State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Shiv Kumar Rupramka on 22 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:22.03.2007 Appeal No.700/2002 (Arising from the order dated 03.04.2002 passed by the District Forum(East) Saini Enclave, Delhi in Complaint Case No.1668/2000) The New India Assurance Co. Ltd. Appellant Through Regional Office, through Mr. R.K. Tripathi Gulab Bhawan, 6 Bahadur Shah Zafar advocate. Marg, New Delhi. New Delhi-110001. Versus Sh. Shiv Kumar Rupramka Respondent C-215, Sarvodaya Enclave through Dr. B.K. Dwivedi, New Delhi. advocate 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)
1. Respondent obtained medi-claim policy from the appellant for a period of one year w.e.f. 20.06.1998 and the sum assured was Rs.2,00,000/-. He developed sudden illness and was admitted with sudden increase of weight, breathlessness, sleeplessness with excessive snoring, EDS for more than two years. He also gave history of being case of hypertension for last 15 years. His claim of Rs.1,12,350/-, towards medical expenses incurred, was repudiated on the ground of non-disclosure of the pre-existing disease. Feeling aggrieved the respondent filed the instant complaint before District Forum.
2. Vide impugned order dated 03.04.2002, the complaint was allowed and the appellant was directed to pay Rs.1,12,350/- with 9% interest w.e.f. 24.10.1998 till the amount is actually paid and Rs.10,000/- as compensation and Rs.1,000/- as cost of the proceedings.
3. Through this appeal filed under section 15 of the Consumer Protection Act 1986, the impugned order has been assailed mainly on the ground that the respondent intentionally concealed the factum of suffering from the disease and existence of disease is manifest from the fact that respondent was admitted in the hospital for aforesaid disease within 1 month of taking the insurance policy and secondly even if it is assumed that the disease was not pre-existing, the appellant is not liable to reimburse the medical expenses incurred on equipment C-PAP, which is used for curing the disease of excessive snoring or sleeplessness, as the policy was only to reimbursement of medical and surgical expenses.
4. We will not dwell much on the concept of repudiation of claim by the appellant on the false declaration of the insured about the existence of pre-existing disease as we have already dealt with the concept of pre-existing disease. Some of the conclusions are as under:
(i) The 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.
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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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.
5. In view of the foregoing conclusions as to the concept of pre-existing disease we feel that the repudiation of the claim by invoking clause 4.1 i.e. exclusion clause was unjustified.
6. Now the next contention of the counsel for the appellant that calls for determination is whether expenses incurred upon the machine known as C-PAP which is a life saving machine to control the disease in question was reimbursable or not. In this regard clauses 3.2 and 1.00 of the policy are relevant and are as under:
3.2 POST-HOSPITALISATION Relevant medical expenses incurred during period upto 60 days after Hospitalization on disease/illness/injury sustained will be considered as part of claim as mentioned under item 1.0 above.
Clause 1.00 In the event of any claim/s becoming admissible under this Scheme, the Company will pay to the insured person the amount of such expenses as would fall under different heads mentioned below and as are reasonably and necessarily incurred thereof by or on behalf of such insured person, but not exceeding the sum insured in aggregate mentioned in the scheduled hereto:
A) Room, boarding expenses as provided by the Hospital/Nursing Home.
B) Nursing Expenses C) Surgeon, Anaesthetist, Medical Practitioner, Consultants, Specialists fees.
D) Anaesthesia, Blood, Oxygen, Operation Theatre charges, Surgical appliances, Medicines and Drugs, Diagnostic, Maternal and X-ray, Dialysis, Chemotherapy, Radiotherapy, Cost of pacemaker, Artificial Limbs and cost of organs and similar expenses.
7. This clause 1.00 does not specifically refer to the device of the type one in question namely C-PAP but it specifically makes clear that nursing expenses and expenses for the disease Anaesthesia, Blood, Oxygen, Operation Theatre charges, Surgical appliances, Medicines and Drugs, Diagnostic, Maternal and X-ray, Dialysis, Chemotherapy, Radiotherapy, Cost of pacemaker, Artificial Limbs and cost of organs and similar expenses, are admissible.
8. As is apparent from this clause even those equipments are reimbursable which are essential for treatment of the disease and necessary for saving life, for instance pace maker and artificial limbs. So far as C-PAP is concerned any patient having the disease the respondent was having cannot survive long if such system is not used. Rather he can die any moment if such a device is not used. Rather he can die any moment if such a device is not used. This system has to be used at all times and is therefore part of the treatment of the disease and if patient does not use this device he puts himself at risk of death or repeated problem of cardiac failure. Thus the meaningful interpretation of the aforesaid clause has to be provided keeping in view the nature of the disease and the curing and remedy for the same. The disease and the treatment on hospitalization should have nexus with each other. Survival after receiving treatment for the disease in question without use of C-PAP system is always at risk.
9. Thus from any aspect we may examine the matter, C-PAP system is an equipment like pace-maker or any other such equipment without which there is no cure or any relief from the disease respondent was suffering from.
10. It is universal rule of interpretation that the contract or the statue should be read as a whole and not in isolation and every clause of the contract and every section of statute should be provided meaning which should be in consonance with the aim and object of the contract and the statute. It should serve its purpose and promote its object. Applying this rule we do not find any escape from the conclusion that the C-PAP system prescribed by the doctor was such instrument which was essential for if not curing the disease as some disease are not curable but controlling it to such an extent that without which the life of the insured is always at risk. The disease in question is such a disease, which kills a person in sleep and if C-PAP system is not considered as an essential part of the treatment of the disease then we do know what else shall be considered.
11. Foregoing reasons persuade us to hold that the respondent was entitled for re-imbursement of the expenses incurred by him towards the purchase of this equipment. However, interest awarded by the District Forum by way of compensation was in our view not awardable, because there was no equitable ground though lump sum compensation could have been awarded for the mental agony and harassment suffered by the respondent. Wherever the nature of dispute is of adjudicatory nature and involves more than two or three interpretations it does not form basis for awarding interest by way of compensation which is always awarded on the ground of equity, good conscious and justice. Otherwise consumer should be awarded an amount as compensation as per Section 14(1)(d) of the Consumer Protection Act 1986, as to the actual loss or injury suffered b him as well as mental injury suffered by him.
12. In view of the aforesaid reasons we partly allow the appeal by maintaining the direction of payment of a sum of Rs.1,12,350/- and lump sum compensation of Rs.25,000/- which shall include the cost of litigation and set aside the rest of the order. The payment shall be made within one month from the date of receipt of this order.
13. The FDR, if any deposited by the appellant, be returned forthwith.
14. A copy of this order as per statutory requirements be forwarded to the parties free of costs and also the concerned District Forum and thereafter the file be consigned to Record Room.
Announced on 22nd day of March, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri