(3) Dr. Mondal, apparently consulted again by the complainant again on 07.07.1997, recorded, C/o (Complaint of) occasional breathing distress and recommended E.C.G. and X Ray Chest (PA View). On the next day, i.e., 08.07.1997, Dr. Mondal thought it fit to recommend the complainant to one Dr. Shibananda Dutta for examination and valuable advice. From the statement of expenses incurred, filed by the complainant with his complaint before the District Forum, it is clear that he underwent the tests recommended by Dr. Mondal on 07.07.1997 and, therefore, Dr. Mondal, in recommending, on 08.07.1997, consultation with Dr. Dutta, appears to have had the benefit of viewing the E.C.G. as well as the chest X ray of the complainant.
(4) Dr. S. Dutta, a Cardiologist, recorded in his clinical observations (though, once again, the copy of his report/advice filed before this Commission is illegible at several places): RHD, followed by . Regurgitation (AR) these words are legible. Below the word, Regurgitation, Dr. Dutta drew a line and wrote something, which is illegible, followed by an abbreviation in block capitals, which too is partly illegible but the letters C and R can be read. He went on to advise, Echo č Doppler Screening č, incidentally stands, in medical abbreviation, for with.
(5) On 10.07.1997, the complainant appears to have gone straight (without any written recommendation of any of the doctors he had consulted so far) to Dr. Saibal Gupta, Professor and Head, Department of Thoracic and Cardiovascular Surgery, Calcutta National Medical College and, inter alia, Consultant, Woodlands Hospital and Medical Research Centre, Calcutta. In the record of his examination of the complainant, Dr. Gupta wrote:
Clinically Aortic valve disease with ? mitral regurg with a short history BP 140/50 mm of Hg ? Bact endocarditis (Emphasis supplied) All that need be added here is that the question mark (?) stands for suspected, regurg for regurgitation and Bact for bacterial.
(6) It may not need much medical expertise to notice that Dr. S. Dutta, a cardiologist, came to the conclusion that the complainant had RHD (rheumatic heart disease), leading to regurgitation Regurgitation (AR). These conclusions are not suspected; else they would have been qualified by the question mark (?).
It may also be noticed that Regurgitation (AR) stands for aortic regurgitation, as any standard medical dictionary would show and the term means backflow of blood from the aorta into the left ventricle due to insufficiency of the aortic semilunar valve. On the other hand, Dr. S. Gupta, a cardio-thoracic surgeon, concluded that the complainant had aortic valve disease with (suspected) mitral (valve) regurgitation with a short history and also (suspected) bacterial endocarditis.
(7) It would, no doubt, need some degree of familiarity with cardiology to distinguish between aortic valves and mitral valves of the human heart, the phenomenon termed regurgitation with reference to aortic and mitral valves, the ailments termed rheumatic heart disease and bacterial endocarditis and whether any of these ailments is generally likely to be either congenital or dating back to ones childhood or, at least in the case of the complainant, it dated to a period before he took out the medi-claim policy in question. The least that should have been, however, clear to the District Forum is that there was room for further enquiry into these matters, in consultation with the experts in the field.
(8)(a) This need for further enquiry, in order to render substantive justice in accordance with the principles of natural justice, is more pronounced in this case because, juxtaposed against these opinions before the District Forum, there was also the so-called hand written paper of one Dr. Subrata Sen, a panel physician of the Insurance Company, which appears to be the only attempt on record, to harmonise the opinions of Dr. Dutta and Dr. Gupta mentioned above and summarise them in nearly lay terms. The District Forum dismissed this opinion of Dr. Sen by observing:
It contains some alleged quotations from Davidson and Harrison. Those books have not been produced before us. We do not know whether those are real quotations from the books of Davidson and Harrison or not. Therefore, no reliance can be placed on such handwritten paper.
(8)(b) Having so dismissed the handwritten paper, the District Forum also felt it necessary to record, Dr. Subrata Sen has not come up before us to testify that it was written by him. Surely, it could not be the case that had the books of Davidson and Harrison been produced before the District Forum, it would have been possible for the District Forum to easily unravel, on its own, the true import of the findings/suspicions of a series of three doctors with reference to the crucial issue of whether the disease which the complainant claimed to be a post-insurance development was indeed likely to be so. It may also be noticed that the typed copy of the report of Dr. Subrata Sen, filed before us by the Insurance Companys counsel at the instance of this Commission, does not contain any quotation from the books of Davidson and Harrison. Be that as it may.
(9) Coming to the admissibility of the opinion of Dr. Subrata Sen, the District Forum has relied on two points, viz., that it was handwritten and Dr. Sen had not come up before the District Forum to justify that the said report had been written by Dr. Sen. Now, each of the medical reports/opinions of the three doctors, viz., Dr. Aloke Mondal, Dr. S. Dutta and Dr. S. Gupta is also handwritten. Moreover, none of them came up to testify on their handwritten reports/advice before the District Forum. There is, therefore, no difference between the opinions/findings (including suspicions) of the three doctors mentioned above and that of Dr. Sen. The only difference is that Dr. Sen was a panel physician of the Insurance Company.
(10)(a) The District Forum has relied heavily on a very limited part of the clinical findings of Dr. Gupta recorded by Dr. Gupta on 10.07.1997. The District Forum has, in fact, observed: In this prescription Dr. Gupta wrote that the history of illness was short.
Therefore, the prescription does not disclose any prima facie material to justify calling up Dr. Gupta as a witness for the OP. The District Forum further observed, It is important to notice here that Dr. Saibal Gupta who had examined the complainant in his capacity as a specialist recorded in his prescription that the complainant had a short history of illness. This expression short history corroborates the case of the complainant that he became aware of some disease only when he had felt uneasiness and went to Dr. Aloke Mondal for treatment. Therefore, there was no possibility on his part to suppress any material fact regarding heart ailment at the time of taking the medi-claim policy.
(10)(b) A careful look at the aforesaid clinical finding, viz., Aortic valve disease with (?) mitral regurg with a short history recorded by Dr. Gupta on 10.07.1997 does not, however, persuade me enough to come to such an unequivocal conclusion as that of the District Forum in respect of the period over which the complainant may have had the heart valve ailment. It is not free from doubt whether, in writing his finding as he did, Dr. Gupta referred to the (a) Aortic valve disease being with a short history or whether it was (b) the (?) mitral regurgitation which was with a short history. As already noticed, aortic regurgitation (AR) means backflow of blood from the aorta into the left ventricle due to insufficiency of the aortic semilunar valve while mitral regurgitation (MR) means backflow of blood from the left ventricle into the left atrium due to insufficiency of the mitral valve and they are clearly leakages of two separate sets of cardiac valves.
(10)(c) is also to be noted that Dr. S. Dutta, in his examination of the complainant, recorded Regurgitation (AR) without any question mark to signify suspicion.
(10)(d) Further, the discharge summary of the complainant recorded by Dr. S. Gupta on 28.08.97, post valve replacement surgery of the complainant, diagnosed the complainant with Aortic and Mitral Regurgitation.
(10)(e) In other words, considering the clinical findings of both Dr. S. Dutta and Dr. S. Gupta together, which are more or less contemporaneous, the District Forum ought not have hurried in coming to the firm conclusion that the phrase, viz., with a short history recorded by Dr. S. Gupta was a considered medical finding of his on the length of the time period over which the complainant suffered from the ailment of both these sets of heart valves.
(11) It is also to be noted that, in this context, the State Commission has observed as under:
From the complainants side much has been made out of the fact that in none of the prescriptions of the doctors who examined and/or treated the insured there is a mention that the disease was pre-existing and not of short duration. When a patient approaches a doctor, he primarily goes by the history as given by the patient (in this case the words short history were recorded by Dr. Gupta on the basis of the patients version). Moreover the doctors immediate responsibility is to suggest treatment based on the condition of the patient and it is certainly neither necessary nor expected of him to make detailed investigation about the possible duration of the disease and record the findings thereof.
Clearly, this conclusion of the State Commission is more balanced than that of the District Forum on all counts.
(12) However, the point is not so much that, based on only the medical reports/findings on record, either the District Forum or the State Commission was expected to arrive at a firm finding on the period for which the complainant might have had the cardiac valve ailment for which he was operated upon and for which he claimed reimbursement from the Insurance Co. The relevant point is that under section 13(4) of the Consumer Protection Act, 1986 (hereafter, the Act), it was eminently possible and, in fact, quite necessary for the District Forum to exercise the powers conferred under that sub-section and require Dr. Gupta to testify on the issue as to whether the ailments in question of the complainant were more likely to be congenital or, at least, dating back to any period longer than that since he took out the medi-claim policy. Instead, the District Forum chose to ignore the application of the Insurance Co. to bring in Dr. S. Gupta as a witness before the Forum. Even if that application was rejected, there was enough material before the District Forum for it to suo motu request Dr. S. Gupta to appear before and assist the District Forum in arriving at a conclusion on the above-mentioned issue, based on medical literature and expertise. As observed by the State Commission in this context, this process would not have been prejudicial to the complainant had Dr. Gupta been examined or his expert opinion sought. At the most, this would have delayed the conclusion of the complaint proceedings before the District Forum by a few weeks. It is not the District Forums case that it was under legal obligation to dispose of the complaint, filed in some time in 1998 within the statutory time limit provided for in section 13(3A) of the Act. For, this provision did not exist in the Act at the time when the District Forum passed its orders in March, 1999.
