Patna High Court
Shahab Ahmad vs Senior Div.Manager,L.I.C.Of In on 3 July, 2013
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1185 of 2005
IN
Civil Writ Jurisdiction Case No. 4273 of 2003
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Shahab Ahmad son of S. K. Ahmad, resident of Mohalla Alalpatti, P.O. -D.M.
C.H., Police Station- Laheriasarai, District-Darbhanga.
.... .... Petitioner- Appellant.
Versus
1. Senior Divisional Manager, Life Insurance Corporation of India, Muzaffarpur
Division, Muzaffarpur.
2. Manager (Claims), Life Insurance Corporation of India, Divisional Office,
Muzaffarpur.
3. Branch Manager, Life Insurance Corporation of India, Darbhanga Branch-I,
Darbhanga.
4. Head of Department of Cardiothoracic and Vascular Surgery, A. I. I. M. S.
Ansari Nagar, New Delhi-110 029.
.... .... Respondents-Respondents.
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For the Appellant : Mr. Fakhruddin Ali Ahmad, Advocate with
M/s. Gautam Kumar Yadav and
Anjum Parween, Advocates.
For the Respondents :
Mr. Rajeev Ranjan Prasad, Advocate with
M/s. Rajendra Kumar &
Manoj Kumar, Advocates.
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PRESENT: HONOURABLE MR. JUSTICE S.N. HUSSAIN
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
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JUDGMENT
03 - 07-2013 This Letters Patent Appeal has been filed by the
writ petitioner-appellant challenging order dated 20.09.2005 by
which a learned Single Judge of this Court dismissed CWJC
No.4273 of 2003 which was filed by the writ petitioner for the
following reliefs:-
(i) For the issuance of a writ in the nature
of mandamus or any other appropriate
writ/ writs, order /orders, direction/
directions for quashing the official
Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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letter dated 11.1.2001 issued under the
signature of Manager Claim, Life
Insurance Corporation of India,
Division Office, Muzaffarpur.
(ii) For the issuance of a writ in the nature
of mandamus or any other appropriate
writ / writs, order / orders, direction/
directions, commanding the
respondents to pay 50% (fifty per cent)
of the sum assured to the petitioner
immediately as clearly mentioned in
Para II, b. J. of Akash Deep Policy of
Life Insurance Corporation of India.
(iii) For the issuance of a writ in the nature
of mandamus or any other appropriate
writ / writs, order / orders, direction/
directions commanding the respondents
to pay the interest on 50% of the sum
assured along with 50% of the sum
assured (i.e. Rs.1,50,000) to the
petitioner and other consequential
benefits to the petitioner for which he is
entitled.
(iv) Any other relief or reliefs to which the
petitioner is entitled under the facts and
circumstances of this case.
2. The impugned order was passed by the learned
Single Judge after arriving at the following findings:-
" 4. In my view, the contention is based
on a complete mis-interpretation of the clause,
and a mis-conception about the two kinds of
heart surgery that have come up for
consideration during the course of the present
proceedings. Whereas the aforesaid clause
covers a case of Open Heart By-Pass Surgery
which is due to narrowing of the Coronary
artery, the petitioner had undergone „Aortic
Valve Replacement‟ by an open heart
procedure. In other words, it is a case of valve
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replacement by Open Heart Surgery. This
position is borne out of the discharge
summary of respondent no.4 marked
Annexure-2 to the writ petition as well as the
affidavit sworn by Dr. P. Venugopal, the
Director of A.I.I.M.S., New Delhi. The
petitioner is overlooking the basic fact that all
cases of Open Heart Surgery are not covered
by the aforesaid clause. Cases of Open Heart
Coronary Artery by-Pass Surgery is alone
covered by the aforesaid clause. The clause
does not cover a case of valve replacement by
open heart surgery. I am convinced of the
position on a plain reading of the aforesaid
clause read with the discharge summary of the
A. I. I. M. S. (Annexure-2), the affidavit sworn
by Dr. P. Venugopal, Director of the
concerned Department of the A. I .I. M. S., as
well as the medical report dated 1.9.2005
(Annexure-A) of the Specialist Doctors of the
respondent Corporation."
3. According to the claim of the appellant, he
purchased Life Insurance Policy, namely 'Asha Deep Policy'
for the assured sum of Rs.1,50,000.00 vide policy no.
530523635 on 28.11.1993 which matured after 15 years on
28.11.2008. In the meantime, in the month of May, 1999 the petitioner suffered heart problem due to which the local doctor referred him to AIIMS, Delhi, where he underwent Open Heart By-Pass Surgery for Aortic Valve Replacement (AVR) on 01.07.1999.
4. Learned counsel for the appellant stated that Aortic Valve was obstructing flow of blood supply to his heart and hence after the required process of angiography, the Patna High Court LPA No.1185 of 2005 dt. 03-07-2013 -4- aforesaid operation was performed which restored regular blood supply to the petitioner's heart. This fact is fully supported by the affidavit sworn by the famous Cardiac Surgeon Dr. P. Venugopal, Director, AIIMS, Delhi who was respondent no.4 in the writ petition and had filed the said affidavit in that capacity only after the direction of the learned Single Judge vide order dated 04.05.2005.
5. Learned counsel for the appellant averred that the aforesaid operation was not done on the narrowed/occluded coronary arteries and hence it was not Coronary Artery By-Pass Graft (CABG), but nevertheless it was admittedly Open Heart By-Pass Surgery for replacement of Aortic Valve which forms part of the Coronary Artery and hence such surgery is not excluded from the Conditions & Privileges under the said Life Insurance Policy, especially Clause 11 (b) (i).
6. Learned counsel for the appellant argued that learned Single Judge has wrongly relied upon the opinion of Dr. B. P. Singh of Muzaffarpur dated 15.12.2000 (Annexure-B) as he was an interested person being the panel doctor of the Life Insurance Corporation and had baldly stated that Aortic Valve Replacement did not come under the benefits of Asha Deep Policy.
7. On the other hand learned counsel for the Patna High Court LPA No.1185 of 2005 dt. 03-07-2013 -5- respondents vehemently opposed the contentions of learned counsel for the appellant and stated that the impugned order of the learned Single Judge is a well considered judgment requiring no interference as clause 11(b) (i) of the Conditions & Privileges of the Asha Deep Policy has no ambiguity and it very clearly specified the type of Open Heart By-Pass surgery, namely, on narrowed/occluded coronary arteries to restore adequate blood supply to heart which is proved to be necessary after coronary angiography. Furthermore, the angiography of the petitioner having not proved any narrowness/occlusion in the coronary artery, the Open Heart By-Pass Surgery performed on the petitioner was not for the purpose prescribed in the said clause.
8. Learned counsel for the respondents submitted that other surgeries having been specifically excluded at the end of said clause, the AVR by Open Heart By-Pass Surgery cannot be assumed to be included therein and hence the Court cannot legally add any other type of surgery for the purpose of the said clause. Furthermore, in insurance matter every aspect is not covered and only on some aspect of ailments insurance is provided after obtaining specific data from researchers on various types of diseases. Hence what is not given in the contract cannot be given to the insured.
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9. Learned counsel for the respondents averred that Life Insurance Policy is not a welfare scheme of the Government, rather in view of the terms prescribed and premium to be paid it is merely a commercial transaction of the L. I. C. He further stated that mere interpretation or observation of a Court cannot create a contract. In this connection, he relied upon a decision of the Apex Court in case of Dresser Rand S. A. Versus Bindal Agro Chem. Ltd. & Anr. reported in (2006) 1 SCC 751.
10. Learned counsel for the respondents argued that Court cannot enlarge the scope of the term as has been held by the Apex Court in A. N. Roy, Commissioner of Police and another Versus Suresh Sham Singh reported in (2006) 5 SCC 745. He further argued that the evidence of the expert who had operated the petitioner was merely advisory in nature and did not provide definite evidence on the basis of which an order can be passed in favour of the petitioner. In this connection, he relied upon another decision of the Apex Court in case of Ramesh Chandra Agrawal Versus Regency Hospital Limited and others reported in (2009) 9 SCC 709.
11. Considering the averments made by learned counsel for the parties and the materials on record it is quite apparent that there is no dispute with respect to Asha Deep Patna High Court LPA No.1185 of 2005 dt. 03-07-2013 -7- Policy taken by the petitioner and the terms therein. There is also no dispute that the petitioner underwent Open Heart By- Pass Surgery for Aortic Valve Replacement after it was proved necessary by means of coronary angiography.
12. The crux of the dispute is the result of angiography and the nature of Open Heart By-Pass Surgery performed on the petitioner for which both the parties are relying upon Clause 11(b) of the Conditions & Privileges of the L. I. C. Policy of the petitioner. The said clause reads as follows:-
"11 (b) Benefit (B) of the Policy Schedule shall be available on the occurrence of any of the following contingencies.
(i) the Life Assured undergoes Open Heart By-Pass Surgery performed on significantly narrowed/occluded coronary arteries to restore adequate blood supply to heart and the surgery must have been proven to be necessary by means of coronary angiography. All other operations (e.g. angioplasty and Thrombolysis by Coronary Artery Catheterization) are specifically excluded.
OR
(ii) the Life Assured undergoes Renal
Dialysis or Renal Transplantation as a result of an end stage Renal Failure presented as chronic irreversible failure of the both Kidneys to function.
OR
(iii) the Life Assured suffers from Cancer (malignant). (That is, the presence of uncontrolled growth and spread of cancer cells which destroy the tissues in Patna High Court LPA No.1185 of 2005 dt. 03-07-2013 -8- which they arise with a potential for invading, adjacent structures and capable of spreading to distant organs).
This includes leukaemia, Hodgkin ‟s disease and invasive malignant melanoma of skin but excludes Carcinoma in situ, tumours associated with HIV infections, non-invasive localized cancers and all other skin cancers.
OR
(iv) the Life Assured suffers from paralytic stroke, (that is, cerebrovascular accident or incident producing neurological sequelae lasting more than 24 hours) resulting into complete and permanent disability of two or more limbs persisting for more than three months from the date of acute episode.
Specifically excluded are Transient Ischaemic Attacks and Storke like syndromes resulting from:-
(1) Head Injury (subdural or extradural haematoma) (2) Cerebral abscess.
(3) Pyogenic, tuberculosis, meningococcal meningitis.
(Note: Medical terms referred to hereinabove will bear the meaning as appearing in Butterworths Medical Dictionary- SECOND EDITION)
13. According to Butterworths Medical Dictionary (Second Edition) Aortic Valve (Valva Aortae) is explained as "A valve composed of three semilunar cusps, one anterior and two posterior [valvula semilunaris sinistra, dextra, et posterior (NA)], situated at the beginning of the artery. In the centre of each free border is a nodule [nodulus valvulae Patna High Court LPA No.1185 of 2005 dt. 03-07-2013 -9- semilunarium (NA)], on either side of which the thin similunar border is called the lunule."
14. Open Heart By-Pass surgery of narrowed/occluded coronary artery which is called Coronary Artery By-pass Graft (CABG) surgery, is one of the most commonly performed major operations and is advised for selected group of patients with significant narrowing and blockages of heart arteries not allowing sufficient flow of blood to deliver oxygen and nutrients to the heart muscle which is commonly called Coronary Artery Disease (CAD). On the other hand, Aortic Valve maintains one way flow through the heart and is located between the left ventricle (lower heart chamber) and the aorta which is the largest artery in the body. Aortic Valve Disease (AVD) occurs when the Aortic valve narrows down limiting or blocking the flow of blood to the heart occurring mainly due to deposit of calcium on the valve leaflets limiting their mobility.
15. In view of the aforesaid terms it is quite apparent that Aorta is the largest artery which contains valves to maintain one-way blood flow to the heart and hence Aortic valve is clearly part of the coronary artery for the purpose of pumping blood to the heart to provide oxygenated blood. Hence, the function and existence of coronary artery is not Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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complete without Aortic valves.
16. Clause 11(b) (i) of the Conditions & Privileges of the L. I. C. Asha Deep Policy provides four conditions which are as follows:-
(a) the insured undergoes Open Heart By-Pass Surgery;
(b) such surgery is performed on narrowed/occluded coronary arteries;
(c) it is for restoring adequate blood supply to the heart; and
(d) it must have been proven by means of coronary angiography.
17. It is not in dispute that petitioner had under gone Open Heart By-Pass Surgery and the said surgery was to restore adequate blood supply to petitioner's heart. These facts are not only supported by the affidavit of the famous doctor who had performed surgery upon the petitioner but are also proved by the admission of the respondents in the writ case. Hence, the first and the third conditions mentioned above are fulfilled by the petitioner.
18. The main dispute raised by the respondents is with respect to the second condition mentioned above namely the performance of surgery on narrowed/occluded coronary arteries. From the discussions made above it is quite apparent that Aorta is itself an artery and the Aortic Valve forms a part thereof and hence it cannot be legally and validly said that since Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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clause 11(b) (i) mentions only coronary arteries, it would not include Aortic valves especially when the blood supply to petitioner's heart was blocked/ hampered due to thickening of the Aortic Valve which had been proved by means of coronary angiography which found Open Heart Bypass Surgery for the said purpose to be necessary. Hence, the second and the fourth conditions of clause 11(b) (i) mentioned above have also been fulfilled in the case of the petitioner.
19. In the aforesaid clause all other operations, except Open Heart By-pass Surgery have been specifically excluded and the said exclusion significantly does not include AVR by way of Open Heart By-pass Surgery. The discharge summary of the AIIMS, New Delhi dated 07.07.1999 (Annexure-2) clearly shows under the head 'GRADIENTS- Report that the said claim of the petitioner is correct.
20. The reliance of learned counsel for the respondents upon the decision of the Apex Court in case of A. N. Roy, Commissioner of Policy and Anr. (supra) as well as in case of Dresser Rand S.A. (supra) are also not valid and proper as the former decision is with respect to enlargement of the scope of legislation or intention as the language of the aforesaid clause of the policy was plain and unambiguous and supports the claim of the appellant in view of the well defined Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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terms of the policy in present case, and the latter decision is with respect to a plain and simple contract with respect to purchase order and its interpretation, whereas the instant case is neither with respect to a typical contract, nor the Court is creating any contract or fresh term thereof, rather only the clear meaning of the existing term of the Insurance Policy is being clarified.
21. The respondents' reliance upon the decision of the Apex Court in case of Ramesh Chandra Agrawal (supra) is similarly frivolous and misconceived as there is no doubt that an expert is not a witness of fact and his evidence is merely of an advisory character only to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions. No doubt, the affidavit of the famous Heart Surgeon who had performed surgery upon the petitioner has merely furnished the necessary scientific criteria but the same is also supported by the definitions of the relevant terms in the authentic books, which apply to the facts of this case.
22. The Life Insurance Corporation is a State under Article 12 of the Constitution of India in which the State is a substantive stake holder. Hence Life Insurance Policy is a welfare scheme of Mediclaim and cannot be validly said to be a commercial policy or commercial venture of the Corporation or Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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the State. In this connection, reference may be made to a decision of the Apex Court in case of Central Inland Water Transport Corporation Limited and another Versus Brojo Nath Ganguly and another reported in AIR 1986 SC 1571.
