Per Mr.S.R.Khanzode, Hon’ble Judicial Member

This appeal arises out of order dated 06/11/2009 passed in consumer complaint no.3/2008, Jagdish Chunilal Seth v/s. The Oriental Insurance Co. Ltd. and another, passed by South Mumbai District Consumer Disputes Redressal Forum.  It is a case related to deficiency in service in repudiating the mediclaim.

Undisputed fact is that respondent/original complainant was covered under the Mediclaim insurance policy issued by appellant/org. O.P.no.1 / Insurance company at the relevant period.  On 14/7/2005, complainant was admitted in the Cumballa Hill Hospital & Heart Institute as per advice of his doctor and he was treated there.  He had undergone angioplasty and a stent  was implanted on 11/11/2005.  He had incurred expenses of `3,30,453/- and for which made an insurance claim on 09/3/2006.  Said claim was repudiated on the ground that the complainant was suffering from hypertension since 15 years, he had undergone CABG in the year 1986 and PTCA in 1994 and since his hypertension is proximate cause of the present heart ailment, there is breach of utmost good faith.  He was communicated the repudiation by the Insurance company by original O.P.no.2 by its letter dated 20/1/2006. Consequent to it this consumer complaint was filed. 

It came to be partly allowed in favour of the complainant directing appellant/original O.P./Insurance company to pay compensation of `1,25,698/- along with interest @ 8% p.a. and `5,000/- as compensation towards the mental torture and `2,000/- as cost.  Feeling aggrieved thereby this appeal is preferred by the Insurance company.

We heard Mr.J.S.Chandnani-Advocate for the appellant and respondent/org. complainant in person, at the stage of admission.

It is not disputed that at the relevant time, complainant had undergone angiography and consequent angioplasty at Cumballa Hill Hospital & Heart Institute and incurred the expenditure as mentioned and to which an insurance claim was made.  Ld.counsel appearing for the Insurance company made a reference to clause 4.1 of the Mediclaim Insurance policy in support of his contention that the repudiation was proper.  It reads as under:-

“4.1: Such diseases which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury which existed prior to the effective date of this insurance.  Pre-existing condition also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to the sickness.  Complication arising from pre-existing disease will be considered part of that pre-existing condition.”

Considering the evidence led by the parties particularly, considering affidavit of Dr.Ajit Menon and Dr.Arun B. Shah, who are experts in their own field relating to the illness suffered by the complainant stated that the complainant was suffering from Benign positional vertigo and not PTCA and, further, categorically stated that the said illness has nothing to do with alleged hypertension or CABG in 1996 or PTCA in the year 1997.

Ld.counsel appearing for the Insurance company referred to the affidavit of Dr.M.S.Kamath but we find that looking to the expertise of the Dr.Arun B. shah and Dr.A.R.Menon and, further, considering that there opinion stands corroborated by the medical literature, the hypothesis tried to be advanced by Dr.M.S.Kamath cannot be accepted. Preponderance of probabilities do speak in favour of the complainant.  Thus, we find that the repudiation of the insurance claim cannot be justified since it is not on valid grounds and, thus, it being arbitrary and improper; repudiation of the claim on that count by the insurance company amounts to deficiency in service on the part of Insurance company.  Hence, we find no fault with the impugned order which is a reasoned one.  No reason to take a different view than what has been taken by the Learned Forum below.  Therefore, the appeal being devoid of any substance, we pass following order:-

                                      ORDER

Appeal is not admitted and stands accordingly rejected.

In the given circumstances no order as to costs.

Copies of the order be furnished to the parties.