National Consumer Disputes Redressal
The Branch Manager, Sahara India & Anr. vs Smt. Rekha Dey on 4 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4259 of 2007 (From the order dated 09.07.2007 in Appeal No.11/2007 of the State Commission, Tripura) The Branch Manager, Sahara India & Anr. Petitioners(s) Versus Smt.Rekha Dey Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr. Sudarshan Rajan, Advocate Ms.Jayashree Narsimhan, Advocate For the Respondent(s) : NEMO. Pronounced on 4th April, 2012 ORDER
PER VINEETA RAI, MEMBER The Branch Manager, Sahara India and another (hereinafter referred to as the Petitioner) has filed this revision petition against the orders of the State Consumer Disputes Redressal Commission, Tripura (hereinafter referred to as the State Commission) in Appeal No.11/2007 which was decided in favour of Rekha Dey, Respondent herein who was the original complainant before the District Forum.
The facts of the case according to the Respondent/Complainant are that she had converted her investments of Rs.1,17,415/- to the Silver Year Labh Yojna Scheme of the Petitioner on 16.01.2004 and as per the provisions of this Scheme, any person who invests Rs.67,000/- or more can claim and realize insurance coverage upto Rs.10 lakh in respect of critical illness and personal accident. During the subsistence of the policy on 24.03.2004, Respondent experienced chest pain and consulted Dr.Johan Cristopher in the Tripura Super Specialty Hospital, Agartala. After diagnostic tests which included ECG etc. she was diagnosed with critical rheumatic heart disease and advised an operation. Respondent thereafter got admitted to the Department of Cardiothoracic Surgery at the Christian Medical College(CMC) Hospital, Vellore on 01.06.2004 and underwent a mitral valve replacement on 04.06.2004.
She was discharged from this hospital on 11.06.2004 with an advice to continue medication. Respondent had informed the Petitioner vide her letter dated 27.04.2004 of the above developments and after the operation she submitted a claim on 29.06.2004 along with relevant documents. However, after reminders, she was finally informed on 31.08.2004 that since mitral valve replacement is not covered under the special contingency policy as critical illness, the claim was repudiated. Since Coronary Artery Surgery is covered as per the Scheme within the definition of critical illness, Respondent was aggrieved by the unjustified decision of the Petitioner to repudiate the claim and therefore, filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioner be directed to pay her Rs.1,37,106/- for hospitalization and operation expenses at CMC Hospital, Vellore, Rs.11,463/- for the medicines purchased from 01.06.2004 to 18.06.2004, Rs.10,000/- for treatment and tests and Rs.1 lakh as compensation for mental agony with interest @ 12% per annum from 29.06.2004 till realization. Rs.10,000/- were sought as litigation costs.
The above contentions were denied by the Petitioner who stated that the claim was rightly repudiated because mitral valve replacement per se is not included as a critical illness under the Silver Year Labh Yojna Scheme which only covered coronary artery surgery, cancer, renal failure, stroke, multiple sclerosis and major organ transplant. During the arguments before the District Forum, Counsel for Petitioner also stated that as per the Discharge Summary issued from CMC Hospital, Vellore it appears that the patient was suffering from this disease prior to her having invested the amount in the present policy but she had suppressed this fact since no such declaration was made by her at the time of making the investments.
The District Forum after considering all these facts allowed the complaint by concluding that the Respondent had undergone surgery for mitral valve replacement which is a coronary (artery) surgery and therefore, her medical condition was very much covered under the purview of critical illness declared in the said Scheme. District Forum also concluded that there was no column in the application form seeking any declaration from the investor regarding any pre-existing disease. The District Forum therefore, directed the Petitioner to pay the Respondent, Rs.1,37,256/- for expenses towards her treatment, Rs.10,000/- for mental agony and harassment and Rs.5,000/- as litigation costs.
Aggrieved by this order, Petitioner filed an appeal before the State Commission.
State Commission dismissed the appeal and upheld the order of the District Forum. The relevant part of the order of the State Commission reads as follows:
Mitral Valve replacement according to Dr.Johan Christopher, a super specialty medical officer is definitely a critical illness for which the complainant had to undergo open heart surgery Coronary Artery Surgery on 04.06.2004 at C.M.C. Hospital, Vellore. Therefore, we are of the view that the aforesaid disease is definitely a critical illness and according to the letter of the appellant dated 11.10.2003, she is entitled to all the benefits from the date of conversion i.e. from 24.01.2004 and in her case, one year waiting period will not apply as she was already a member and according to the aforesaid letter of the appellant dated 11.10.2003 she is entitled to benefits from the date of conversion i.e. 24.01.2004. She has undergone operation on 01.06.2004 and the date of operation is after the date of conversion and accordingly, she is definitely entitled to reimbursement of all expenses for her critical illness. Therefore, we agree that the findings of the District Forum, West Tripura are right and we do not find any ground to interfere with the judgment passed by the District Forum, West Tripura. Accordingly, we do not find any merit in the appeal and consequently, the appeal fails and is dismissed. However, we make no order as to costs.
Hence, the present revision.
Counsel for Petitioner was present. Respondent had sent a letter that in view of her ill-health she is unable to be personally present and requested that the case be decided on merits based on the evidence on record.
Counsel for Petitioner states that the learned Fora below erred in not appreciating the fact that mitral valve replacement is not specifically mentioned as a critical illness in the Scheme and therefore, the claim was rightly repudiated. Further, it is well established that a contract of insurance is made in utmost good faith and suppression of any material fact by the insuree would entitle the Insurance Company to repudiate the claim. Since as per the discharge summary slip of CMC Hospital, Vellore, the Respondent was a known case of rheumatic heart disease for 6 months (though later the 6 months was fraudulently changed to 3 months by her overwriting this period in ink). It is clear that Respondent was aware of her pre-existing disease as per the evidence on record and she had knowingly suppressed this material fact and later fudged the medical records of CMC Hospital, Vellore with ulterior motive breaching the principle of utmost good faith. The claim was, therefore, rightly repudiated.
We have heard learned Counsel for Petitioner and have gone through the evidence on record. The facts that Respondent converted her investments to the Silver Year Labh Yojna Scheme of the Petitioner and that she underwent treatment/surgery for mitral valve replacement at CMC Hospital, Vellore and submitted medical claims for the same to the Petitioner are not in dispute. From the letter of repudiation on file, we note that the only ground on which the claim was repudiated is that the illness for which she was treated does not fall within the definition of critical illness in the said Scheme. When we asked the Counsel for Petitioner whether the documents on the basis of which it states that there was suppression of material facts, have been proved, Counsel for Petitioner was unable to produce any evidence to confirm this fact apart from the verbal submissions made before us. We further note that Petitioner did not take this as a ground for repudiation of the claim in its letter of repudiation nor before the State Commission and therefore, State Commission has also not discussed this issue at all. From the revision petition filed before us, it appears that this issue was not pressed before the State Commission. A point based on facts which was not argued before the State Commission cannot be permitted to be taken-up now. The only issue for decision before us, therefore, is whether mitral valve replacement can be included as coronary artery surgery and thus a critical illness in terms of the Scheme. This issue came up came for interpretation before a Bench of this Commission in LIC of India Vs. Dajadu Sitaram Mahale
- R.P.No.1588/2010 decided on 22.09.2011 wherein on the basis of expert evidence filed before it, this Commission had concluded that such procedures do come within the ambit of coronary heart surgery. More recently, in R.P.No.2835/2007 LIC of India & Ors. Vs. Pathivada Mrutyunjaya Rao decided on 21.10.2011, this Commission reached a similar conclusion.
The present case being similar is squarely covered by the above judgments. We, therefore, agree with the District Forum and the State Commission that the surgery for mitral valve replacement is a critical illness under the provisions of the Scheme and the Petitioner was not justified in repudiating the claim. In view of these facts, we uphold the order of the State Commission and dismiss the revision petition. Petitioner is directed to pay the Respondent, Rs.1,37,256/- for expenses towards her treatment, Rs.10,000/- for mental agony and harassment and Rs.5,000/- as litigation costs within six weeks from the date of receipt of this order failing which the entire amount carry interest @ 9% per annum from the date of default till realization.
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(ASHOK BHAN J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER /sks/