NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO OF 2010

Transcription

1 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO OF 2010 (Against the Order dated 15/02/2010 in Appeal No. 1354/2008 of the State Commission Gujarat) 1. ABEDIN S. BALDIWALA 325/B, Rampark Society, Behind Gulistan Masjid, Ajwa Road Vadodara Gujarat...Petitioner(s) Versus 1. UNITED INDIA INSURANCE CO. LTD. First Floor, Vakaskar Chambers, Pro. Manerko Road, Opp.: Navrang Cinema Vadodara Gujarat...Respondent(s) BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Petitioner : For the Respondent : Dated : 11 Mar 2016 Mr. Abhijeet Sinha, Advocate Mr. Harsh Kumar, Advocate ORDER 1. Aggrieved by the order dated of the Consumer Disputes Redressal Commission, Gujarat State, (in short the State Commission ), the present revision petition has been filed by Shri Abedin S. Baldiwal, the complainant. 2. Brief facts of the case are that the complainant has taken the medi-claim policy from the respondent. Thereafter, the said policy has been renewed from time to time. At the relevant time, the body of the complainant was fit and there was no ailment. When the policy was renewed, at that time also, the report of the blood and sugar was obtained and thereafter the respondent accepted the premium. Upon sudden problem faced by the complainant of this case, Dr. Madhuben Aiyer was called and she told to contact Cardiologist and therefore, Dr. Ayengar told to get detailed investigation and it was informed that he is having cardiac trouble. Therefore, he got angiography done during the period from to at Meyo Hospital, Vadodara. Because of chock up of some veins, he was advised to have surgery. Therefore, the complainant got surgery at Briech Candy Hospital, Mumbai during the period from to and incurred expenses of Rs.3.33, As per the terms of the policy, the said -1-

2 amount was to be paid to the complainant and, therefore, the complainant lodged the claim before the respondent, but the respondent partly granted the claim and sent the voucher of Rs.65000/- only. 3. Aggrieved by this settlement, the petitioner filed a consumer complaint before the District Consumer Disputes Redressal Forum at Vadodara, (in short the State Commission ) which vide its order dated allowed the complaint as under:- The complaint filed by the complainant is allowed partly. The opponent herein is directed to pay Rs.3,00,000/- (Rupees three lakhs only) to the complainant from till the said amount is recovered with interest at the rate of 9% within 60 days from the date of this order. Further, the opponent is directed to pay Rs.5000/- (Rupees five thousand only) to the complainant towards compensation for mental harassment and cost. In default, the applicant aggrieved consumer is entitled to recover the aforesaid amount, interest accrued thereon, expenses awarded and service charge, i.e. entire amount from the opponent personally and from their property. Looking to the aforesaid discussion, it is necessary to interfere with the learned Forum. The respondent/complainant has failed to prove deficiency. As the appellant is liable to pay Rs.65,000/- to the complainant, the following order is passed. ORDER Appeal No.1354/2008 is allowed. The order dated 11/09/08 passed in Complaint No.180/99 by the learned C.D.R.Forum, Vadodara is set aside. The appellant is directed to pay Rs.65,000/- to the complainant. No order as to cost regarding the appeal Hence this revision petition. We heard learned counsel for both the parties and perused the records. 7. Learned counsel for the petitioner argued that the mediclaim cover was enhanced from Rs.65,000/- to Rs.3,00,000/- in the year The total expenditure for the bye pass surgery of the insured was more than Rs.4,00,000/- and that is why the District Forum allowed the claim for Rs.3,00,000/-, which was the maximum allowed cover under the mediclaim policy. As the appeal filed by the Opposite party/respondent has been allowed by the State Commission, the State Commission has agreed with the assertion of the opposite party that the complainant suffered from diabetes and hypertension at least for two years prior to enhancement of the policy cover from Rs.65,000/- to Rs.3,00,000/-. Learned counsel asserted that at the time of enhancement, a test report of the blood and sugar was obtained and the enhanced cover was 4. The opposite parties/respondents preferred an appeal before the State Commission against the above order of the District Forum. The State Commission passed the following order on :- -2-

