State Consumer Disputes Redressal Commission
M/S. New India Assurance Co. Ltd., East ... vs C.N. Mohan Raj No.96/329-A, Ttk Road ... on 8 February, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) F.A.NO.860/2010 (Against order in C.C.NO.17/2007 on the file of the DCDRF, Chennai (South) DATED THIS THE 8th DAY OF FEBRUARY 2012 M/s. New India Assurance Co. Ltd., East Coast Chambers (Unit-710500, 1st Floor) No,92, G.N. Chetty Road T. Nagar, Chennai- 600 017 Appellant/Opposite party Vs. C.N. Mohan Raj No.96/329-A, TTK Road Extn Royapettah, Chennai-600 014 Respondent/Complainant The Respondent as Complainant filed a complaint before the District Forum against the opposite party, praying for a direction to pay a sum of RS.2,71,000/- towards medical expenses, alongwith compensation of Rs.100000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.13.5.2010 in CC.No.17/2007. This petition coming before us for hearing finally on 27.1.2012. Upon hearing the arguments of the counsel on both sides, perusing the material papers on record, lower court records, as well as the order passed by the District Forum, this commission made the following order: Counsel for the Appellant/opposite party: M/s. M.B,.Gopalan Counsel for the Respondents/Complainant: M/s. Sampathkumar Associates M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The complainant / respondent, who had taken hospitalization and domiciliary hospitalization benefit policy, has undergone bye-pass heart surgery, incurring a expense of Rs.2,71,000/-, approached the opposite party for reimbursement, repudiated on the ground of pre-existing disease, which is branded by him as deficiency in service, and on these grounds, a consumer complaint was filed, for the recovery of a sum of Rs.271000/-, towards medical expenses, and Rs.1 lakh towards compensation.
3. The opposite party/ appellant, not challenging the mediclaim policy, justified their repudiation, since the complainant had suppressed the material facts, at the time of giving proposal, as well as he had taken treatment for pre-existing disease, which are not covered under the policy, and therefore the non-settlement of the claim, will not come within the meaning of deficiency in service.
4. The District Forum, ignoring the defense, though it is supported by documents, not properly analyzing, whether the parties have discharged their burden of proof, fixing deficiency upon the opposite party, directed to pay a sum of Rs.1,50,000/- under the heading medical expenses, another sum of Rs.10000/- as compensation, for mental agony with cost of Rs.5000/-, as per order dt.13.5.2010, which is impugned in this appeal.
5. The only point urged by the learned counsel for the appellant before us was, that the insured/complainant, not only suppressed the material facts, which he bound to disclose, but also had taken treatment for pre-existing disease, which is proved not appreciated by the District Forum, thereby warranting unavoidable interference by this commission, which is opposed, as if there was no suppression of material facts, or pre-existing disease.
6. It is an undisputed fact, that the complainant had taken mediclaim policy with the opposite party, from 14.10.2004, renewed the same upto 13.10.2006, not only for him, but also his family members, and the sum assured for the complainant was Rs.150000/-. During the currency of the policy, for heart problem, he was admitted originally, in Harvey Healthcare Hospital Ltd., then admitted in M/s. Madras Medical Mission Hospital, where he had undertaken the bye-pass heart surgery on 12.1.2006, discharged on 25.1.2006. For the above said treatment, he had incurred a total expenses of RS.2,71,000/-.
Neither the quantum, nor the treatment taken is under dispute. When the complainant lodged a claim, for the medical expenses, based upon the policy, it was repudiated, which was challenged before the Ombudsman, unsuccessful, resulting the consumer complaint as said above.
7. As rightly urged by the learned counsel for the respondent/ complainant, because of the admitted policy, the burden is upon the opposite party to prove that the complainant had suppressed the material facts, as well as had pre-existing disease, for which alone, the complainant had taken treatment which excluded. If that is proved, to our satisfaction, then the repudiation cannot be branded as deficiency in service, proceeded by negligence, since law is well settled, a person who had suppressed the material facts, violated the terms of the contract, thereby resulting the contract itself void, and such a person is not entitled to claim reimbursement, if he had taken treatment for pre-existing disease.
8. The learned counsel for the respondent/ complainant also drew our attention, to number of decisions of the state commissions, to prove the above aspect, as well as to prove the treatment taken by the complainant is, outside the purview of pre-existing disease. We have gone through all the decisions very carefully, which need not be repeated here, and those rulings are not applicable in view of the facts, we are going to give below, based upon records, which is supported by the Apex Court ruling, being the latest one.
9. Ex.B1 is the proposal for mediclaim insurance, signed by the complainant, which mandates certain disclosures by the insured person, and one of the query is Have you ever suffered from diabetes, hypertension chest pain or coronary insufficiency or myocardial infarction?. For this the complainant said No, thereby making the insurance company to believe that he is not a diabetic/ hypertensive patient, or had any problem, of chest pain, coronary disease, or myocardial infarction. Though, as indicated in the proposal forum, ECG, blood test was taken, reports are not made available, as if that had not disclosed that the complainant, is non-diabetic, and had no problem of heart disease. We do not find any certificate in the proposal, as urged by the learned counsel for the respondent/complainant, that a competent doctor tested the complainant, certified as if he had no pre-existing disease, on the basis of the blood test, ECG taken, as disclosed in the proposal, we cannot rule out the pre-existing disease, or the suppression of material facts, if otherwise made out.
10. Admittedly, the complainant was originally admitted in Harvey Hospital for treatment, where the disease was diagnosed as (1) unstable angina (2)Severe Three Vessel Coronary Artery Disease, (3) Old Anteroseptal Myocardial Infarction (4) Systemic Hypertension (5) Diabetes Mellitus, and he was advised to undergo high risk of Coronary Artery Bye-pass Grafting, at the earliest. Apprehending safety, he got discharged himself from Harvey Hospital, admitted in M/s. Madras Medical Mission Hospital on 9.1.2006, where his problem was diagnosed as Coronary Artery Disease, Triple Vessel Disease, Significant left main disease, and Severe LV Dysfunction. Under the past history, it is said smoker (period 5 years), known case of diabetic mellitus X 20 years on OHA. Known case of systemic HTN X10 years on treatment. Known case of allergic bronchitis (+), history of IHD X 10 years on Isodensil, recently on Ecosprin and clopilet since one year. No major hositalisation/surgeon. The above report given by Harvey hospital and Madras Medical Mission Hospital are not under challenge, and it cannot be challenged also, since the complainant had taken treatment.
11. The discharge summary, makes it abundantly clear, without any shade of doubt, that the complainant was a known case of diabetic mellitus for 20 years, and known case of systemic HTN for 10 years on treatment, having history if ischemic heart disease for 10 years, for which he was also taken treatment.
Therefore, it cannot be the case of the complainant, that he had no knowledge about his disease, and it should be presumed, based upon the discharge summary, that the complainant was suffering from diabetes mellitus, heart problem, etc, for the past more than 10 years. This being the proved position, he ought to have disclosed the disease, for which he was taken treatment normally, in the Insured Personal Details, which is attached with proposal form. On the other hand, as said above, he had given a false statement, as if he was not suffering from diabetes or chest pain or coronary problem. Thus, the opposite parties have proved undoubtedly, that even on the date of taking the policy, in the year 2004, he had all possible problems, affecting the heart, as well as body, especially diabetic, which he had suppressed, and that should be construed as suppression of material facts. For the disease, which the complainant had suppressed, admittedly he had taken treatment, for which alone, he had incurred expenses, whatever may be the amount. The insurance company, when a claim was lodged, collected the above documents, and justifiably, legally repudiated the claim, which was unsuccessfully challenged before the Ombudsman also, and in those findings, or conclusion, there may not be any fault, warranting to fix deficiency, which is supported by a decision of the Apex Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., reported in IV (2009) CPJ 8 (SC).
12. The case involved in the above decision also, relates to mediclaim policy, wherein a defense was taken, suppression of material facts, including the basic principle for insurance viz. uparimae fede. In that case, the patient, who was on regular dialysis, failed to disclose the information in the proposed form, regarding the health condition, and similarly in our case also, the complainant has failed to disclose the pre state of health, though he was a known diabetic and heart patient. The Apex court, giving the meaning for material facts, to whom it is relevant also, has come to the conclusion, if a person had suppressed the material facts, had taken a policy, then he is not entitled to the benefits conferred under the policy, that too in our case for taking treatment for pre-existing disease, which is excluded under the exclusion clause. The District Forum, unfortunately not reading the documents properly, simply brushing aside the arguments of the opposite party did not hold good, has come to a erroneous conclusion, that the bye-pass heart surgery will not lead to presumption, that the same was pre-existing, forgetting the diagnosis made by the doctor, including diabetes mellitus, and other heart oriented disease. Therefore, we are of the view, the order of the District Forum is highly erroneous, should be upset by allowing this appeal.
13. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.17/2007 dt.13.5.2010, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit receipt, made by way of mandatory deposit to the appellant duly discharged.
A.K. ANNAMALAI M. THANIKACHALAM JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Bank