State Consumer Disputes Redressal Commission
Raj Kumar Aggarwal vs Niac on 16 November, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 475 of 2008
Date of institution: 15..05.2008
Date of decision : 16.11.2012
1. Raj Kumar Aggarwal son of Shri Ramesh Chand Aggarwal;
2. Varun son of Shri Raj Kumar Aggarwal;
3. Shilpa daughter of Shri Raj Kumar Aggarwal;
All residents of House NO.4791, Block No.23, Shivaji Nagar,
Ludhiana.
.....Appellants
Versus
1. The New India Assurance Co. Ltd., Registered and Head Office : New
India Assurance Building, 87, Mahatma Gandhi Road, Fort Mumbai
through its Chairman/General Manager.
2. The New India Assurance Co. Ltd., Divisional Office - I (360100)
Bharat Nagar Chowk, Ferozepur Road, Ludhiana through its Branch
Manager.
.....Respondents
First Appeal against the order dated 31.03.2008
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Argued by:-
For the appellants : Sh.A.K.Garg, Adv. for
Sh.Jashanjot Singh, Advocate
For the respondents : Sh.V.R.Sarup, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 31.3.2008 passed by the learned District Consumer Disputes Redressal First Appeal No.475 of 2008 2 Forum, Ludhiana (in short the District Forum) vide which the complaint was dismissed.
2. The complainant purchased the mediclaim insurance policy in respect of Smt. Archana Aggarwal from the OP- respondents valid from 31.12.2005 to 31.12.2006 for a sum of Rs.1 lac. She was not suffering from any disease, at that time. However, after sometime, she was admitted in the PGI, Chandigarh on 15.1.2006 with problem of Hypertension and bronchial asthma on which a sum of Rs.72,427/- were spent. She was discharged on 26.1.2006. She was again admitted in the hospital for the treatment of the above ailment and was discharged on 18.2.2006. She ultimately expired on 24.4.2006. The husband of the complainant submitted the claim to the OPs and provided all the relevant documents as and when required but they refused to pay the claim on the ground that it was a pre-existing disease. The complainant, therefore, filed the present complaint to direct the OPs to release the claim amount of Rs.1,32,848/- and also pay him compensation for mental tension, harassment and agony and litigation expenses.
3. The complaint was contested by the OPs admitting the sale of the healthcare mediclaim insurance policy to the complainant but alleging that complicated and complex questions of law and facts are involved in the complaint which cannot be decided in these summary proceedings. It was alleged that the complainant concealed the fact that she was suffering from hypertension since one year prior to the date of the policy and in view of the Exclusion Clause 4.1, it being pre-existing disease, no payment of compensation for treatment is payable. It was First Appeal No.475 of 2008 3 contended that the claim filed by the appellant has been rightly repudiated.
4. Both the parties produced evidence in support of their contentions.
5. After hearing arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 31.3.2008 dismissed the complaint on the ground that the complainant was suffering from a pre-existing disease for one year prior to the purchase of the policy and, therefore, in view of Clause 4.1 of the insurance policy, the OPs are not liable to pay the expenses. The complainant has challenged the same through the present appeal.
6. We have heard arguments of the learned counsel for the parties and have perused the record.
7. The learned counsel for the appellant referred to Ex.C1 which is the policy of insurance commencing on 31.12.2005 to 30.12.2006. According to him, prior to the commencement of the policy, the insured was suffering from acute bronchial asthma and was admitted in Christian Medical College, Ludhiana which issued the certificate Ex.C2 showing that she was admitted in the said hospital on 11.12.2005. The learned counsel for the appellant then referred to Clause 4.1 of the insurance policy, according to which, all diseases/injuries which are pre-existing when the cover incepts for the first time are not payable by the OP. In this manner, the learned counsel argued that the treatment for which the insured was admitted in the hospital, subsequently, was a pre-existing disease and, therefore, they are not liable to pay for the expenses. We do not find any merit in this argument.
First Appeal No.475 of 2008 4
8. It is not disputed that earlier also, the insured had taken the policy of insurance from the OP regarding which the compensation had earlier been paid to him. Ex.C1 shows that previously, the complainant was having policy for the period from 31.12.2004 to 30.12.2005 and, thereafter, as per Ex.C32 and Ex.C33, he got the policy from 31.12.2005 to 30.12.2006. Ex.C1 itself shows that the proposal form and the declaration was submitted by the complainant on 31.12.2001 for obtaining the mediclaim policy. In this manner, the policy had been a continuous one since 31.12.2001 and no evidence has been led by the appellant to prove that the complainant was suffering from any such disease prior to the said date.
9. The learned counsel for the appellant then referred to Ex.C39 vide which the claim submitted by the complainant was repudiated on the ground that as per the past history, she was known case of bronchial asthma since 15 years, there was a history of hypertension since 3 months but it was diagnosed in 2003 when she was admitted on 4.9.2003 in the CMC and on its basis also, the complainant had pre-existing disease which she did not mention while obtaining the policy and otherwise, in view of Clause 4.1, the expenses incurred on the treatment of the pre-existing disease was not payable. This argument is also devoid of merit. In such circumstances, the mere production of past history which itself is vague regarding time since when the disease existed is of no beneficial value to prove that the disease existed when the policy was purchased by the complainant.
10. In this respect, we may refer to a decision of this Commission in the case Life Insurance Corporation of India v. First Appeal No.475 of 2008 5 Charanjit Kaur, I (2001) CPJ 53. In that case also, as in the present case, no evidence was produced by the OP that the deceased had taken any treatment from any doctor for the alleged disease prior to the policy. There was no evidence to hold that the insured knowingly and fraudulently concealed the material facts regarding the alleged disease. The findings recorded by this Commission in Life Insurance Corporation of India v. Charanjit Kaur's case (supra) that only history sheet is not sufficient to hold that the deceased was suffering from the disease was upheld by the Hon'ble National Commission in Revision Petition No.3653 of 2006 (Life Insurance Corporation of India v. Charanjit Kaur) decided on 14.10.2011. In that case also, as in the present case, it was not mentioned whether the patient himself gave history to the doctor at the time of his admission regarding his ailment or whether the history was given by anyone else. Even the signatures of the patient or any of his relative were not obtained by the doctor. It, therefore, cannot be said that the life assured concealed any fact from the OP-appellants while obtaining the policy of insurance.
11. We may also refer to the case "Life Insurance Corporation of India v. Dr.P.S.Aggarwal, I (2005) CPJ 41 (NC)"
and "LIC of India v. Joginder Kaur and others II (2005) CPJ 78 (NC)" in the latter case also, the OP tried to prove concealment of disease on the basis of the past history recorded by the doctor. The Hon'ble National Commission in para 11 held as follows : -
"11. No affidavit of any doctor who had treated him earlier was produced nor any other material piece of evidence had been produced to support the contention of the First Appeal No.475 of 2008 6 petitioner except opinions and inferences based on surmises. Even the investigation report has not been produced though the matter was not investigated. It is contended that record of Dayanand Medical Hospital wherefrom the deceased got the treatment and O.P.NO.1 had collected death certificate, etc. has allegedly proved that the deceased was admitted on 16.8.1998 in Dayanand Medical Hospital. In this light, in absence of any evidence except filing the proposal form, etc. in the face of affidavits of Surinder Kaur, Inderjeet Kaur and Swaran Singh it is not possible to hold that the deceased was alcoholic. He got study award in his education. Simple allegations made by the petitioner that the deceased was alcoholic; was suffering from diabetes mellitus, and jaundice, etc. would not be sufficient. The unproved case history recorded by some person on the date of admission of Sh.Bachan Singh, the deceased, would not be cogent and convincing evidence to repudiate the claim unless it was coupled with medical report for the treatment prior to submission of the proposal form."First Appeal No.475 of 2008 7
12. In view of the above discussion, we are of the opinion that the complaint is liable to be allowed but has been wrongly dismissed. The appeal is, accordingly, allowed with costs and consequently, the complaint is allowed. The OP is directed to pay a sum of Rs.1 lac towards the expenditure spent on the medical treatment of M/s Archana Aggarwal against the mediclaim insurance policy obtained by him. The litigation costs are assessed at Rs.5000/-. Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER November 16, 2012.
Paritosh