3 allowed after full satisfaction of the respondent. Hence, complete claim of the complainant should be allowed upto the limit of the policy. 8. Learned counsel for the respondent stated that when the complainant increased the mediclaim to Rs.3,00,000/- from Rs.65,000/-, at that time, the insured person was having hypertension and diabetes melities (which is related to the problem of heart). When the proposal form was filled in on , the said fact has not been disclosed and the same has been suppressed. In the past history of Mayo Hospital dated produced before the District Forum, hyper tension and diabetes are mentioned as present since two years. Learned counsel argued that policy is a contract based on trust between the insurer and the insured. In the present case the trust has been violated as the insured has not disclosed the material information in respect of his pre-existing diseases of diabetes and hypertension, which are responsible for heart problems. The State Commission has rightly appreciated the fact of the suppression of material information by the insured and has not allowed mediclaim as per the enhanced limit. 9. We have carefully considered the arguments advanced by both the parties. In the past history mentioned in the Meyo Hospital dated , it is clearly mentioned that patient/complainant was suffering from diabetes and hypertension for the last two years. The surveyor, Mr. K.R.Mehta in his report has mentioned the following:- On we received a letter from Breach Candy Hospital Mumbai alongwith narrative summary of patient. As per that patient felt chest pain on exertion since days before and he is a known case of DM and HT for which he was on required medicine. But the time frame since when he is having these is not stated. Therefore, we wrote another letter sent by RPAD on alongwith Rs.200 sent to Breach Candy Hospital towards their fees for narrative summary. Refer Appx I and J. Medically the Diabetes Hypertension are related but do not appear to be Causally responsible for his CAD but AS PER MEDICLAIM RULES the same should have been declared at initial or enhancement time. 11. The opposite party/respondent has basically relied on the medical history in the records of Meyo Hospital, which is dated and the report of the surveyor/investigator. 12. From the above observations of the surveyor and Dr. Buch, it is clear that it could not be found that any treatment for diabetes and hypertension was taken before the proposal form was signed and whether the patient/insured was aware about these two ailments at the time of filing of the proposal form. The opposite party/respondent has not produced any evidence to show that the insured was being treated for hypertension and diabetes before the signing of the proposal form in the year 1997 for enhancement of the insured amount. Similarly above observation of Dr. Buch also shows that bye pass surgery in the present case may not be directly related to the ailments of diabetes and hypertension. The policy amount was enhanced after blood test and sugar test and after full satisfaction of the insurer. 10. Similarly, the letter dated of Dr. C.S. Buch, MD addressed to surveyor mentions as follows:- -3-

4 13. The National Commission has decided the similar issue in the case of Praveen Damani Vs. Oriental Insurance Co. Ltd. through Divisional Manager, RP No.1696 of 2005, decided on (NC). It has been held that: 17. Hence, in our view, the Insurance Company has erroneously repudiated the claim by relying upon the so-called certificates of Dr. Aggarwal and Dr. A. Farishta to whom they have paid fees. None of the aforesaid certificates by Doctors would establish that the insured was aware of the heart ailment. If, in reality, had he been aware, he would not have waited for its treatment till he obtains the insurance cover, and take the risk of death. 18. The District Forum also relied on Clause 4.1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability. 19. If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relied on their Clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest paint etc. prior to Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease. 14. The opposite party has agreed to pay Rs.65,000/-, which is the amount covered under the original mediclaim policy. The State Commission has also allowed the same to the complainant. Once, the insurance amount was enhanced, the original policy would not remain in existence. The opposite party as well as the State Commission have basically accepted the claim under the policy. Now, this is the only question of amount to be allowed under the policy. Obviously, the policy operative at the time of bye-pass surgery was one with enhanced limit of Rs.3,00,000/-. We are of the opinion that the mediclaim cannot be denied under the policy only on a technical ground, which is also not proved beyond doubt. Hence, we are of the view that the mediclaim of the insured should be allowed within the insurance limit of the policy in the circumstances of the case. 15. Based on the above discussion, the revision petition is allowed and opposite party/respondent Insurance Company is directed to pay Rs.3,00,000/- (Rupees Three Lakhs only) -4-

5 to the complainant as claim under the mediclaim policy. As Rs.65000/- was already allowed, the remaining amount of Rs.2,35000/- is required to be paid by the respondent/opposite party to the petitioner along with p.a. from the date of order of the District Forum i.e till realization. The respondent shall also pay Rs /-( rupees sixty five thousand only) if not paid already. This will not carry any interest. The order be complied within 45 days from the date of this order, failing which, the opposite party/respondent would be liable to pay in addition p.a. on the amount of Rs.2,35,000/-(Rupees Two Lakh Thirty Five Thousand only) from the date of this order till realization as well as on amount of Rs /- if not paid earlier. Accordingly, the order dated of the State Commission stands modified. 16. No order as to costs....j V.B. GUPTA PRESIDING MEMBER... PREM NARAIN MEMBER -5-