(13) It is true that as expert opinion, the report of Dr. Sen could not be relied upon either by the District Forum or the State Commission in the absence of its being affirmed as affidavit by Dr. Sen. However, my view is that it was equally possible for the District Forum, in accordance with the provisions of section 13(4) of the Act, to require the Insurance Company to file the report of Dr. Sen by way of an affidavit affirmed by the latter. In the alternative, as observed in the case of Dr. S. Gupta, the District Forum could have directed the Insurance Co. to produce Dr. Sen for testifying on his own opinion, which would have also given an opportunity to the complainant to cross-examine him or file interrogatories to elicit his opinion more fully and, if possible to counter that opinion. Neither the District Forum nor the State Commission thought of this - while the District Forum hurried unnecessarily in summarily dismissing the opinion/report of Dr. Sen, the State Commission went on to place heavy reliance on that document.
(14) It has also been observed that Dr. Sen was a mere MBBS degree holder. This is prima facie not so. If the medical qualifications of Dr. Sen were seen together, it would be clear that apart from holding an MBBS degree, he is also a Fellow of the Royal College of Physicians (EDIN). In addition, he seems to be an FICA (USA) the full expansion of this is, however, not known. In any case, the Insurance Company has not cited the opinion of Dr. Sen as an expert opinion it seems to have filed this opinion in routine course before the District Forum after placing all the relevant records relating to the complainants case before the said Dr. Sen. It is also seen that the complainant did not challenge the contents of this report there is no mention of any such challenge in the order of the District Forum while the State Commission observes, But it is also a fact that the complainant has not filed any contrary expert opinion controverting the opinion of D., Sen. Nor is there any record to show that he has challenged the opinion of Dr. Sen in any effective manner.
3. In view of the aforesaid discussion of the evidence on record, two questions arise: (a) is it probable that the complainant, a 26 year old male, claiming to be otherwise hale and hearty, would develop such serious ailment of the aortic as well as mitral valves of his heart as to call for a major surgery for their complete replacement during a period as short as one month (from 05.06.1997 to 03.07.1997, leaving aside the 30-day period from 05.05.1997 within which no claim for reimbursement of expenditure on medical treatment was admissible in terms of the exclusion clause no. 4.2 of the medi-claim policy) and (b) is it also equally probable that such an ailment would cause no symptoms serious enough for the complainant to become aware of some problem with his heart till as late as 08.07.1997, i.e., till he was referred to Dr. S. Dutta? I am afraid it would be very brave of even an expert cardiologist or cardiac surgeon to answer both these questions firmly and state that both these events are more than probable. However, a firm finding could be returned only on the basis of a complete review of the records, aided by relevant medical literature and their interpretation by qualified experts. Such an opportunity does not exist in this case.
4. Having said this, I also find that the revision proceedings before this Commission have gone on four years and it is now over eleven years since the complainant was operated upon for aortic and mitral valve replacement. It would thus be futile to remand the matter back to any of the lower Fora for fresh adjudication based on more informed and qualified expert opinion. The cost of such remand, both in terms of time and money would be disproportionately high and the Consumer Fora are not expected to be oblivious of these dimensions of rendering justice. Moreover, that the Insurance Company has failed to prosecute its case effectively is writ large in the proceedings before the lower Fora. The onus of proving that the complainant suffered from a heart disease prior to taking out the medi-claim insurance policy (a pre-existing condition) and also had knowledge of this lay entirely on the Insurance Company. After obtaining the opinion of Dr. S. Sen it could have itself sought to bring in Dr. Sen before the District Forum for giving evidence on affirmation. The least it could have done was to file the said opinion on an affidavit of Dr. Sen. It could have sought an opportunity to cite expert opinion even before the State Commission, as it was its own appeal before the State Commission. The Insurance Company did none of these things and ought to meet the consequences thereof.
5. In conclusion, therefore, I am disinclined to dismiss the revision petition. Consequently I agree, with some reluctance, with the operative part of the order recorded by my Brother, Mr. Taimni (but not for the same reasons). More specifically, I agree only to the extent that the operative part of the said order restores the order of the District Forum directing the Insurance Company to pay to the complainant the sum of Rs. 2, 88,370/- (rounded off) towards the latters claim for reimbursement of the medical expenditure but not the compensation of Rs. 12,000/-. For reasons that it considered valid, the Insurance Company repudiated the claim of the complainant by its letter dated 03.11.1997. This was reasonably prompt because the claim of the complainant was clearly filed sometime in early September 1997 (no date is mentioned by the complainant in his revision petition but it could not be before September 1997 as he was discharged from the hospital on 29.08.1997) and hence no compensation is called for. I am sure this order would be read along with the majority order of the Bench.
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[ANUPAM DASGUPTA]