State Consumer Disputes Redressal Commission
Y.P. Bhasin vs United India Insurance Co. Ltd. on 9 November, 2006
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: 09-11-2006 Appeal No.A-2215/2001 (Arising from the order dated 13-07-2001 passed by District Forum-III, Janakpuri, New Delhi in Complaint Case No.1694/1999) 1. Shri Y.P. Bhasin, Appellant No.1 EC-181, Maya Enclave, Through New Delhi-110064. Mr. B.K. Dwivedi, Advocate. 2. Smt. Sushma Bhasin Appellant No.2 EC-181, Maya Enclave, New Delhi-110064. Versus United India Insurance Co. Ltd., Respondent C-20, Community Centre, Through Janakpuri, Mr. Sameer Nandwani, New Delhi-110058. Advocate. CORAM : Justice J.D. Kapoor- President Mr. Mahesh Chandra - 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) Vide impugned order dated 13-07-2001 the complaint of the appellants seeking indemnification of the insurance claim against mediclaim policy was dismissed on the ground that they had concealed the factum of pre-existing disease that in terms of the insurance policy disentitles the insured claim to the expenses.
2. Feeling aggrieved the appellant has preferred this appeal.
3. Relevant facts for our purpose are as under:-
4. The complainant took a mediclaim policy from the respondent for the period 30-07-1996 to 29-07-1997 which was renewed for a further period of one year after a gap of two days from 01-08-1997 to 31-07-1998.
The appellant stated that she suffered a sudden chest pain in the last week of August, 1997 and was admitted in Sir Ganga Ram Hospital where as per Doctors advice TMT test was done.
Since TMT test report was not satisfactory so the doctor advised for her angiography test which was got done by the appellant at Escorts Heart Institute & Research Centre. These facts were also admitted by the parties. Subsequent to the angiography test the appellant was advised to undergo coronary angiography which was got done by the appellant at AIIMS where the appellant was admitted from 19-01-1997 to 21-11-1997.
5. The appellant lodged first claim of Rs. 17,300/- for the reimbursement of expenses incurred towards angiography test at respondent No.2 hosptial. The said claim was reimbursed by the respondent for a sum of Rs. 12,450/- on 05-05-1998. When the appellant lodged the 2nd claimfor the reimbursement of expenses amounting to Rs. 49,582/- for undergoing angioplasty at AIIMS the said claim was rejected.
6. Second claim was rejected on the basis of observation of the doctor who had treated the wife of the appellant made vide OPD card registration No. 97/84726 on 27-09-1997 who recorded under the column Presenting complaints - pain in the chest with deyspnoea 3-4 years and under column history had recorded has been having the above complaints for the last 3-4 years non-diabetic, hypertensive, history of severe chest pain four years back.
7. Let us assume that the appellant was having chest pain for the last 3-4 years through it was wrongly mentioned as it was 3-4 months, the fact remains that it was not such a disease which was required to be disclosed in the proposal form. Chest pain is not a disease. A person may be having pain but unless and until the patient is hospitalised, or diagnosed for the said disease or operated upon for the said disease these are normal disease of day to day wear and tear. We have taken a view in this regard in Appeal No.A-931/2005- National Insurance Co. Ltd. Vs. Sh. Sri Chand Jain decided on 04-05-2006 and arrived at the following conclusions:-
(i) 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.
8. On the aforesaid premise we allow the appeal at the outset, set aside the impugned order and direct the respondent to pay Rs. 29,500/- besides Rs. 10,000/- as compensation for mental agony and Rs. 5,000/- as cost of litigation.
9. Appeal is disposed of in aforesaid terms.
10. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
11. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
12. Announced on 9th November, 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj