State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Rajender Kumar Sharma on 23 April, 2007
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: 23.04.2007 Appeal No.07/89 (Arising from the order dated 26.12.2006 passed by District Forum(South-X) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.576/2005) United India Insurance Co. Ltd. .. Appellant. 2/27, Sarai Julena through Mr. A.K. De, Okhla Road, advocate. New Delhi. Versus Sh. Rajender Kumar Sharma Respondent 8/9, Kalkaji Extension, through Mr. K.R .Chawla, New Delhi. advocate. CORAM: Justice J.D. Kapoor, ... President Sh. Mahesh Chandra 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)
1. Counsel for the respondent has appeared on his own and has argued the matter therefore the appeal is being decided on merit.
2. The claim of the respondent amounting to Rs.1,94,699/- against the medi-claim insurance policy for a sum of Rs.3,00,000/-, was repudiated by invoking the exclusion clause that the respondent did not disclose about the pre-existing disease. Feeling aggrieved the respondent filed the instant complaint before District Forum.
3. While allowing the complaint and quashing the repudiation order, the District Forum has vide impugned order dated 26.12.2006 directed the appellant to pay Rs.1,94,699/- towards medical expenses incurred by the respondent and in addition to pay Rs.1,00,000/- as compensation towards mental agony, harassment and litigation charges .
4. Feeling aggrieved the appellant has preferred this appeal.
5. Since we have taken a view that unless and until a person is hospitalized or has undergone operation or admitted for the treatment for particular disease in the near proximity of obtaining the policy or say a year or two before it, he is not supposed to disclose about his day to day problems such as hyper tension, blood pressure, diabetes etc. as these are not such diseases for which he might have been hospitalized or undergone operation. On the concept and meaning of disease, pre-existing disease for the purpose of mediclaim insurance policy, our conclusions 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. Our experience shows that almost all the companies with dubious design to frustrate the claim of the insured indulge in repudiating each and every claim solely by invoking Exclusion clause.
7. However in the given facts and circumstance of the case, the limited grievance of the appellant is against the amount of Rs.1,00,000/- granted by the District Forum towards compensation over and above medical expenses incurred by the respondents. The grievance appears to be justified, as consumer is entitled for reasonable compensation and not a compensation, which makes him unjustly rich.
8. In our view the compensation of Rs.50,000/- over and above medical expenses incurred by the respondent would meet the ends of justice.
9. The appeal is partly allowed to the aforesaid extent.
10. The payment shall be made within one month from the date of receipt of this order.
11. A copy of this 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.
Announced today on 23rd day of April 2007.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member Tri