State Consumer Disputes Redressal Commission
Rajesh Kumar Gupta vs The Oriental Insurance Company Limited on 2 February, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 249 / 2006
Rajesh Kumar Gupta S/o Sh. Shyam Lal Gupta
R/o 10, Canal Colony, Kurukshetra (Haryana)
at present R/o House No. 758, Sector-9
Ambala Cantt., Ambala, Haryana
......Appellant / Complainant
Versus
1. The Oriental Insurance Company Limited
through its Chairman
A-25/27, Asaf Ali Road
New Delhi
2. Divisional Manager, The Oriental Insurance Company Limited
Court Road, Muzaffarnagar (U.P.)
3. Branch Manager, The Oriental Insurance Company Limited
Civil Lines, Roorkee (Branch closed)
......Respondents / Opposite Parties
Sh. S.L. Goel, Learned Counsel for the Appellant
Sh. J.K. Jain, Learned Counsel for Respondents
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 02/02/2010
ORDER
(Per: Justice Irshad Hussain, President):
This is complainant's appeal against the order dated 21.09.2006 passed by the District Forum, Haridwar, dismissing consumer complaint No. 04 of 2003, filed for indemnification of the expenses incurred in the medical treatment of Smt. Roopa Gupta, who was also covered under the mediclaim policy taken by her husband Sh. Rajesh Gupta for himself, his wife and two sons on 14.08.2001, effective till midnight of 13.08.2002. Claim was laid for sum of Rs. 2,78,786/-, alleged to have been incurred towards treatment of Smt. Roopa Gupta 2 on two occasions, when she was operated upon for Intestinal Obstruction / Adhesion in the month of March, 2002 and secondly in the month of August, 2002 at M. Prakash Nursing Home, Meerut. Damages amounting to Rs. 1,00,000/- for mental agony and litigation expenses amounting to Rs. 10,000/- were also claimed by the complainant. In dismissing the consumer complaint, the Forum below accepted the stand of the insurance company that the insured suppressed material fact as regards Smt. Roopa Gupta's pre-existing disease of Intestinal Obstruction / Adhesion while purchasing the medical policy and the contract of insurance, thus, stand vitiated.
2. We have heard the learned counsel for the parties and have carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. Learned counsel for the complainant persuasively argued that the Forum below went wrong in accepting the contention of the insurance company, by ignoring the overwhelming evidence to indicate that full disclosure of the ailments suffered by Smt. Roopa Gupta and the medical treatment provided to her has been made in the proposal form and which fact has been duly considered by the insurance company while entering into the contract of mediclaim policy with the complainant. To bring home his point of view, learned counsel drew our attention to the opinion of the medical experts and the evidence adduced on behalf of the complainant by way of affidavit of the complainant and Dr. Rajendra Pal, who had medically examined Smt. Roopa Gupta at the time of purchasing the mediclaim policy and also filled in the proposal form for this purpose. Learned counsel further urged that the expert opinion of the panel of doctors submitted by Chief Medical Officer, Dehradun at our instance, does not adversely tell upon the genuine claim of the complainant that Smt. Roopa Gupta was not suffering from pre-existing ailment of Intestinal Obstruction / Adhesion, for which 3 she had been operated upon twice during the currency of the mediclaim policy. To controvert the opinion of the panel of doctors, learned counsel drew attention to the information obtained under the provisions of the Right to Information Act, 2005 from various hospital and medical institutes and submitted that Intestinal Obstruction with Multiple Interloop Abscess Collections, for which Smt. Roopa Gupta was operated in April, 2002 in Indraprastha Apollo Hospital, New Delhi before obtaining the mediclaim policy, was the post hysterectomy inflammatory complication and not a new ailment, as has also been affirmed by surgeon Dr. A.M. Nagar, who had operated Smt. Roopa Gupta for Intestinal Obstruction / Adhesion in the month of March, 2002. Learned counsel would claim that the Forum below was not at all justified in recording a finding against the complainant.
3. Per contra, learned counsel for the insurance company supported the view taken by the Forum below and came out heavily on the argument of the learned counsel for the complainant that full disclosure of the material fact has been made in the proposal form. Learned counsel also drew attention to the material on record and submitted that the information procured under the Right to Information Act, 2005 by the complainant, could not be taken to undone the positive import of the opinion of the panel of doctors submitted on the query made by us vide our order dated 13.07.2009 and urged that the complainant deliberately suppressed the fact that Smt. Roopa Gupta suffered from Intestinal Obstruction / Adhesion disease, which was not a complication of hysterectomy performed on her earlier and that Smt. Roopa Gupta had reoccurrence of Intestinal Obstruction / Adhesion subsequent to taking of mediclaim policy and, as such, the insurance company was fully justified in repudiating the claim on the ground of suppression of material fact as regards pre-existing disease of Intestinal Obstruction / Adhesion.
44. The submissions being thoroughly considered, we may state at the outset that the contentions advanced on behalf of the complainant do not carry conviction and the appeal being devoid of merit, is liable to be dismissed. We proceed to record our reasons for the said decision.
5. Smt. Roopa Gupta was subjected to hysterectomy and removal of ovarian cyst at Payal Nursing Home, Kurukshetra, where she remained admitted from 09.06.1999 to 17.06.1999 for the said medical treatment by Dr. Pawan Goel. Smt. Roopa Gupta was thereafter operated upon for Sub-acute Intestinal Obstruction with Multiple Interloop Abscess by Dr. S.N. Gupta at Indraprastha Apollo Hospital, New Delhi. Dr. S.N. Gupta had left the hospital and his certificate dated 24.06.2003 was obtained from Panipat by the complainant and placed on record. It read as under:
"This is certified that Ms. Rupa Gupta who was operated upon in April 2000 at Apollo Hospital, had fully recovered from illness at the time of discharge from the hospital."
6. The treatment summary of Indraprastha Apollo Hospital, New Delhi as well as the above certificate of Dr. S.N. Gupta, do not indicate that Intestinal Obstruction was found to be post-operative complication of hysterectomy / ovarian cyst removal performed earlier in the month of June, 1999 on Smt. Roopa Gupta. Complainant also placed on record certificate dated 23.11.2003 of Dr. A.M. Nagar, who had performed surgery on Smt. Roopa Gupta at M. Prakash Nursing Home, Meerut, in support of the contention that Intestinal Obstruction / Adhesion, for which Smt. Roopa Gupta was operated upon during March, 2002, was a post hysterectomy inflammatory complication and not a new disease. There can be no 5 gain saying that the opinion of Dr. A.M. Nagar does not find support from the treatment summary of Indraprastha Apollo Hospital, New Delhi as well as the certificate of Dr. S.N. Gupta, who had performed operation on Smt. Roopa Gupta for Sub-acute Intestinal Obstruction with Multiple Interloop Abscess in the month of April, 2000 and, therefore, we have no hesitation in taking a view that the opinion of Dr. A.M. Nagar could not safely be taken to prevail upon the very relevant and admissible evidence as contained in the treatment summary of Indraprastha Apollo Hospital, New Delhi and the certificate of Dr. S.N. Gupta, to rule out the possibility of Smt. Roopa Gupta suffering from ailment of Intestinal Obstruction / Adhesion in the month of April, 2000 as an effect of post hysterectomy inflammation.
7. The above inference is lent credence to by the opinion of the panel of three surgeons / specialists, namely, Dr. Lata Bisht (Gynecologist), District Women Hospital, Dehradun; Dr. S.D. Saklani, Surgeon, Doon Hospital, Dehradun and Dr. Mahesh Bhatt, Surgeon, Coronation Hospital, Dehradun, those have given their opinion asked for by us vide our order dated 13.07.2009. We have made the following reference for expert opinion from the Chief Medical Officer, Dehradun on 13.07.2009:
"1. Whether Sub-acute Intestinal Obstruction with Multiple Interloop Abscess diagnosed at Apollo Hospital, New Delhi in April 2000, was on account of some infection left from surgical removal of uterus (hysterectomy) of the patient a year before in April 1999?
2. The same patient was again operated upon after about two years in March, 2002 for 'Intestinal Obstruction Adhesion'. Whether or not this subsequent development can be considered as reoccurrence of same illness?"6
8. In response to the query, the opinion submitted by the three medical experts is as under:
"1- cPpsnkuh dk vkWijs"ku vxj twu] 1999 esa gqvk gS rks vçSy 2000 esa blds dkj.k Abscess cuuk lEHko ugh gSA 2- fdlh Hkh Abdominal Surgery ds ckn Intestinal Obstruction Adhesion dh lEHkkouk iwoZ esa fd;s x;s vkWijs"ku ds dkj.k T;knk gks tkrh gSA"
9. From above opinion, it had been made clear that it was unlikely that Intestinal Obstruction with Abscess, for which Smt. Roopa Gupta was operated upon in the month of April, 2000 at Indraprastha Apollo Hospital, New Delhi, would have occurred as an effect of hysterectomy performed in the month of June, 1999. The opinion, in fact, had removed our anxiety arising out of the fact and the highly improbable proposition of occurring of Intestinal Obstruction with Abscess after lapse of sufficient duration from hysterectomy / removal of ovarian cyst in the month of June, 1999 (the period inadvertently by mistake referred to as April, 1999 due to similar mistake in the treatment summary of the Indraprastha Apollo Hospital, New Delhi, although the period referred to June, 1999, rightly referred thereto in the opinion of the experts after perusal of the relevant papers). The opinion of the experts on the second query further make it obvious that reoccurrence of Intestinal Obstruction / Adhesion result from earlier abdominal surgery and in the present case, Smt. Roopa Gupta having suffered with Sub-acute Intestinal Obstruction with Multiple Interloop Abscess in the month of April, 2000 and having undergone abdominal surgery for the same, had in all probability, got the reoccurrence twice and got to be operated for Intestinal Obstruction / 7 Adhesion in the month of March, 2002 and in the month of August, 2002 during the currency of the mediclaim policy. In the face of the peculiar facts of the case and the expert opinion on record, we see no merit in the argument of the learned counsel for the complainant that Smt. Roopa Gupta suffered the disease of Intestinal Obstruction / Adhesion during the currency of the mediclaim policy as a new disease, not connected with the earlier operation of similar disease in Indraprastha Apollo Hospital, New Delhi in the month of April, 2000, prior to taking of the mediclaim policy. The expert opinion taken by the insurance company's investigator from Chief Medical Officer, Meerut and submitted vide letter dated 09.05.2002, also would not salvage the situation in favour of the complainant. The opinion submitted by the Chief Medical Officer, Meerut was as under:
"The case has been examined and reached at the conclusion that this disease arises all of sudden and not takes time to develop. The formation may arises earlier but the patient cannot be aware about it till such time it arises all of sudden. Hence this development cannot be considered as old one or pre-existing."
10. It need to be stated that the opinion was obtained prior to the second operation for similar ailment performed on Smt. Roopa Gupta in the month of August, 2002 and at any rate, the above opinion does not rule out the possibility of Smt. Roopa Gupta having reoccurrence of the disease of Intestinal Obstruction / Adhesion, with which she had suffered even prior to taking the mediclaim policy and knowing it well that the disease may occur again, the material fact about it was deliberately suppressed from the insurance company, to which the proposal form was submitted.
811. The above discussion takes us to the proposal form in question, in which answer to question No. 13(p) has been given in "NO" to the question as to whether Smt. Roopa Gupta has had disease of uterus, ovaries or breast or any specific gynecological disorders, contrary to the admitted fact that she had undergone surgery for removal of ovarian cyst and had hysterectomy done on her in the month of June, 1999. In the proposal form, however, to question No. 13( u), it has been mentioned that the said lady was operated for tumor in April, 2000 and is now okay. Further, in the table relating to illness or disease or accident or operation sustained by Smt. Roopa Gupta, the following description in the proposal form has been given:
Nature of illness/ Date Name of attending Whether fully disease injury and first medical practitioner, cured treatment treated surgeon with his received address and Telephone Number
1. Hysterectomy April Dr. Prem Kumar Yes, Later got and ovarian cyst 2000 Panipat operated in Apollo Hospital
2. S.N. Gupta
12. From above particulars, it is evident that by deliberate disguise, it had been intended to show that Smt. Roopa Gupta has had surgery for the first time in April, 2000, by suppressing the actual and correct fact that she was subjected to surgical interference for Intestinal Obstruction with Multiple Interloop Abscess in April, 2000 and was not subjected to hysterectomy / ovarian cyst removal surgery at that time. The description has been so made with an attempt to suppress the fact of surgery performed in April, 2000 for removal of Intestinal Obstruction etc. Instead of giving specific and categorical description of such ailment and surgery, the same has been coupled with hysterectomy etc. done earlier in June, 1999, so that in most likely reoccurrence of Intestinal Obstruction / Adhesion, a stand may be 9 taken that suppression of this disease has not been made in the proposal form and it was specifically mentioned that Smt. Roopa Gupta was also operated upon at Indraprastha Apollo Hospital, New Delhi for her ailment. The proposal form was filled in by Dr. Rajendra Pal, who filed affidavit in support of the case of the complainant and he being himself a doctor by profession, clearly appeared to have in concert with the complainant, endorsed particulars as above and disguised the correct information, in order to suppress the material fact as regards the ailment of Intestinal Obstruction / Adhesion suffered by Smt. Roopa Gupta, which reoccurred twice, as was the likelihood, after the mediclaim policy had been taken. Therefore, we would neither accept the averment of the affidavit of Dr. Rajendra Pal as correct and true, nor the contention of the complainant, as put forward by his learned counsel that material fact as regards the ailment with which Smt. Roopa Gupta suffered has not been suppressed from the insurance company.
13. In so far as the datas obtained under the provisions of the Right to Information Act, 2005 was concerned, we may safely state that these do not at all help the cause of the complainant, as these do not at all provide information that any of the patients, those were subjected to hysterectomy, got post hysterectomy complication, resulting in Intestinal Obstruction / Adhesion and that too after a considerable period of 10 months, as has been the case here with Smt. Roopa Gupta. Therefore, the learned counsel for the insurance company rightly submitted that the information sought for by the complainant under the provisions of Right to Information Act, 2005, neither be taken to controvert the opinion of the experts obtained by us, nor the fact that Smt. Roopa Gupta suffered from disease of Intestinal Obstruction / Adhesion prior to taking of the mediclaim policy and the information with regard to which was deliberately suppressed from 10 the insurance company and further that Smt. Roopa Gupta had reoccurrence of similar disease, which she and the complainant knew very well when the proposal form was got filled by Dr. Rajendra Pal and by disguise, the particulars of the pre-existing disease suffered by Smt. Roopa Gupta were suppressed, as discussed in the earlier part of the order.
14. While parting with the order, we may advantageously advert to a recent decision of the Hon'ble Supreme Court in the case of Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.; 2009 CTJ 956 (Supreme Court) (CP), pressed into service by the learned counsel for the insurance company. The case pertained to a mediclaim policy and the Hon'ble Apex Court laid stress on the principle that an insured is under a solemn obligation to make a true and full disclosure of the information within his knowledge to the questions asked in the proposal form. Any inaccurate information entitles the insurer to repudiate its liability because there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into the contract of insurance. It is not the proposer who is to determine whether the information sought for is material or not. Material in this context means important, essential and relevant information. There can be no doubt that in the case before hand, the material information as regards the pre-existing disease has been withheld while giving answer to the questions asked in the proposal form and also while giving details of the ailments / diseases of Smt. Roopa Gupta, which were required to be given as such in the proposal form. That being the situation, it was a clear case of suppression of material fact as regards the pre-existing disease and the insurance company was justified in repudiating the claim. The District Forum rightly accepted the contention of the insurance company to deny the relief to the complainant and the order 11 impugned, therefore, does not suffer from any legal infirmity and is, thus, fit to be upheld.
15. For the reasons aforesaid, this appeal lack merit and is liable to be dismissed.
16. Appeal is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K