National Consumer Disputes Redressal
Praveen Damani, Shri Salil Paul vs Oriental Insurance Co. Ltd., Shri S.M. ... on 3 October, 2006
NCDRC
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW DELHI
REVISION PETITION NO.1696
OF 2005
(From the order dated 31.5.2005 in A
No.1089/03 of the State Commission, Chhattisgarh)
Praveen Damani
Aged about 61 years
S/o Shantilal Damani
R/o Near Gujrati
Samaj,
Tikrapara,
Bilaspur (C.G) Petitioner
V/s.
Oriental Insurance Co. Ltd.
Through Divisional Manager,
Divisional Office, Opp. High
Court,
Bilaspur (C.G.)
Respondent
BEFORE :
HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER
For the Petitioner Shri Salil Paul, Advocate
For the Respondent Shri
S.M. Tripathi, Advocate
Dated : 3rd October, 2006
O R D E R
MRS.
RAJYALAKSHMI RAO, MEMBER This Revision Petition is filed by the Complainant, Mr. Praveen Damani, against the opposite party, M/s. Oriental Insurance Company Ltd. (herein after referred to as the Insurance Company) alleging deficiency in service for wrongly repudiating his mediclaim. His complaint in Bilaspur District Forum in Case No.61 of 2002 was dismissed by order dated 3.3.2002 and his Appeal No.1089/2003 before the State Commission also met with the same result vide its order dated 31.5.2005.
Aggrieved by the same, he is in revision before us.
Brief facts of the case are :
Mr. Praveen Damani had obtained a Mediclaim Insurance Policy No.2001/300 with effect from 9.6.2000 to 8.6.2001 from the Oriental Insurance Company Ltd., Bilaspur, for himself, his wife, Sarla and son, Ashish, for a sum assured of Rs.3,50,000/- and paid a premium of Rs.5,174/-. This policy was renewed for a further period of one year from 9.6.2001 to 8.6.2002.
It is the contention of the Revision Petitioner that before the issuance of the policy, he had undergone a complete medical check-up by the Doctors nominated by the Insurance Company and this fact has not been rebutted. The Revision Petitioner, a resident of Bilaspur, Madhya Pradesh, visited Bangalore in August 2000 to see his daughter and on the 11th August, he suddenly developed chest pain and uneasiness. He consulted Dr. Dhanwant Kumar on 15.8.2000 who, suspecting some heart ailment referred him to the Manipal Heart Foundation (MHF). Revision Petitioner attended MHF on 17.8.2000 as an out-patient and was examined by Dr. Ashutosh Dwivedi. As one of the tests, i.e. Tread Mill Test (TMT) showed strong positive, he was advised Coronary Angiography.
Thereafter, the Revision Petitioner got admitted in the MHF on 18.8.2000 and Angiography was done by Dr. Subhas Chandra on the same day which revealed Triple Vessel Disease. He was advised to take some medicines and to attend the OPD for review of his case. He was accordingly discharged on 19.8.2000, and attended the OPD on 21.8.2000. He was advised to continue taking the medicines prescribed by Dr. Subhash Chandra on 18.8.2000 and to take 1 km walk on a pace comfortable to him.
The Revision Petitioner submitted a claim to the Insurance Company on 5.9.2000 for reimbursement of Rs.26,747/- which was repudiated on 3.1.2001 on the ground of pre-existing disease.
On 21.1.2002 the Revision Petitioner went to Bangalore and got admitted in Narayana Hrudyalaya and underwent a by-pass surgery on 23.1.2002. Later, on 26.2.2002, he submitted this Mediclaim which was rejected on 28.8.2002.
The same was rejected. The reason for the repudiation of the claim was that pre-existing diseases were excluded from the insurance cover, and that the Petitioner was aware of the disease or its symptoms, and that he deliberately suppressed this fact. Reliance is placed on the remark Known patient of IHD (Ischaemic Heart Disease), made by Dr. Ashutosh Dwivedi on 21.8.2000 on the OPD papers of Manipal Heart Foundation.
In the light of the facts stated above, the issues to be decided in this matter are:
(a) whether the Complainant was aware of the disease prior to taking the policy and suppressed this material fact from the Insurance Company?
(b) whether such disease which was not within the knowledge of the Complainant till the Doctor brought it to his notice, be considered as suppression of fact and be it termed as pre-existing disease?
(c) Is the Insurance Company justified in putting pre-existing disease under Clauses 4.0 and 4.1 under Exclusion in the policy claim?
(d) If the Complainant gave honest representation and made a genuine claim what is the amount that is payable by the Insurance Company.
Findings :
We heard both the parties, perused the record and come to the conclusion on the above issues a and b that the insured was unaware of this disease till he suffered chest pain which is only on 18.8.2000 and not before 9.6.2000 when he took the policy.
So far the insured is concerned, he had no symptoms of the heart disease prior to 17.8.2000 or else he would have sought medical treatment for the same earlier. Diseases concerning heart which can lead to death would not be ignored and left untreated normally by any one.
It is true that Dr. Ashutosh Dwivedi, Cardiologist of Manipal Hospital, Bangalore mentioned Known patient of IHD in the OPD papers on 21.8.2002. But Dr. Dwivedi himself by his certificate dated 8.5.2001 clarified the context in which he made that remark, and explained the same. His certificate is reproduced herein as under :
This is for the kind information that, Mr. Pravin Damani aged 59 years male patient presented to this hospital for the first time on 17th August 2000 with the first episode of atypical chest pain. He was not a known patient of Ischaemic Heart Disease in past and there was no past history of any chest pain, Diabetes mellitus hypertension or any other major illness. He was not on any medication. On examination his blood pressure was 140/96 mm Hg, Pulse was 80/Min and heart sounds were normally audible. No other adventitious sounds were present. During investigations Echo showed normal LV function, Fasting Lipid profile was normal, Fasting blood sugar was normal and so were his urea and creatine. However, his TMT was strongly positive and therefore he was advised for coronary angiography. Rest of the information is as provided in the coronary angiography report and the discharge summary.
However, it must be noted that Known patient of IHD which is mentioned on the outpatient card on 21st of August is in reference to his admission on 18th and discharge on 19th when he presented with the complaints of atypical chest pain for the first time.
As against this, Dr. K.K. Aggarwal, Cardiologist, on behalf of the Insurance Company, opined that the degree of blockage in all the three vessels to this critical level, as per angiography report, needs 15 years of time to grow to such a degree. Usually patient with such high degree of block, experiences discomfort of various types. In his report dated 19.12.2000, he has categorically stated regarding giving conclusive opinion as to whether heart disease was pre-existing or was a new one, he needs to see ECG tracings and TMT tracings which were not sent.
Another expert opinion was taken by the Insurance Company dated 28.7.2001 from Dr. A. Farishta, Consultant Physician & Cardiologist from Raipur which is given as under :
That he has unequivocal evidence of Coronary Artery Disease for which he was investigated at Manipal Heart Foundation on 17.8.2000.
That, prior to this, he was suspected to be a case of Cornoary Artery Disease for which his ECG + TMT were reported to be done. Reports of this are unavailable. Hence it is not possible to state, how long before being diagnosed at Manipal, he was suspected for Coronary Artery Disease.
Based on the above, inconclusive reports of experts Dr. Agarwal and Dr. A. Farishta, Insurance Company repudiated the claim and informed the insured vide letters dated 8.2.2002 and 8.3.3002. It is only on 10.1.2003 Dr. K.K. Aggarwal gave an affidavit which is given below :
That I have treated thousands of cases pertaining to Cardiac/Heart diseases. The attached opinion/Certificate dated 10.1.2003 and the earlier opinions and findings given by me are based on standard Text Books namely, Heart Disease, 3rd Edition, a Text Book of Cardo-vascular Medicine by Eugene Braun Wald and other standard text books and experience.
That I have gone through all the relevant papers, TMT Report, OPD Discharge, Angiography report etc. of Mr. Praveen Damani, produced before me on the basis of which I am of the opinion that Mr. Praveen Dhamani was a known case of Dyslipidoemia leading to ischemicea heart disease prior to visiting Bangalore and consulting local Doctor there and subsequently Manipal Heart Foundation Hospital.
The fact we need to note here is that Dr. K.K. Aggarwals initial opinion dated 19.12.2000 wherein it is clearly mentioned that he needs ECG Tracings and TMT Tracings for deciding as to whether the disease was pre-existing at the time of taking the policy or not. It is only in his affidavit dated 10.1.2003, much after the repudiation of the claim, he opined that his earlier opinion was based on standard medical text books and it is only on 10.1.2003 he went through the papers produced before him and opined that the insured was a known case of Dyslipidoemia leading to ischaemic heart disease. The Insured consulted local Doctor before going to Manipal Heart Foundation. Neither Dr. Aggarwal nor the Insurance Company produced anything on record as to who was the Local Doctor who had treated the insured ; and, what was the treatment undertaken by the insured.
Further the affidavit by Dr. Aggarwal is given three years after the treatment was taken.
Hence, we reject this evidence since it is not based on facts but on surmises.
By order dated 17.6.2006, this Commission issued witness summons to Dr. Abhishek Dwivedi, the Cardiologist of Manipal Hospital, Bangalore to be present in the District Forum. It is submitted by the parties that Dr. Dwivedi died during that year itself. Dr. Dwivedis clarification on the mistake made on OPD record is not rebutted by the Insurance Company.
In our view, the Insurance Company has erroneously relied on the certificate of Dr. Aggarwal because it was based on medical texts and not based on the reports as the case papers were not given to him for reasons best known to them. He gave the final opinion only in the year 2003 after the Insurance Company sent the case papers of the Complainant. The report Dr. Aggarwal gave on 10.1.2003 also assumes that the Complainant must have had treatment elsewhere is not proved by him or by the Insurance Company. We cannot rely on such assumptions and presumptions of experts. He has not seen nor examined the insured and hence he cannot say that the insured was having knowledge of heart disease. The other expert Dr. Farishta also did not conclusively opined as to how long the Complainant suffered the disease, as ECG and TMT reports were not given to him. We have to rely on the documentary evidence produced by the Complainant which is not disproved by the Insurance Company.
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.
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.
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 relies 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 pain 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.
In view of the above discussion and from the records available before us, in our opinion, the Complainant has proved that he was unaware of the disease at the time of taking the policy and hence the Complaint is allowed.
In the result, we set aside the orders of the State Commission and the District Forum. The Insurance Company is directed to pay Rs.1,38,691/- with interest @ 9% p.a. from 1.7.2002 till the date of payment alongwith Rs.10,000/- as costs to the Complainant within four weeks from the receipt of this order.
J (M.B. SHAH) PRESIDENT ..
(RAJYALAKSHMI RAO) MEMBER P