State Consumer Disputes Redressal Commission
Baby Simran Kaur vs The Oriental Insurance Co. Ltd on 9 August, 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: 09-08-2007 Appeal No. A-476/2003 (Arising from the order dated 24-03-2003 passed by District Forum(Central), ISBT, Kashmere Gate, Delhi in Complaint Case No.931/2001) Baby Simran Kaur Appellant D/o Sh. Nirmal Jeet singh, Through R/o 77-A, Opposite Mental Hospital Mr. U.K. Malik, Dilshad Garden, Advocate. Delhi-110095. Through her father/next friend Shri Nirmal Jeet Singh. Versus The Oriental Insurance Co. Ltd., Respondent Through its General Manager, Regd. Office, Oriental House, A-25/27, Asaf Ali Road, New Delhi. CORAM : 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) Appellant is a minor. She filed the instant complaint through her father for reimbursement of the expenses incurred on her treatment availed against mediclaim policy obtained in her favour and other members of the family. During the subsistence of the said policy, complainant Simran Kaur complained of some problem when she returned from the school. She was taken to the nursing home and medical center and Apollo Hospital where several tests were conducted. She was admitted in the hospital on 10-09-1999 for operation of Lumber Spine. A total amount of Rs. 1,46,520/- was spent on the treatment and a claim was lodged with the respondent for reimbursement of the said amount but the respondent vide letter dated 03-03-2000 repudiated the claim on the ground that since the appellant was operated because of congenital internal defect, which was a pre-existing disease the disclosure about which was not made in the policy, the claim was not payable. Appellant protested against the rejection of the claim by producing opinion of Dr. Rajinder Prasad, Surgeon, Apollo Hospital that the disease for which the appellant was operated upon was not congenital. In spite of this respondent chose to renew the policy for the next year without settling her claim. Consequently the appellant filed the instant complaint before the District Forum for reimbursement of the medical expenses incurred upon her.
2. However, the complaint was dismissed by the District Forum vide order dated 25-03-2003 on the strength of the affidavit of Dr. Pran Nath, a doctor on the panel of the respondent-Insurance Company that the observation made in the record of the Apollo Hospital that the appellant was suffering from enuresis since birth (maximum since year) and was having swelling lower back since birth and was suffering from fever off and on and dribbling inconvenience.
3. Feeling aggrieved, the appellant has preferred this appeal.
4. Admittedly there is no material on record to show that the appellant had ever been hospitalized for the disease in question or was ever operated upon for the disease in the near proximity of obtaining the insurance policy or even a year or two before obtaining the policy.
Unless and until a person is hospitalized or undergoes operation for a particular disease, he does not know the medical terminology of the disease he had been treated for. The day to day problems of pain, swelling or fever etc. cannot be termed as disease much less pre-existing disease. On the concept of meaning and import of word disease as well as pre-existing disease in the context of Mediclaim Insurance Policy and for the purpose of invoking exclusion clause, we have dealt with these aspects in great extenso and dissective manner in case after case and deem it necessary to reproduce some of the conclusions. 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.
5. We have deprecated the practice of the Insurance Companies taking out flimsy and feeble clue from the discharge summary of the patient or procured from some other hospital and use it as a weapon to frustrate the rightful claim of consumer without ensuring whether the consumer had been hospitalized or has undergone operation for such a disease earlier to obtaining the policy.
Most of the problems are normal wear and tear of day to day life.
6. In our view, the respondent should have acted upon the opinion of a highly skilled doctor and expert of Apollo Hospital that the disease for which the appellant was treated was not a congenital disease.
Even if it was so, still the fact remains that at no prior occasion the appellant had been hospitalized or operated upon for the disease and therefore the question of concealing this did not arise.
7. Proceeding on the aforesaid premise we allow the appeal, set aside the impugned order with the direction to the respondent to make payment of Rs. 1,46,520/- with Rs. 5,000/- as compensation for mental agony, which shall include cost of litigation also.
8. Payment shall be made within one month from the date of receipt of this order.
9. Appeal is disposed of in aforesaid terms.
10. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
11. Copy of the order be sent to Presidents of all the District Fora.
12. 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.
13. Announced on the 9th August, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj