State Consumer Disputes Redressal Commission
Pradeep Kumar Garg vs National Insurance Co. Ltd, on 1 August, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 01-08-2008 Appeal No. A-482/2005 (Arising from the order dated 06-06-2005 passed by District Forum (East), Saini Enclave, Delhi in complaint case No. 6/2005) Shri Pradeep Kumar Garg, -Appellant S/o Shri Keshu Ram Agarwal, 4/1, Rishi Apartments, Rajpur Road, Delhi-110054. Versus National Insurance Co. Ltd, -Respondent Through its Divisional Manager, Through D.O. XXVII, Mr. Brijesh Sharma, 11th Floor, North Tower Core-2, Advocate. Scope Minar, Laxmi Nagar District Centre, Delhi-110092. CORAM: Mr. Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Vide impugned order dated 6th June 2005 complaint of the appellant seeking reimbursement of the medical expenses incurred by the appellant for the treatment was dismissed on the ground that the appellant concealed the factum of pre-existing disease for which he had obtained treatment and got cured 10 years back.
2. Feeling aggrieved, the appellant has preferred this appeal.
3. Admittedly the appellants wife, Smt. Kanta Garg (beneficiary of policy) fell ill and she was admitted to Moolchand Hospital on 29-04-2004 and was discharged on 25-04-2004. He filed claim for reimbursement of amount. Respondent repudiated the claim on the ground of non-disclosure of pre-existing disease. He prayed for directions to respondent to pay a sum of Rs. 32,407/- to the appellant, interest, cost and compensation.
4. While justifying the rejection of the claim, respondent averred that the appellant was suffering from posthysterectomy which was consequential to hysterectomy done 10 years before and that the policy under dispute is first time policy and disease as that of appellant was excluded from the purview of policy for a period of one year.
5. The appellant filed the following documents to substantiate his version:-
(i) Copy of insurance note.
(ii) Copy of Insurance Policy.
(iii) Discharge slip.
(iv) Repudiation letter dt. 04-06-2004.
(v) Specimen of mediclaim policy.
(vi) Medical certificate from Dr. Shilla Mehra.
6. Complaint was dismissed merely on the premise of report of Dr. N.C. Singhal, a Doctor on the panel of respondent-Company opining that claimed disease is a consequence of Hysterectomy done 10 years back. Such ground is highly preposterous, farfetched and untenable in the eyes of law. Recently the Supreme Court has deprecated the practice of Insurance Companies for rejecting the claims in respect of mediclaim policies on the ground of pre-existing disease.
5. On the concept, meaning and impart of word disease, pre-existing disease in reference to medical insurance policies, we have drawn following 10 conclusions in highly extensive, dissective manner. These are as under:-
(i) Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi) Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(viii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix) For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
(x) Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
6. We have taken a view that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalised or undergone operation is not a pre-existing disease. If a person conceals the factum of his hospitalization of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.
7. In the result the appeal is allowed with the direction to the respondent to pay Rs. 32,407/- towards the expenses incurred by the appellant for treatment with additional compensation of Rs. 25,000/- for the mental agony, harassment, emotional suffering, physical and mental discomfort suffered by him.
Respondent shall also pay Rs. 5,000/- as cost of litigation.
8. Payment shall be made within one month from the date of receipt of this order.
9. FDR/Bank Guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.
10. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
11. Announced on 1st August, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj