State Consumer Disputes Redressal Commission
The Oriental Ins.Co.Ltd. vs Smt.Shobha Devi on 6 January, 2010
Appeal No.612/06 The oriental Insurance Co.Ltd. V. Smt.Shobha Devi Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member
Smt.Manju Jain,counsel for the appellant Shri Rajesh Mootha,counsel for the respondent Date of Judgement: 06.01.2010 BY THE STATE COMMISSION This appeal has been filed by the appellant insurance company against the order dated 15.2.06 passed by the District Forum,Sirohi in complaint case no.9/05,by which the complaint of the complainant respondent was allowed against the apppellant insurance company in the manner that the appellant insurance company was directed to pay a sum of Rs.11062.60 to the complainant respondent with interest @ 9 % p.a wef 5.2.05 and further to pay Rs.500/- as amount of cost of litigation and further Rs.2000/- as amount of compensation for mental agony and in case the above amount was not paid within one month the rate of interest charged would be 12% p.a in place of 9% p.a.
2. It arises in the following circumstances:
That the complainant respondent had filed a complaint 2 against the appellant insurance company before the District Forum,Sirohi on 5.2.05 interalia stating that she and her husband Ram Narain and her children had taken a medicalim policy from the appellant insurance company for the period 27.9.03 to 26.9.04 and the sum insured was Rs.50,000/- through annex.1. It was further stated in the complaint that on 5.8.04 the complainant respondent had felt pain in her stomach and thereafter she had consulted the Dr. Desai's Gujarat Hospital and Lithotripsy Center at Sirohi and sonography was got done on 5.8.04 in that hospital and as per that report multiple stones were found in the gall blader.
It was further stated in the complaint that thereafter she was got admitted in that hospital on 6.8.04 and operation was got done on 6.8.04 and she was discharged from the hospital on 7.8.04 and in getting the treatment in hospital,she had incurred a sum of Rs.11062.60 and for that a claim was preferred,but the claim was repudiated by the appellant insurance company through letter dated 10.12.04 interalia stating on the ground that as per exclusion clause 2.1(14) and as per the bed head ticket of the hospital she was having that problem for the last two years,therefore,the present case was a case of pre-existing disease and as per the terms and conditions of the policy,the claim was not payable. Thereafter the present complaint was filed.
A reply was filed by the appellant insurance company before the District Forum,Sirohi on 2.5.05 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 10.12.04 and it was prayed that the claim was rightly repudiated and complaint be dismissed.
3The District Forum after hearing both the parties,through the impugned order dated 15.2.2006 had allowed the complaint as stated above, interalia holding that in absence of any record of any hospital prior of taking the policy,it could not be said that the present case was a case of suppression of material facts regarding disease on the part of the complainant respondent and the repudiation of the claim was not found justified.
3. Aggrieved from that order,this appeal has been filed by the appellant insurance company.
4. In this appeal,the main contention of the learned counsel for the appellant insurance company is that since as per the bed head ticket of Dr. Desai's Gujarat Hospital and Lithotripsy Center, Sirohi in which it was mentioned that she was a patient of stones for the last two years,therefore,the present case on that basis should have been treated as a case of pre-existing disease which was suppressed by the complainant respondent and thus the findings recorded by the District Forum by which the complaint was allowed are erroneous one and thus the impugned order suffers from basic infirmity and illegality and the same be quashed and set aside and appeal be allowed.
5. On the other hand,the learned counsel for the respondent has supported the impugned order.
6. We have heard the learned counsel for the parties and perused the record.
7. There is no dispute on the point that the complainant respondent had taken a mediclaim policy for the period 27.9.03 to 26.9.04 for a sum of Rs.50,000/-.
48. There is also no dispute on the point that on 5.8.04 when she felt pain in her stomach she consulted the Dr. Desai's Gujarat Hospital and Lithotripsy Center at Sirohi where sonography was advised and as per the sonography report dated 5.8.04 stone in gall blader was found.
9. There is also no dispute on the point that thereafter on 6.8.04 she was admitted in that hospital and operation was done and in getting the treatment she had spent a sum of Rs.11,062.60.
10. There is also no dispute on the point that thereafter a claim was preferred by the complainant respondent with the office of the appellant insurance company and the claim was repudiated by the appellant insurance company on the grounds mentioned above.
11. In the facts and circumstances just narrated above,the question for consideration is whether the findings recorded by the District Forum by which the complaint was allowed could be sustained or not; and whether the repudiation of the claim by the appellant insurance company could be justified or not;
12. In this case,it may be stated here that the policy in question had come into force wef 27.9.03 and there is nothing on record to prove the fact that prior to 27.9.03 the complainant respondent had taken any treatment for pain in the stomach from any hospital.
13. No doubt,in the bed head ticket it was mentioned that she was having this problem for the last two years.
14. The question for consideration is whether on that basis the 5 claim could be repudiated on the ground of pre-existing disease or not.
Meaning of Pre-existing disease.
15. Pre-existing disease is one for which the insured should have undergone hospitalisation or undergone long treatment or operation. Otherwise,for laymen these day to day normal problems are not to be disclosed as even otherwise medical terminology of such problems is difficult to understand and know.
16. Merely because some positive science in respect of so called disease are noticed later on,but for that; that disease could not be treated as pre-existing disease.
17. It may be stated here that a person might be suffering from a disease but he may not take care to that and go to a doctor. Quite often a person,who might be having some problem with any part of the body may not be knowing about it and may not go to a doctor. The question always,which has to be determine,is,was the pre-existing disease to the knowledge of the insured. That knowledge could be attributed if the person takes some or the other treatment from a doctor/hospital and on point of pre-existing disease the law laid down by this Commission in the case of New India Assurance Co.Ltd. Vs.Vishwanath Manglunia ( (2006) 3 CPJ 68) may be referred to.
18. Keeping the above legal position and definitions in mind,the facts of the present case are being examined.
19. Since in this case the complainant respondent had felt pain 6 in her stomach on 5.8.04 for the first time and further in the sonography report stones were found in the gall blader and she was admitted in Dr. Desai's Gujarat Hospital and Lithotripsy Center, Sirohi on 6.8.04 and operation was got done on the same day and,therefore,to say that she was having a knowledge of the stones in her gall blader prior of taking the policy, could not be found established because of the simple reason that there is nothing on record to show that before taking the policy on 27.9.03 she had the knowledge of the fact that she was having stones in her gall blader.
20. When this being the position,it could not be said that the complainant respondent was guilty of suppression of material facts about her health.
21. No doubt,in the bed head ticket it was mentioned that the complainant was having the problem two years before,but to prove that entry,no documentary proof or evidence or material has been produced by the appellant insurance company showing that the complainant respondent had earlier taken the treatment of stones in any hospital or from any doctor.
22. Thus the appellant insurance company had misrably failed to produce any document or paper to show that the complainant respondent was having the knowledge of stones prior of taking the policy.
23. When this being the position,merely because of some entries made in the bed head ticket it could not be said that the disease of stones in gall blader was a pre-existing disease.
24. For the reasons as stated above,the repudiation of the claim 7 of the complainant respondent was not justified and the repudiation has been made on the basis of wrong assumption and in an arbitrary manner and it amounted to deficiency in service on the part of the appellant insurance company and the findings recorded by the District Forum are liable to be confirmed one as they are based on correct appreciation of entire material available on record and we do not see any illegality in the impugned order and the appeal deserves to be dismissed.
25. On point of interest it may be stated here that the rate of interest charged would be @ 9% p.a throughout in place of 12% p.a and to that extent,the impugned order dated 15.2.2006 passed by the District Forum,Sirohi deserves to be modified.
26. Accordingly,this appeal filed by the appellant insurance company is dismissed. However the interest charged would be @ 9% p.a throughout in place of 12% p.a and to that extent,on point of interest the impugned order dated 15.2.2006 passed by the District Forum,Sirohi is modified.
Member President