JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellant is the opposite party/National Insurance Company in CC 183/05 in the file of CDRF, Kottayam. The appellant is under orders to pay a sum of Rs. 1,20,741 with interest at 9% from the date of repudiation till realization and also to pay costs of Rs. 1,000/-. 2. The case of the complainant, who was an Assistant Administrative Officer in the opposite party company is as follows: On 01-01-1990 the opposite party introduced a compulsory scheme of group medi claim policy to its employees. The coverage was Rs. 70,000/-. 1/3rd of the premium is to be paid by the assured and 2/3rd by the employer. The policy was renewed from time to time. On 05-03-2000 the petitioner had a myocardial infraction and was admitted at Caritas Hospital. The treatment expenses were reimbursed. From 01-04-2000 the petitioner enhanced the assured sum to Rs. 2,00,000/-. The opposite party was fully aware of the illness. Again the sum assured was enhanced to Rs. 3,00,000/- from 2001. On 16-10-2004 the petitioner underwent a coronary artery bypass graft surgery at MIOT Hospital, Chennai and was discharged on 02-11-2004. The complainant submitted the claim of Rs. 1,90,741 supported by bills. The opposite party reimbursed only Rs. 70,000/- contending that the existing disease would not be covered by the renewal policy. It is the contention of the complainant that the illness for which he was admitted in the hospital on 16-10-2004 is a fresh illness and is covered by the renewal policy from 2001. The petitioner filed a complaint before the Insurance Ombudsman who dismissed the same. He has claimed the balance amount of Rs. 1,20,741/- with interest at 12% and also compensation of Rs. 50,000/- for the financial and mental strain that he had to undergo. 3. It is the contention of the opposite party/appellant that the renewal premium was accepted subject to the clauses of the personal manual applicable to the scheme. It was also contended that the amount of Rs. 70,000/- was accepted in full and final settlement. It is contended that the diseases that existed prior to the date of enhancement of the assured amount shall be treated as preexisting diseases for the enhanced amount. The disease caused on 16-10-2004 is a continuation of the disease caused on 05-03-2000. In between this period the complainant was under treatment at Caritas hospital for the same disease. He was treated for the disease from 20-06-2004 to 24-06-2004, 3-01-2003 to 31-01-2003 at Caritas hospital and from 24-07-2004 to 27-07-2002 at AIMS, Kochi and from 23-03-2001 to 26-03-2001 at Caritas hospital. Hence it is contended that the renewal policy would not cover preexisting illness and that the assured sum of Rs. 70,000/- under the former policy prior to 01-04-2000 only can be provided to the complainant. 4. Evidence adduced consisted of the proof affidavits of the respective parties; Ext.A1 to A5, B1 to B5 and X1. 5. The Forum has rejected the contention of the opposite party that the acceptance of Rs. 70,000/- in full and final settlement barred the complainant from further pursuing the matter. It was pointed out that he had issued a protest letter prior to the date of issuing the receipt for Rs. 70,000/- in the same month and has also filed the complaint before the Insurance Ombudsman. It was found that it is only under compelling circumstances that he accepted the amount offered. We find that there is no patent illegality in the above part of the order. The same was also not raised seriously by the appellant herein. 6. The contention of the appellant was squarely with respect to the case set up that the renewed policy would not cover a preexisting disease even if the same was contracted during the coverage of the prior policy which was being continuously renewed. The policy was in existence from 01-01-1990. He was treated for the myocardial infraction on 05-03-2000. On 01-04-2000 he renewed the policy enhancing the premium to 2,00,000/- from Rs. 70,000. There is no case that the appellant was not aware of the fact that the complainant underwent treatment for myocardial infraction. He was also reimbursed the treatment expenses. There is no case that the fact that he was having the above illness and underwent treatment was not disclosed in the successive proposals. Evidently, the further treatment expense as mentioned in the version was also reimbursed. The appellant has relied on Clause 10 Note I at page 148 (Ext.A5) of the manual with respect to the details of the hospitalization and domiciliary hospitalization policy which is the impugned one. The above note provides that all preexisting diseases and diseases suffered during the aforesaid waiting period of 3 months may be excluded for coverage under the higher category irrespective of the date of treatment. In the preceding clause it is mentioned that if the subsequent change of the policy is for higher category a waiting period of 3 months shall apply for such higher category and settlement of claim there under. Of course the above clause would indicate that preexisting diseases will be excluded for coverage under the higher category. All the same clause 22 at page 153 mentions that in cases where there is no gap of insurance, diseases which have been contracted during the expired policy will continue to be included under the renewal policy. It is also mentioned that the disease contracted during the expiring policy will not be treated as preexisting for purpose of renewal policy, provided the renewal is effected without a break in period. Clause 23 further provides a treatment will be deemed to be continuous if the concerned illness relapses within 45 days from the date of last consultation with the doctor/hospital. The above clause also mentions that any occurrence after a lapse of 45 days will be considered as a new illness. Clause 4 at page 155 is also to the same effect. 7. The Counsel for the appellant has relied on the decision of the Gujarat State CDRC in United India Insurance Company Ltd. Vs Manubhai Dharmshibhai Gajera III (2004) CPJ 76. The above Commission has relied on clause 4(1) of the policy involved therein wherein it is specifically provided that preexisting diseases at the time of renewal of the policy will be excluded and that the claim will be confined to the extent of the amount insured as per the previous policy. The order of the Commission would not disclose the interpretation of the clause involved herein. 8. The complainant has relied on the decision of the National Commission in New India Assurance Co. Ltd. Vs Vasanth Rao, II (2006) CPJ 113(NC) wherein the facts are some what similar to the instant case. It was noted therein that the assured had disclosed in the proposal form the fact that he had underwent surgery for the same illness during the period of the previous policy. It was pointed out that the company ought to have sent the respondent for a medical test at the time of issuing the fresh policy and should have clearly mentioned that the heart disease is excluded from the policy. Of course in the above case the first surgery was 13 years ago but the stress in the above decision is on the fact that the assured had disclosed the fact of illness for which he underwent treatment and the fresh policy was issued by the company with full knowledge of the above fact and without specifically providing that the above illness will not be covered. In the instant case also the enhanced renewal policy was accepted after receiving more premium. The Rajasthan State CDRC in Raj Kumar Goyal Vs the New India Assurance Company Ltd., 2005 (3) CPR 15 has held that the occurrence of the same illness after 45 days is to be treated as fresh illness as per clause 3 of the policy. In the instant case also clause 23 is to the same effect. The facts of the above case are also similar to the instant one. In Oriental Insurance Company Ltd. Vs Sarla Garga I (2007) CPJ 499 the Punjab State CDRC has affirmatively held that in case of continuous policy being taken one after the other, it will have to be seen only whether the disease was preexisting at the time when the first policy was taken and not when the last policy was taken. The National Commission in Orient Treasures Pvt. Ltd. Vs United India Insurance Company Ltd. IV (2007) CPJ 146 (NC) relying on the decisions of the Supreme Court in General Assurance Society Ltd. Vs. Chandumul Jane & Anr (1996) 3 SCR 500 and United India Insurance Company Ltd. Vs. Pushpalaya Printers (2004) 3 SCC 694 has held that the policy terms if vague, interpretation should be such that the purpose of insurance is not frustrated. It is also mentioned therein that ambiguity/doubt is to be interpreted in favour of the insured. In the light of the above position of law we find that no interference in the order of the Forum is called for. The appellant would be liable to reimburse the treatment expenses of the respondent/complainant. The order of the Forum is sustained. In the result, the appeal is dismissed. JUSTICE K.R. UDAYABHANU: PRESIDENT VALSALA SARANGADHARAN : MEMBER Sr. | 
