State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Raj Narayan on 29 March, 2007
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: 29-03-2007 Appeal No. A-32/2003 (Arising from the order dated 09-12-2002 passed by District Forum-III, Janakpuri, New Delhi in Complaint Case No.181/2002) National Insurance Co. Ltd., Appellant Through its Manager, Through DRO II, 2E/9, Jhandewalan Extn., Mr. Kamal Deep, New Delhi-110005. Versus Shri Raj Narayan, Respondent R/o Flat No. 15, Through Lucky Home Society, Mr. Sandeep Kumar, Plot No. 19/1, Sector 13, Advocate. Rohini, 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, PRESIDENT (ORAL) Vide impugned order dated 09-12-2002 the District Forum has directed the appellant to settle the mediclaim of the respondent within 60 days of receipt of the order and pay interest at the rate of 10% p.a. on the claimed amount as the claim was rejected under the exclusion clause 4.2 providing that the insured is not entitled for reimbursement of the medical expenses in case there is pre-existing disease.
2. Feeling aggrieved, the appellant has preferred this appeal.
3. Respondent obtained a Mediclaim Policy from the appellant which was valid for one year from 07-06-1999.
After three days he fell sick and was advised comprehensive check up. Ultimately he was admitted in the Malhotra Heart Institute on 22-06-1999 and underwent heart surgery on 05-07-1999.
He submitted a claim of Rs. 1,61,611.90 by way of letter dated 22-09-1999. The claim was rejected on the ground that respondent had concealed existence of the disease at the time of obtaining the Mediclaim Insurance Policy.
In this regard the appellant contacted number of times by writing letters requesting him to submit the requisite documents along with history sheet and certain clarifications from Dr. V.M. Kohli who attended him and on whose recommendations he had undergone heart surgery. Since there was no response from Dr. Kohli, the appellant appointed Dr. A.K. Batra for investigation of the case and according to his report respondent had this disease prior to the policy which fact he had concealed. While acting on this report the appellant rejected the claim.
4. As regards the invocation of exclusion clause by the appellant, the District Forum has observed that it was only after one month the insurance papers along with rules were sent and therefore the respondent was neither aware of any exclusion clause nor was any such terms and conditions of the policy at the time of proposal form and issue of cover note. However, as regards pre-existing disease the District Forum came to the conclusion that appellant has failed to establish that respondent was having heart disease prior to taking the policy.
5. The impugned order has been assailed by the learned Counsel for the appellant mainly on the following grounds:-
(i) The list of events as shown at page No.1 shows that the respondent was aware of the fact that he was having this disease and was undergoing treatment. The list shows that respondent opted for Mediclaim Policy on 07-06-1999 and he fell sick after three days i.e. 10-06-1999. He consulted one Dr. O.P. Arora who advised him comprehensive check up.
In the third week he again consulted V.K. Kohli and after the check ups Dr. Kohli immediately referred him to Malhotra Heart Institute. He was admitted in the Institute on 22-06-1999 and underwent surgery on 24-06-1999.
(ii) As per exclusion clause 4.2 any disease other than those stated in clause 4.3 contracted by the insured person during first 30 days from the commencement date of the policy are excluded. However, this exclusion clause does not apply if in the opinion of panel of medical practitioners consulted by the Company for the purpose, insured could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance company.
It further provides that this condition shall not however, apply in case of the insured person having been covered under this scheme or group insurance scheme with any of the Indian Insurance Companies for a continuous period of preceding 12 months without any break.
6. Let us see what clause 4.2 provides, which reads as under:-
Clause 4.2 Any disease other than those stated in clause 4.3 contracted by the insured perons during the first 30 days from the commencement date of the Policy. This exclusion shall not however, apply if in the opinion of panel of Medical Practitioners constituted by the Company for the purpose, the insured person could not have known of the existence of the Disease or any symptoms or complaints there of at the time of making the proposal for Insurance to the Company. This condition 4.2 shall not however, apply in case of the insured person having been covered under this scheme or group Insurance scheme with any of the India Insurance Companies for a continuous period of preceding 12 months without any break. Subject otherwise to terms conditions, exclusions and limitations of the policy.
7. Clause 4.3 is relevant and prescribes as under:-
Clause 4.3 provides that during the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhegia or Fibromioma, Hernia, Hydrocele, Congenital, Internal disease, Fistula in anus, Piles, Sinusitis and related disorders are not payable if these disease are pre-existing at the time of proposal, they will not be covered even during subsequent period of renewal too.
8. However, the learned Counsel for the appellant further contends that in respect to the disease of the nature as specified here, from circumstances of respondent having been subjected to surgery within three days of his falling sick shows that respondent had full knowledge that he was having such disease which he did not disclose it and her disease is such a disease which develops over the period and not in one go.
9. The contention of the counsel that respondent did not deliberately disclose about the problem as in such case surgery cannot be advised within three days is completely devoid of merit as respondent fell sick on 10-06-1999 and was subjected to comprehensive check ups and it was in the third week of June he again consulted Dr. V.K. Kohli who advised him to have surgery. Surgery was undertaken on 24-06-1999 whereas he was taken to hospital on 22-06-1999.
