State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Bahadur Singh Son Of Harnam Singh on 28 April, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.450 of 2004
Date of institution: 23.04.2004
Date of decision : 28.04.2010
New India Assurance Company Limited through its Regional Manager, Sector 17-
A, Chandigarh.
.....Appellants
Versus
Bahadur Singh son of Harnam Singh r/o 841/1, Street No.2, Maradpura, Gill
Road, Miller Ganj, Ludhiana.
.....Respondent
First Appeal against the order dated 28.01.2004
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Present:-
For the appellant : Ms.Harsimrat Rai, Advocate for
Ms.V.A.Talwar, Advocate
For the respondent : Ex-parte
JUSTICE S.N.AGGARWAL, PRESIDENT
Bahadur Singh respondent had taken the mediclaim policy for himself and his family members from the appellants.
2. It was further pleaded that on 26.9.1995, said Bahadur Singh developed chest pain and breathlessness. He was admitted in Tagore Hospital, Ludhiana. The medical tests including TMT were conducted. It was found to be positive. The respondent was not satisfied with his medical treatment in Tagore Hospital. He got himself discharged on 2.10.1995. As per the diagnosis of that hospital, the respondent was suffering from Bronchitis.
3. It was further pleaded that after sometime, the respondent again suffered the chest pain. It radiated to left arm alongwith burning sensation and First Appeal No.450 of 2004 2 palpitations. He went to the DMC and Hospital, Ludhiana (in short "the DMC"). He was admitted in the Cardiology Unit of the DMC on 25.10.1995. He was discharged on 30.10.1995. The respondent also got himself examined medically from Dr.Naresh K. Sood on 10.11.1995 who advised the respondent to get himself checked from Escorts Heart Institute and Research Centre, New Delhi (in short "the Escort Hospital").
4. It was further pleaded that on 10.1.1996, the respondent visited Escort Hospital for medical check up. He was advised immediate surgery. The respondent arranged the funds and also informed the appellants on 13.1.1996. He underwent numerous medical tests. The operation of bye-pass surgery was performed on him on 30.1.1996.
5. It was further pleaded that the respondent had spent a sum of Rs.6,000/- in Tagore Hospital, Ludhiana, Rs.7000/- in DMC, Ludhiana and approximately Rs.3 lakhs in the Escort Hospital. In all, he spent a sum of Rs.3,13,000/- on his medical treatment. The insurance claim was lodged with the appellants. It was repudiated vide letter dated 30.7.1996. Alleging deficiency in service on the part of the appellants, the respondent filed a complaint against them in the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum") for medical reimbursement to the tune of Rs.3 lakhs. Compensation, costs and interest were also prayed.
6. The appellants filed the written statement. It was admitted that the respondent had taken the mediclaim insurance policy for himself and his family members. Parties are bound by the terms and conditions of the policy which was a contract in itself. It was admitted that the respondent had lodged the insurance claim with the appellants and it was repudiated by them.
7. It was denied if the respondent had suffered the chest pain and breathlessness on 26.9.1995 or if he was admitted in Tagore Hospital, Ludhiana or if he had got conducted TMT test or if it was found to be positive. It was also denied if the respondent was not satisfied with medical treatment of Tagore First Appeal No.450 of 2004 3 Hospital or if he got himself discharged on 2.10.1995 or if the disease was identified to be Bronchitis. The discharge summary of Tagore Hospital, Ludhiana has not been placed on the file by the respondent. It was denied if the respondent had suffered the chest pain which radiated to left arm alongwith burning sensation and palpitations or if he remained admitted in the DMC from 25.10.1995 to 30.10.1995 or if he had contacted Dr.N.K.Sood on 10.11.1995. It was also denied if the respondent had visited the Escort Hospital on 10.1.1996 or if he was admitted in that hospital on 13.1.1996.
8. It was pleaded that heart disease of the respondent was with effect from 13.4.1997. It was pre-existing. The respondent had suppressed this material fact while filling the proposal form. Therefore, the insurance claim was covered by the exclusionary clause 4 (4.2) of the terms and conditions of the insurance policy.
9. It was further pleaded that the claim was filed by the respondent after the expiry of 2 years. Therefore, it was barred by limitation. The jurisdiction of the learned District Forum, Ludhiana was also denied. It was also pleaded that the documents were submitted on 27.10.1997 after the expiry of more than one year from the date of repudiation on 30.7.1996. The repudiation was legal and valid. It was denied if the appellants had committed any deficiency in service or if the respondent was entitled to the mediclaim insurance. Dismissal of the complaint was prayed.
10. Bahadur Singh respondent filed his affidavit dated 4.3.1999. He also proved documents Ex.P1 to Ex.P8. On the other hand, the appellants filed the affidavit of Dr.Maheshwar Dutt, Sr.Divisional Manager dated 23.4.1999. The appellants also proved documents Ex.R1 to Ex.R14.
11. After considering the pleadings of the parties and the affidavits/documents produced on the file by them, the learned District Forum partly accepted the complaint vide order dated 13.6.1997. However, the respondent was given an opportunity to file fresh claim with regard to the medical expenditure incurred by the respondent in the Escort Hospital. First Appeal No.450 of 2004 4
12. This claim with regard to expenditure of Escort Hospital was accepted by the learned District Forum vide order dated 4.6.1999 and the appellants were directed to set up a penal of atleast 3 doctors for going through the record and recording a finding whether the disease of the respondent was pre- existing.
13. The respondent had filed an appeal (First Appeal No.1032 of 1999) which was accepted by this Court vide order dated 21.8.2002. The order dated 4.6.1999 was set aside and the case was remanded back to the learned District Forum for fresh decision in accordance with law after affording proper opportunity of being heard to the parties.
14. Bahadur Singh respondent filed fresh affidavit dated 30.4.2003 while the appellants had also filed the affidavit of Subhash Sachdeva dated 17.4.2003, affidavit of Dr.Nitin Malhotra dated 17.4.2003 and affidavit of Ashok Aggarwal, Senior Divisional Manager dated 17.4.2003. The appellants also proved documents Ex.RZ1 to Ex.RZ3. They also filed the affidavit of Dr.Arvind Bawa dated 17.4.2003. They also proved documents Ex.RX and Ex.RY and filed the affidavit of R.S.Ahluwalia, Investigator dated 30.4.2003.
15. After considering the pleadings of the parties and the affidavits/documents produced on the file by them, the learned District Forum accepted the complaint vide impugned order dated 28.01.2004 and directed the appellants to refund the amount of claim submitted by the respondent for getting the treatment from Escort Hospital in accordance with the terms and conditions of the mediclaim policy.
16. Hence, this appeal.
17. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 28.1.2004 be set aside.
18. Record has been perused. Submissions have been considered. First Appeal No.450 of 2004 5
19. Admittedly, the respondent had taken the mediclaim policy from the appellants for the period from 29.3.1995 to 28.3.1996. The respondent had lodged the claim under the mediclaim policy which was repudiated by the appellants.
20. It has been proved by the respondent that he was admitted in the Escort Hospital on 13.1.1996. He was operated on 30.1.1996 and he was discharged on 6.2.1996. The discharge summary given by the Escort Hospital has been placed on the file. The resume of the history of the medical problem of Bahadur Singh respondent was given as under : -
"RESUME OF HISTORY :
Mr.Singh is a 52 year old gentleman who is a normotensive, known diabetic, non smoker, case of coronary artery disease with pleasing personality. He had been having angina on exertion for the last 9 months which has been on an increase lately. There is history of myocardial infarction in the past (Sept. 95). He was advised further investigations. CART done on 16/12/95 revealed triple vessel disease with left ventricular dysfunction. LVEF 30: In view of his symptomatic status and CART findings he was advised surgery."
21. According to this history, the respondent had Angina on exertion about 9 months back.
22. If the period of 9 months is counted from 13.1.1996 when he was admitted in the Escort Hospital, it comes to 13.4.1995. The mediclaim policy was taken by the respondent on 29.3.1995 i.e. prior to the origin of angina disease. Similarly, he had the history of myocardial infarction since September, 1995. Therefore, neither Angina nor myocardial infarction was pre-existing from the date when the mediclaim policy was taken by Bahadur Singh respondent. First Appeal No.450 of 2004 6
23. The next submission of the learned counsel for the appellants was that as per the terms and conditions of the insurance policy, the appellants are not liable to compensate for the medical expenditure if it takes place within 30 days from taking of the insurance policy. In this case, the mediclaim policy was taken by the respondent on 29.3.1995 and he had developed Angina with effect from 13.4.1995 i.e. within 30 days when the mediclaim policy was taken by the respondent. Clause 4.2 reads as under : -
"4.2 Any disease other than stated in the Clause No.12 contracted by the insured person during the first 30 days from the commencement of the policy shall be excluded from the risk covered under the policy."
24. Hence, it was prayed that the respondent was not entitled to the insurance claim.
25. This submission has been considered.
26. It has no merits.
27. The terms and conditions were formulated by the appellants themselves unilaterally. It appears highly deplorable if the insurance company repudiated the insurance claim on the plea that the disease had visited the insured within 30 days of taking of the insurance policy. The disease is not in the hands of the insured nor the insured had any control over the disease which visited him. At the most, the insured can take the medical treatment for the disease which has come to him but the insured cannot be asked to explain as to why the disease had come to him within 30 days nor he can be denied the benefit of the mediclaim policy only on the ground that the disease had come to him within 30 days of taking of the mediclaim policy.
28. Since the respondent has paid the premium for the mediclaim policy taken by him for the period from 29.3.1995 to 28.3.1996, he is entitled to the medical reimbursement for the treatment he has taken during the entire period, to which, the mediclaim policy pertained. The appellants had taken the premium First Appeal No.450 of 2004 7 even for the first 30 days of the insurance policy i.e. from 29.3.1995 till 29.4.1995. Therefore, they cannot deny the benefits of the mediclaim policy which flow to the insured from it.
29. Moreover, the appellants have not proved if the terms and conditions including Clause 4 and 4.2 were a part of the insurance policy which was given by the appellants to the respondent nor it has been proved if this condition was duly signed by the respondent or if it was read over and explained to the respondent. Therefore, the appellants have no right to repudiate the insurance claim. Therefore, the respondent is entitled to the mediclaim benefits admissible under the policy.
30. In view of the discussions held above, there is no merit in the present appeal and the same is dismissed with costs of Rs.5000/-.
31. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 23.4.2004. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
32. Remaining amount shall be paid by the appellants to the respondent immediately.
33. The arguments in this appeal were heard on 23.04.2010 and the order was reserved. Now the order be communicated to the parties.
34. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (MRS.AMARPREET SHARMA) MEMBER April 28, 2010.
Paritosh