JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The first issue involved in this revision petition is as to whether the disorder, from which the son of the complainant suffered, was a congenital or a genetic disorder.  The petitioner has filed opinion from Prof. Dr. Alka Deshpandey, stating therein that genetic and congenital are two different groups of disorders, are not used as synonyms and are not interchangeable.  She has also opined that all congenital disorders / defects are not genetic disorders.  In the Discharge Summary, issued by MAX hospital, the disorder of the son of the complainant was described as a known case of congenital nephritic syndrome.    At the time of discharge, the patient was advised management of Congenital Nephrosis.  However, Dr. C.H. Asrani in his opinion dated 19.2.2014, observed that the child had congenital nephrotic syndrome, which was an inherited disease (genetic).  Even Prof. Alka Deshpandey whose opinion the petitioner has filed, pursuant to the liberty granted by this Commission vide order dated 22.5.2018, has conceded in her report that some congenital disorders / defects can also be genetic disorders, when she said that all congenital disorders / defects are not genetic disorders.  This is not the opinion of Dr. Alka Deshpandey that no congenital disorder can be genetic disorder.  Though, the petitioner has also placed on record a certificate from one Dr. Kaustubh Kamat issued on 08.6.2018, the said document has been filed without any permission of this Commission since the petitioner was permitted only to file an opinion in support of its contention that a congenital disorder is altogether different from a genetic disorder.  More importantly, the report of Dr. C.H. Asrani was filed by the petitioner itself and Dr. C.H. Asrani having stated that the child had congenital nephrotic syndrome, which was an inherited disease (genetic), the petitioner is precluded from disputing that though the child was suffering from a congenital disorder, the said disorder was also a genetic disorder. In other words, disorder was such which could also qualify as a congenital disorder.

2.      Vide its order dated 26.2.2018, passed in RFA No. 610 of 2016 & CM Nos. 45832/2017 United India Insurance Company Limited Vs. Jai Prakash Tayal,  the Hon’ble High Court of Delhi inter-alia held as under:

1. “Right to avail health insurance is an integral part of the Right to Healthcare and the Right to Health, as recognized in Art. 21 of the Constitution;

2. Discrimination in health insurance against individuals based ont heir genetic disposition or genetic heritage, in the absence of appropriate genetic testing and laying down of intelligible differentia, is Unconstitutional;

3. The broad exclusion of ‘genetic disorders’ is thus not merely a contractual issue between the insurance company and the insured but spills into the broader canvas of Right to Health.There appears to be an urgent need to frame a proper framework to prevent against genetic discrimination as also to protect collection, preservation and confidentiality or genetic data.Insurance companies are free to structure their contracts based on reasonable and intelligible factors which should not be arbitrary and in any case cannot be ‘exclusionary’.Such contracts have to be based on empirical testing and data and cannot be simply on the basis of subjective or vague factors. It is for lawmakers to take the necessary steps in this regard.

4. The Exclusionary clause of ‘genetic disorders’, in the insurance policy, is too broad, ambiguous and discriminatory – hence violative of Art.14 of the Constitution of India;

5. Insurance Regulatory Development Authority of India (IRDA) is directed to re-look at the Exclusionary clauses in insurance contracts and ensure that insurance companies do not reject claims on the basis of exclusions relating to genetic disorders”.

3.      Pursuant to the above referred decision of the Hon’ble High Court of Delhi, the Insurance Regulatory Development Authority of India issued a circular dated 19.3.2018 to all the insurers, directing that no claim in respect of any existing health insurance policy shall be rejected, based on the Exclusions relating to genetic disorders.  The insurance companies were also directed not to include genetic disorders as one of the Exclusions in the Health Insurance Policies.  Therefore, it is evident that if the insured suffers from a genetic disorder, the claim cannot be denied on that ground.  Since the disorder from which the son of the complainant suffered qualified not only as a congenital disorder but also has a genetic disorder, the petitioner in my view is precluded from rejecting the claim on the aforesaid ground, in terms of Clause 4.3 (a)(x) of the Insurance Policy. 

4.      The other issue involved in this petition is as to whether the son of the complainant was hospitalized for treatment of an existing disease or not.  Pre-existing claims are not admissible until forty-eight months of continuous coverage has elapsed since the inception of the first policy with the insurer.  Pre-existing disease has been defined as under in Clause 1.51 of the terms and conditions of the policy:

          “1.51 Pre-existing Disease- means any condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms, and / or were diagnosed and / or received Medical Advice / treatment within 48 months prior to the first policy issued by the company.”

5.      I find that as per the opinion of Dr. C.H. Asrani, filed by the insurer, both instances of hospitalization of the insured were related to congenital nephritic syndrome.  On the other hand, the complainant has filed a certificate from MAX Healthcare wherein it is stated that the child was admitted with diagnosis of Sepsis which was an acute cause and was not related to the congenital nephritic syndrome or a consequence of congenital nephritic syndrome.  Neither Dr. Asrani nor the doctor who issued the above referred certificate from MAX Healthcare was examined before the District forum nor their affidavits were filed by way of evidence.

6.      In view of the contradictory reports given by two doctors, one relied upon by the insurer and the other relied upon by the insured, it becomes necessary to examine both the doctors in order to find out whether the insured was hospitalized for treatment of a pre-existing disease within the meaning of the insurance policy or not.

7.      The impugned orders are therefore set aside and the matter is remitted back to the concerned District Forum to decide the complaint afresh after examining Dr. Asrani as well as the doctor from MAX Healthcare, who issued the certified relied upon by the complainant.  The complainant will be given an opportunity to examine Dr. Asrani, whereas the petitioner will be given an opportunity to examine the doctor from MAX Healthcare.  The doctors will be summoned by the District forum and thereafter examined in terms of this order.

8.      The parties are directed to appear before the concerned District Forum on 30.8.2018.  The District Forum shall decide the complaint afresh, within three months of the parties appearing before it. 

The revision petition stands disposed of accordingly.