10. Heart diseases are such diseases which sometimes a person finds difficult to detect at first go.
Unless person is diagnosed and hospitalized for such a disease in the near proximity of obtaining insurance policy he is not supposed to know as to from which disease he is suffering from.
To expect a layman to come to the conclusion that he is having heart disease merely because he feels chest pain or some other pain, is too much. Instances are not rare where people have suffered a first fatal heart attack without having an inkling for the same in the past.
11. Clause 4.2 is applicable only in respect of those diseases which are other than those stated in clause 4.3 contracted by the insured person during the first 30 days from the commencement of the date of the policy. This clause is not applicable if in the opinion of panel of medical practitioners constituted by the company for the purpose of insured person could not have known the existence of the disease or any symptoms or complaints thereof at the time of making proposal for insurance to the Company.
12. So far as clause 4.3 is concerned, there is no dispute that the disease for which the respondent was admitted and treated is not covered under this clause. Learned Counsel for the appellant has referred to the opinion of the medical practitioners appointed by the Company Dr. A.K. Batra which raised queries instead of giving opinion. Dr. Batra after perusing documents and prescriptions prescribed by Dr. V.M. Kohli had raised the following queries:-
(i) When did the claimant sustain the old interior wall Myocardial Infection and the recent Anterior wall Byocardial Infection? Who were they treated? This information may be supported by the Discharge Summaries; Prescriptions of consultations and Reports of Investigations.
(ii) For how long he has been having Asthma?
What treatment was being taken by him for the same? This information may also be supported by relevant prescriptions of consultations.
(iii) A certificate from Dr. V.M. Kohli providing athe duration for which Mr. Jain is a known patient of Iochaemic Heart Disease and Asthma. A comment may also be given regarding the dates when the patient had sustained old Inferior M.I. and Recent Ant. M.I. as referred in his prescriptions, dated 09-07-1999 and 14-07-1999.
13. As is apparent from the aforesaid queries, Dr. A.K. Batra, himself did not come to the conclusion that the respondent was in the knowledge of the fact that he was having such diseases.
He only raised the queries to be answered by the respondent in order to arrive at a conclusion whether the respondent had a prior knowledge about the knowledge of the disease or not. If a medical practitioner cannot come to the conclusion after examination of the record of treatment and prescriptions prescribed by the treating doctors then who else can come. The purpose and object of clause 4.2 is to elicit a definite opinion of medical practitioner to the effect that insured was having prior knowledge about his disease.
14. On the concept of pre-existing disease and the disease like the one in hand we have dealt with other diseases like hypertension, diabetes and occasional pain in the chest etc. also and our conclusions in case after case 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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.
(xi) 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.
15. Even if the first doctor to whom the respondent had consulted had made observation on the prescription slip for comprehensive check up does not mean that the insured had prior knowledge of the suffering from IHD.
16. Had it been so he would have been hospitalized at the prior point of time? The object of the insurance policies is to protect the interest of consumers. If a layman obtains medical insurance policy the understanding of a common man is that he shall be reimbursed expenses incurred by him during the hospitalization for the diseases except those which are mentioned in clause 4.3. Such an approach of Insurance Company is not at all consumer friendly but is an approach accentuated and prompted by dubious design as to how to frustrate and reject the claim of consumers and also to promote its own interest. It appears that this approach has made these companies very rich and that too at the cost of poor consumers on whose money they survive and thrive. Thousands of consumers have suffered at their hands for years together and in the process the Insurance Companies are paying very heavily through their nose by way of interest on the claim amount as their disputes are not adjudicated for more than 10 to 15 years by the Consumer Fora and Commission.
17. As many as more than 700 cases have been decided against the Insurance Companies where interest was awarded which was more than the actual amount. It appears that the Insurance sector is oblivious of the fact that by such an approach qua the consumers, it is bleeding itself to death.
18. Foregoing reasons persuade us to dismiss the appeal being devoid of merit.
19. Copy of this order be sent to the Chairman of all the Insurance Companies to monitor such cases personally by deciding the disputes in a very fair and consumer friendly manner at the initial stage itself.
20. Copy of this order be sent to the Insurance Regulatory Authority, Hyderabad for recasting and for having complete relook of the terms and conditions of the Insurance Policy, particularly in respect of Mediclaim Insurance Policy. The exclusion clause shall be made a part and parcel of the insurance cover note as well as the proposal form as no consumer is expected to know as to in what eventuality he will not get medical expenses reimbursed because such policies have micro printed terms and conditions running into pages after pages and are received in most of the cases when the consumer had already suffered. Despatching of such policies after such a long time and not giving it to the insured on the day when the proposal form is accepted or the cheque amount is received itself amounts to deficiency in service as the contract is concluded the moment consideration is received. Whenever document is given to the insured at the time of receiving the consideration shall cover the terms of contract and no other contract.
21. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
22. 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.
23. Announced on the 29th March, 2007 (Justice J.D. Kapoor) President (Rumnita Mittal) Member jj