23. A bench of this Court in case of Purnima Prasad and Ors. vs. The Oriental Insurance Company Limited and Ors. reported in 2006 (2) PLJR 659 has specifically explained the aims and objects of medical insurance in the following terms:-
"However, despite entry of private companies in the field, these Government companies cannot overlook the underlying object of their formation and the constitutional obligation to act in a fair and reasonable manner without arbitrariness, in providing cover to persons in the field of general insurance. It is the statutory duty of these Government Insurance Companies "to carry on general insurance business" and to so function under the Act "as to secure that general insurance business is developed to the best advantage of the community". After all, public health cannot be thrown to the mercy of any arbitrary freedom of private contracts, because the very nature of contracts involving health insurance is not a matter of mere private concern of two contracting parties, but operates in a public field where concerns of community interest have to be read in such transactions, in the regulatory field. The provisions of the Act of 1999 and the nature of regulation and control exercised thereunder show that the general insurance business is not left to the exclusive domain of a purely private contract of two individuals not involving any public interest. The constitutional and statutory provisions Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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regulate these insurance contracts and the interest of the community is kept paramount in consonance with the Directive Principles of State Policy. Quoting the observations of the 9th Five Year Plan of our country, the Gujarat High Court observed that health care schemes including Mediclaim are devised to ease the financial burden of the high costs of hospitalization on the low and middle income group population. This would enable such persons, who are covered by such health insurance schemes to avail of a better quality of medical services which otherwise might be out of the reach of such persons. The Mediclaim Scheme is therefore, not a subject of mere private concern of two contracting parties, but a result of national concern reflected in the norms of national health policy."
24. Another bench of this Court in case of Raju Vishwakarma Vs. Union of India & Ors. reported in 2004 (2) PLJR 392 while considering the Insurance Laws and repudiation of claim as well as interpretation of the terms therein allowed the claim of the insured after arriving at the following findings:-
"10. To my mind the whole difficulty in arriving at the proper meaning of the provision stems from reading it in the abstract and in an absolute sense. The provision can be meaningfully understood only in the context of the life and circumstances of the person assured. Any attempt at its interpretation in isolation and divorced from the life and circumstances of the person assured would only lead to misunderstanding and in may cases, such as the present one, would make the provision appear meaningless. On the other hand, if the definition of disability is read and understood Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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in the context of the life and circumstances of the person assured, its meaning becomes perfectly clear and every part falls into place."
25. The Apex Court in several decisions, including in case of Biman Krishna Bose Vs. United India Insurance Co. Ltd. and another reported in (2001) 6 SCC 477 and in case of United India Insurance Co. Ltd. Vs. Pushpalaya Printers reported in (2004) 3 SCC 694 has specifically laid down that such insurance is for the benefit of the society and as such is a welfare legislation. Thus, the respondents are not justified in treating such policies and their terms as pure and simple contract between two parties having divergent interest.
26. In the said circumstances and in view of the aforesaid settled principles of law as well as the clear terms provided in the Conditions and Privileges of the Insurance policy in question we are constrained to disagree with the findings arrived at by the learned Single Judge and dismissal of the writ petition bearing CWJC No.4273 of 2003 vide the impugned order dated 20.09.2005.
27. Accordingly, we allow this Letters Patent Appeal and also allow the claim of the writ petitioner-appellant. Hence letter dated 11.01.2001 (Annexure-1 to the writ petition) Patna High Court LPA No.1185 of 2005 dt. 03-07-2013
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issued by the Manager (Claims), Life Insurance Corporation of India, Division Office, Muzaffarpur is quashed and the respondents are directed to pay 50% of the sum assured to the petitioner immediately as mentioned in Asha Deep Policy of Life Insurance Corporation of India (Annexure-2 to the writ petition) and also pay the interest on 50% of the sum assured along with 50% of the sum assured, i.e. Rs.1,50,000.00 and other consequential benefits to the petitioner for which he is entitled as per the said policy. The entire amount must be paid to the petitioner within three months from the date of receipt/production of a copy of this order.
(S.N. Hussain, J) (Ahsanuddin Amanullah, J) A.F.R. Sunil/-