National Consumer Disputes Redressal
Dr. Ashish Sharma vs United India Insurance Co. Ltd. & Anr. on 10 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1416 OF 2012 (Against the Order dated 23/02/2012 in Appeal No. 1315/2007 of the State Commission Punjab) 1. DR. ASHISH SHARMA S/o Late Dr M.L Sharma, R/o Sham Sunder Bhawan Opp G.P.O. Civil Lines Jalandhar Punjab ...........Petitioner(s) Versus 1. UNITED INDIA INSURANCE CO. LTD. & ANR. Reg Office: -SCO -123-124, Sector-17B. Through Manager Chandigarh 2. Oriental Insurence Co Ltd., Reg Office: - House No-A-25/27,Asaf Ali Road New Delhi ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN, PRESIDING MEMBER
For the Petitioner : Mr. Bharat Arora, Advocate For the Respondent : For the Respondent No.1 : Mr. Maibam N. Singh, Advocate
For the Respondent No.2 : Mr. Manish Pratap Singh, Advocate
Dated : 10 Mar 2016 ORDER
1. This revision petition has been filed by the complainant, Dr. Ashish Sharma, against the order dated 23.02.2012 of the Punjab State Consumer Disputes Redressal Commission, (in short 'the State Commission').
2. Brief facts of the case are that That Dr. M.L.Sharma father of the petitioner herein had taken medi-claim policy issued by the respondents and had been renewing the same without any break and had been paying the premium regularly. The father of the petitioner (insured) was admitted to hospital from 9.10.2005 to 15.10.2005 and expenses to the tune of Rs.1,45,829/- were incurred. On 22.10.2005 the petitioner made the claim for the expenses incurred to the respondents. The father of the petitioner (insured) expired on 29.10.2005.
3. The respondent No.1 vide its letter dated 10.01.2006 rejected the claim of the petitioner on the ground that patient is known as a case of HTN since 10 years and COPD since 15 years and his present ailment is complication of COPD. The respondents further alleged that the date of inception to medi-claim policy is 06.04.2005 so the ailment comes as pre-existing and as per terms & conditions of the policy, pre-existing ailments are not covered, hence the claim stands repudiated under clause 4.1 and same is not payable. The petitioner sent a notice to the respondent claiming the amount payable by them but the same was not replied. The petitioner filed a consumer complaint No.295 of 2006 before the District Consumer Disputes Redressal forum, Jalandhar claiming the amount spent on medical expenses of late Shri M.L.Sharma (the policy holder) along with interest, compensation for harassment and cost of litigation.
4. The respondent No.1 filed its reply to the complaint alleging that claim of the complainant is not payable in view of Exclusion Clause 4.1 of the insurance policy according to which all diseases which are pre-existing before the inception of the insurance policy are not covered under the insurance policy.
5. The District Consumer Disputes Redressal Forum, Jalandhar, after hearing the arguments allowed the complaint of the petitioner and held that insured cannot be treated having pre-existing disease at the time of the start of the last policy as he has been taking the policies continuously right from the year 1990. The District Forum, vide its order dated 13.07.2007 held that the petitioner is entitled to the claim amount of Rs.1,45,829/- along with 9% interest from the date of filing the complaint till payment and also compensation of Rs.3000/- and Rs.2000/- as cost of litigation.
6. Respondents preferred an appeal before the State Commission. The State Commission, allowed the appeal filed by the respondents and set aside the order of the District forum vide its order dated 23.02.2012.
7. Aggrieved by the order dated 23.02.2012 of the State Commission, the present revision petition has been filed by Dr. Ashish Sharma, the complainant .
8. Heard the learned counsel for both the parties and perused the documents available on the file.
9. Learned counsel for the petitioner argued that father of the petitioner was getting himself insured under mediclaim since 1990. From the year 1990 to 1993 he was insured with the United India Insurance Company, which is the current respondent No.1 and then he shifted to Oriental Insurance Company, which is respondent No.2 from the year 1994-1995. Then again he reverted back to respondent No.1 from the year 2002-2003. Thus, the father of the petitioner had continuous cover since 1990 with one insurance company or the other. The father of the petitioner was admitted to hospital from 9.10.2005 to 15.10.2005 and expenses to the tune of Rs.1,45,829/-were incurred. On 22.10.2015, the petitioner made the claim for this expense incurred to the respondents. The father of the petitioner/insured expired on 29.10.2005. The claim of the petitioner was rejected by the respondent on 10.01.2006 on the ground that patient was a known case of hypertension since 10 years and COPD since 15 years. Under Exclusion Clause 4.1 of the policy cases of pre-existing diseases are not covered. According to the respondents, inception to the mediclaim policy is 6.4.20045 and therefore, the pre-existing disease existed much before this date. The District Forum had rightly appreciated the Exclusion Clause 4.1, which reads as follows:-
"All diseases/injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break."
10. The date of inception is not date of inception of the current policy rather it should be taken as first date of coverage under medicalim by any Indian Insurance Company. Clearly, the inception date is 21.2.1990 when the first Insurance was taken from respondent No.1 and since then the mediclaim coverage was taken continuously every year till the death of the insured. The State Commission has, however, not appreciated this on the ground that copies of the Insurance policy prior to 2004-2005 were not available on the file. The petitioner has submitted copies of all these policies along with revision petition. Learned counsel for the petitioner also argued that the assertion of the opposite party/respondent No.1 that the policy in question was a fresh policy is not correct. The State Commission has failed to appreciate that the last policy from 06.04.2005 to 05.04.2006 was renewed after a gap of 8 days but the respondents have extended all the previous benefits of the policy including the cumulative bonus of Rs.10,000/- and non-inclusion of any disease to the insured by accepting the premium of Rs.5471/-. The terms and conditions of the policy specifically stated that cumulative bonus will be lost if policy is not renewed on the date of expiry but in the present case the same existed. Hence the respondents were estopped from raising the plea that the policy is fresh.
11. Learned counsel for the petitioner has cited the following judgments:-
"(i) Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No.656 of 2007, decided on 17.09.2007, Hon'ble High Court of Delhi, wherein the following view has been expressed:
Insurance- Mediclaim-Reimbursement- Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance- Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension-Petitioner was advised to undergo ECG, which he did- Insurer accepted proposal and issued cover note- It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors- That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension- It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless- Policy would be reduced to a contract with no content, in event of happening of contingency- Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability- Main purpose rule would have to be pressed into service- Insurer renewed policy after petitioner underwent CABG procedure- Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable- As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency- Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."
ii) Praveen Damani Vs. Oriental Insurance Co. Ltd. through Divisional Manager, RP No.1696 of 2005, decided on 03.10.2006 (NC). It has been held that:
17. Hence, in our view, the Insurance Company has erroneously repudiated the claim by relying upon the so-called certificates of Dr. Aggarwal and Dr. A. Farishta to whom they have paid fees. None of the aforesaid certificates by Doctors would establish that the insured was aware of the heart ailment. If, in reality, had he been aware, he would not have waited for its treatment till he obtains the insurance cover, and take the risk of death.
18. The District Forum also relied on Clause 4.1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.
19. If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relied on their Clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest paint etc. prior to 11.8.2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease."
12. Learned counsel for the respondent argued that the mediclaim policy was valid from 6.4.2005 to 5.4.2006 and this was not a renewal of the earlier policy, which was from 29.3.2004 to 28.3.2005 since there is a break of 8 days. The mediclaim policy operative for the period of hospitalization will be treated as a fresh policy. As per Clause 4.1 of the policy due to pre-existing disease of hypertension or COPD, the claim cannot be allowed. The policy is a contract between the insured and the insurer based on trust. By not providing the information about existing diseases, this contract becomes null and void automatically because the trust is broken.
13. I have carefully considered the arguments advanced by learned counsel for both the parties and have gone through the documents. The insured was covered under the mediclaim right from the year 1990 with either the respondent No.1 or respondent No.2. Para 4.1 of the policy is very clear that the inception of the policy would be taken as the date of inception of the first policy given by any Indian Insurance Company. Therefore, in this case, the inception date may be taken as 21.2.1990. So even the period of 10 years and 15 years of the existing diseases are covered within this period and therefore, I am of the opinion that the view of the District Forum that there was no pre-existing disease on the date of inception of the policy is correct. Moreover, the judgments cited by the learned counsel for the petitioner also support his case. The plea taken by the respondent No.1 that there was a gap of 8 days in renewal of the last policy is not tenable in the light of the averments made by the learned counsel for the petitioner that respondent No.1 are bound by the estoppel because the respondent No.1 has extended all the previous benefits of the policy including the cumulative bonus of Rs.10,000/- and non-inclusion of any disease to the insured by accepting the premium of Rs.5471/- . The terms and conditions of the policy specifically stated that cumulative bonus will be lost if policy is not renewed.
14. Based on the above discussions, I find merit in the revision petition. Accordingly the order dated 23.2.2012 of the State Commission is set aside. The respondent No.1 is directed to comply with the order dated 13.07.2007 of the District Forum within a period of 45 days.
...................... PREM NARAIN PRESIDING MEMBER