National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Asim J. Pandya on 20 December, 2005
Equivalent citations: I(2006)CPJ115(NC)
ORDER
Rajyalakshmi Rao, Member
1. This Revision Petition is file by the Oriental Insurance Company against the order dated 9.9.2004 in Appeal No. 154/2004 by State Commission, Gujarat allowing the appeal of the complainant/ respondent, Asim J. Pandya directing the petitioner to pay Rs. 69,287.56 with 6% interest p.a. from 20.11.2001 till the date of payment. Brief facts of the case are:
2. The respondent, Mr. Asim J. Pandya is a lawyer and he along with his family members including daughter Ms. Shaiva originally insured under the Mediclaim Scheme with Winner Capital and Credit Pvt. Ltd. in 1998. The said company closed its business and hence the complainant/respondent switched over to the petitioner's company for Mediclaim Insurance from the year 1999. The said insurance covers the full hospitalization risk of himself and his spouse and risk at the half rate for the respondent's daughter under Policy No. 48/ 2302/2001. His daughter Shaiva was operated upon at Hinduja Hospital on 23.10.2001 and a claim was preferred for the reimbursement of the medical expenses under the policy. The petitioner declined the same vide letter dated 3.1.2002 on the grounds that the insurance policy in question was taken from 21.3.1998 and that the said disease was already existing at the time of taking the insurance and since pre-existing disease is excluded from the scope of the policy as per the Exclusion Clause 4.1 and also Clause 4.8 of Mediclaim prospects/policy that all congenital external diseases and defects are excluded from the scope of the policy.
3. Respondent filed a complaint in the District Forum with a claim of Rs. 69,287.56 with 12% interest p.a. from 20.11.2001 till the date of payment. District Forum vide order dated 17.2.2004 held that the insurance claim was rightly rejected on the ground of pre-existing disease and relying on Exclusion Clauses 4.1 and 4.8 of the policy. The State Commission set aside the order of the District Forum and allowed the appeal on the ground that the said Clauses 4.1 and 4.8 are not applicable in the present case.
4. The revision petitioner relied on the Exclusion Clauses of the Mediclaim prospects/ policy which are reproduced hereunder:
Clause 4.0, Exclusion The company shall not be liable to make any payment in respect of any expenses whatever incurred by any insured person in connection or in respect. Clause 4.1 All diseases which are pre-existing when the policy incepts for the first time. Clause 4.8 Convalescence, General debility, "Run down" condition or rest cure, congenital external diseases or defects or anomalies, sterility, venereal diseases, intentional self-injury and uses of intoxicating drug.
5. The respondent argues on three counts: firstly, he was not supplied with the terms and conditions of these Exclusion Clauses, etc. of the Mediclaim Policy by the petitioner and that the petitioner is unable to show any materials to deny this aspect of communication. Secondly, that his daughter had a fall when she was six months old and it is only in 1995 when an x-ray was taken with the report of 14.8.1995 of Dr. Bhaumik Jani mentions medical term," Hemi-vertebra with extra (13) rib." This report does not state that Hemi-vertebra may cause some problem in future and that the patient must approach the Spinal Specialist to avoid any future problem. This report does not mention that this is a disease, defect, deformity or anomaly. Further, the existence of Hemi-vertebra does not necessarily lead to the formation of Scoliosis.
6. It is contended by the respondent that the word "Scoliosis" has appeared for the first time in the report dated 10.6.2000 of Dr. J.P. Pandit which makes it amply clear that the disease/defect or anomaly "Scoliosis" was not pre-existing. In view of the above, it is argued that Clause 4.1 is not applicable as it is not a pre-existing disease.
7. Thirdly, it is argued that Clause 4.8 is also not applicable in the present case as it is not a congenital or external disease that this child was suffering from. No external symptoms of deformity or defect were noticed by anyone in respect of the patient as the child has been normal since birth. Her Sonography report never showed any deformity, defective or anomaly. We hold that if there is any indication of congenital deformity which is known to the respondent he would not wait till the year 2001 to get her operated.
8. The Revision Petitioner relied on these clauses and repudiated the claim. There was no submission by the learned Counsel for the petitioner to counter the decision rendered by the State Commission. It is clear that it is not a congenital disorder which was present since birth from the case history. We have no doubt that the child progress over the growing years has resulted in a deformity in her vertebra which was neither congenital nor pre-existing disease.
9. In view of the above, we find that there is no reason for us to interfere with the order of the State Commission. Hence, it is dismissed.