State Consumer Disputes Redressal Commission
M/S.New India Assurance Co. Ltd., vs M. Krishnamoorthy, on 13 January, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.110/2006 [Against order in C.C.33 /2003 on the file of the DCDRF, Karur] DATED THIS THE 13th DAY OF JANUARY 2010 M/s.New India Assurance Co. Ltd., | KVR Complex, 3rd Floor, | Appellant/Opposite Party 80 Feet Road, | Karur 2. | Vs. M. Krishnamoorthy, | S/o. Muthaiyan, | Respondent/Complainant 82/1, Kongu Nagar, 50 Feet Road, | Vengamedu, | Karur 6. | The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to pay a sum of Rs.1,12,978.74 with interest at 12% per annum, to pay Rs.50,000/- towards loss, pain, suffering and mental agony, and to pay the cost. The District Forum partly allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.09.08.2005 in C.C.33/2003. This appeal coming before us for hearing finally on 23.12.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant /Opposite party : M/s.S.Manohar, Mrs.Elveera Ravindaran, Advocates. Counsel for the Respondent/ Complainant : M/s.Anand, Abdul & Vinodh Associates, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party in C.O.P.33/2003 on the file of the District Consumer Disputes Redressal Forum, Karur, is the appellant.
2. The Consumer/Complainant, respondent herein knocked the doors of the District Forum, seeking directions against the appellant/opposite party to pay a sum of Rs.1,12,978.74, being the medical expenses and for a sum of Rs.50,000/- as compensation, for sufferings and mental agony caused by deficiency on the following grounds.
3. The complainant had taken joint mediclaim policy for himself and his family members for the period 31.07.2002 to 30.07.2003, paying requisite premium, which is the continuation of the policy taken from the year 1997.
In the month of August 1997, the complainant underwent bypass surgery at Apollo Hospital, for the replacement of new veins in the coronary arteries which were blocked by plague and thereafter, there was no problem and the complainant continued in the Police Service as Inspector of Police.
4. In the month of August 2002, the complainant had breathing problem, for which, he underwent Cardiac Stress Analysis Test, which disclosed the condition of Cardiac, as restricted blood flow in the heart, for which, he underwent Angiogram on 12.09.2002 at Meenakshi Mission Hospital, Madurai, for which, he had taken treatment from 12.10.2002 to 15.10.2002, spending a total sum of Rs.1,12,978.74. At no point of time, the complainant suppressed any pre-existing disease.
Based upon the mediclaim policy, when the complainant claimed for the reimbursement of the medical expenses, the same was repudiated as if the complainant was having pre-existing disease, which he had concealed or failed to disclose, thereby, causing deficiency, leading to mental agony, tension to the complainant. Despite, the issue of notice, the deficiency so caused by the opposite party was not rectified. Therefore, he was constrained to file this petition for the above relief.
5 . The defence briefly as follows:-
The scrutinization the hospital records of the complainant disclosed that he was a known case of CAD disease and had undergone treatment in 1997 itself. It also revealed, that he was suffering from myocardial infraction which was suppressed by the complainant, at the time of taking the policy. Since the complainant had taken mediclaim policy, suppressing the heart ailment, medical treatment taken, that would amount to suppression of material fact, since he had concealed the pre-existing disease. The other averments are denied. The repudiation is well justified, which cannot be termed as deficiency in service, thereby, praying for the dismissal of the claim.
6. The District Forum scrutinizing the case and counter case of the parties, which are supported by an affidavits and marking Ex.A1 to Ex.A21 and Ex.B1, deduced the conclusion, that there was no suppression of material fact including the pre-existing disease, and this being the fact, the denial on the part of the opposite party to reimburse the medical expenses, would amount to deficiency in service as contemplated under the Consumer Protection Act, 1986. On that basis, as per the order dated 09.08.2005, a direction came to be issued against the opposite party, directing them to pay a sum of Rs.1,13,000/- towards medical treatment, purchase of medicines with interest thereon from the date of filing of the complaint, till realization with cost, denying the compensation in view of interest granted on the above said amount, thereby, causing grievance to the opposite party and result is, this appeal for the redressal of the same, before this Commission.
7. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
8. The only submission made before us, on behalf of the appellant, was that the complainant/respondent was having pre-existing disease namely heart ailment on the date of taking of the policy, which he had suppressed wantonly and in this view, the repudiation was justifiable when the claim was lodged, which was not properly analyzed by the District Forum, which is opposed.
9. Ex.A6 is the Hospitalization and Domiciliary Hospitalization Benefit Policy, covering the period 31.07.2002 to 30.07.2003, under which alone the claim was made. As seen from this policy, it appears, on 30.07.2002 proposal form and declaration was made, which should be available with the opposite party, since having obtained the proposal form alone, they should have issued Ex.A6. Except Ex.B1 which contains general conditions regarding this kind of policy, no other document has been produced. Therefore, the Forum as well as this Commission has no opportunity to know, whether the complainant had made the declaration properly, disclosing the entire fact, or suppressed any material facts as now claimed.
For the non-production of the proposal form, even an adverse inference could be drawn, as if nothing had been suppressed by the complainant and that is why the opposite party failed to produce the same.
Therefore, on the basis that the complainant had suppressed the material facts or on the ground that he had pre-existing disease, on the date of issuance of this policy, rejecting the claim, as improperly did by the Insurance Company was not permissible, and therefore, the contention that the District Forum has failed to perform its duty properly must be incorrect, whereas it performed its duty properly rejecting the contention of the opposite party, in which, we are unable to find any fault.
10. Admittedly, Ex.A6 is the continuation of the previous policy or in other words, it is the renewal of the old policy, taken year by year. The first policy was taken as disclosed by Ex.A1, giving proposal for the period 30.7.97 to 29.7.98. As said above, the proposal form signed by the complainant before taking Ex.A1 was also not produced and therefore, we have no materials to understand, what was the declaration, whether the complainant had disclosed about his ailment if any etc., True, since the parties have entered into a contract, though it is a mediclaim policy, the terms and conditions available therein are binding, not disputed. In the policy, there is Exclusion Clause, which says 4.0: The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of.
11. 4.1. Such disease which have been in existence at the time of proposing this insurance.
Pre-existing condition means any injury which existed prior to the effective date of this insurance.
Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance. Whether or not the insured person had knowledge that the symptoms were relating to the sickness. Complication arising from pre-existing disease will be considered part of that pre-existing condition.
12. The learned counsel for the appellant relying upon this condition alone, justifies the repudiation of the claim by the Company, as if even on the date of policy under Ex.A6, he had heart ailment which was suppressed and therefore, the Company is not bound to reimburse the medical claim, as per Exclusion Clause. In this context, we have to see whether the complainant was suffering from any pre-existing disease, either on the date of Ex.A1 or on the date of Ex.A6 since Ex.A6 is the renewal policy, so as to say that Exclusion Clause would be applicable, thereby, depriving his right to claim the medical expenses.
13. The first policy was taken on 30.7.97. As disclosed by Ex.A7, and Ex.A8 in the month of August 1997, the complainant had heart ailment which was clinically diagnosed as Recent Anterior Wall MI, for which, he had taken treatment at Apollo Hospital, namely, bypass surgery. According to the complainant, thereafter, he has not taken any treatment and in fact he was working as Inspector of Police, throughout. Now, the claim is not made for the treatment taken at Apollo Hospital. Therefore, the treatment taken by the complainant, for heart ailment in the month of August 1997, cannot be taken as pre-existing disease, since on the date of taking the policy at the first instance, he had no such ailment also, since the diagnosis also revealed, it was recent myocardial infarction. Thereafter, though the complainant continued the policy throughout till 2002, he has not claimed any amount, based on the policy since no such plea or case has been made out before us. Only in the year 2002, the complainant had taken Angiogram followed by Angioplasty which is diagnosed as Old Antero Septal Myocardial Infarction on 12.09.2002.
The policy under which the claim made was taken on 30.7.2002 that is just 1 months or so prior to taking treatment, on 12.09.2002. In view of the fact, the disease is described as Old Antero Septal Myocardial Infarction an argument strenuous in nature was made as if on the date of policy namely 30.7.2002, the complainant was suffering from heart ailment which he had suppressed. As adverted above, the proposal form pertaining to Ex.A6, was not produced. In view of the fact that the complainant had heart problem in 1997, while diagnosing the same in September 2002, it is said Old Antero Septal Myocardial Infarction. We do not have any material that after the bypass surgery, the complainant had continues problems especially he had knowledge about this Old Antero Septal Myocardial Infarction in the year 2002 also, that too, when he was completely treated bypass surgery. If the complainant had the knowledge of Old Antero Septal Myocardial Infarction on the date of taking the policy, though it is described as old, if suppressed then alone it would be called material suppression or having knowledge about the pre-existing disease, he has failed to disclose the same. In a human body, where many systems are available, for the functioning, generally we do not know which part is affected, what kind of disease inflicted, unless it is exposed by diagnosis or made apparent on the face value. It is the duty of the Insurance Company, to prove that the complainant had pre-existing disease. We do not have any material on the side of the Insurance Company, to prove that the complainant knew the pre-existing disease and despite he suppressed. It is not mandatory, that the complainant should presume that even after bypass surgery, he was suffering from Myocardial Infarction, when he had no problems. In view of the absence of evidence to indicate, that the complainant had knowledge about the pre-existing disease, it may not be proper, to conclude that the complainant had pre-existing disease and therefore, the non-closure would make the policy unenforceable.
13. As seen from the conditions available in the policy, heart disease is not specifically excluded, though, we find some other disease. Under Clause 3 in a way, defining the pre-existing disease saying, deemed to mean continuous, it is said that Any one illness will be deemed to mean continuous period of illness and it includes relapse within 45 days from the date of last consultation with the Hospital/Nursing Home where treatment may have been taken.
Occurrence of same illness after a lapse of 45 days as stated above will be considered as fresh illness for the purpose of this policy. Applying the above principles, we have to say, the heart ailment which reoccurred to the complainant was only after 5 years. The Clause says if the illness reoccurred after lapse of 45 days, that will be considered as fresh illness which should includes disease also.
Therefore, the disease which the complainant had in 1997, after taking the first policy, which reemerged in September 2002, cannot be taken as pre-existing disease, and in this view also, in our considered opinion, the repudiation was not justifiable.
14. The learned counsel appearing for the appellant drew our attention to a case decided by the National Commission in LIC of India Vs. Smt.M.Bhavani reported in 2009 (1) CPR 187 (NC) in which it is said If a policy is taken or revival by suppressing pre-existing material fact like pre-existing disease, then the insurance company is not liable to pay amount insured under the policy, which principles may not be applicable to the present case, since we do not have material to say that the policy was taken or revived by suppressing pre-existing disease.
15. In this case, admittedly, the complainant was taking the mediclaim policy continuously from the year 1997. The principle available under Section 45 of the Insurance Act may be extended, though the Section says No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act, as ruled by National Commission in Life Insurance Corporation of India Vs. Kulwant Kumari reported in II (2009) CPJ 317 (NC). The District Forum relying upon the previous decision of the Courts, elaborately discussing came to the decision that there was no suppression, on the part of the complainant and the alleged pre-existing disease was also not made out, then came to the further conclusion that by repudiating the claim of the complainant, the Insurance Company committed deficiency in service, in which we concur, for the reasons assigned. For the above said reasons, the appeal is devoid of merits, the same is liable to be dismissed.
16. In the result, the appeal fails and the same is dismissed confirming the order of the District Forum. There will be no order as to cost.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Ns/Mtj/Insurance