No. 4/06.10.2010.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant through Mr. Sujit M. Maitra, the Ld. Advocate and Respondent No. 1 through Mr. Gopal Basu, the Ld. Advocate are present.  Respondent No. 1 files BNA.

The Insurer of a Hospitalization Benefit Policy taken by the Complainant has come up in an appeal against the judgement and order of the concerned District Forum thereby allowing the complaint case by directing the Insurer to pay to the Complainant a sum of Rs.84,652/- that has been incurred by way of medical expenses for surgical intervention namely Abdominal Hysterectomy done on the wife of the Complainant.

Evidently Complainant purchased such Hospitalisation Benefit Policy covering Rs.2,00,000/- at an yearly premium of Rs.8,448/- only from O.P. - Insurer on and from 17.04.2005.  It has not been disputed that the Complainant paid yearly premium regularly.  Thereafter Complainant’s wife became suddenly ill on or about 10.07.2007 for which one Dr. Mridula Vhora was consulted who advised for certain medical examinations and tests.  As per the advice of Dr. Vhora USG of whole abdomen was done on 17.07.2007.  Subsequently one Dr. Binod Khattry, a specialist was consulted for the treatment of the wife of the Complainant.  Said Dr. Khattry after examining the patient advised for surgical intervention namely Abdominal Hysterectomy.  Accordingly the Complainant’s wife was admitted to Belle Vue Nursing Home on 30.07.2007 and was operated upon by Dr. Khattry and ultimately discharged on 05.08.2007.  The Complainant thus incurred a total expenditure of Rs.84,650/- for his wife’s treatment as above in the said Nursing Home and, therefore, lodged a claim with the Insurer within the stipulated time for payment of the aforesaid amount.  The said claim has been repudiated by the Insurer by merely stating that the Complainant’s wife had pre-existing disease.

In these facts and circumstances the above complaint case has been filed for direction upon the Insurer to pay the aforesaid amount along with the cost of litigation.

The O.P. No. 1 though filed a Written Version to the aforesaid complaint case but did not appear to contest the same either by producing any witness and/or by tendering any material evidence and also by being present at the time of hearing of the complaint case.  It is evident from the records of this case that the Complainant produced all the reports relating to the medical examinations and tests held the wife of the Complainant as per the doctor’s advice.  It has revealed that a USG of the whole abdomen of the Complainant’s wife was done on 07.09.2004 prior to the taking of the aforesaid medical policy by the Complainant.  The report of such medical examination of USG has also been produced by the Complainant.  The opinions of two doctors namely Dr. C. P. Sharma and Dr. Subrata Dawn obtained by the Insurer, on the basis of which the claim of the Complainant has been repudiated have also been produced by the O.P. - Insurer.  The Complainant has further produced the latest USG report dated 17.07.2007 on the basis of which Dr. Khattry made the surgical intervention of Abdominal Hysterectomy on the Complainant’s wife.

On the strength of the aforesaid material it has been strongly urged on behalf of the Insurer that since the USG report of the year 2004 reveals that the Complainant’s wife had bulky heterogenous uterus which fact had not been disclosed by the Complainant at the time of taking of the aforesaid medical policy, there was suppression of material facts and as such the repudiation of the claim of the Complainant was perfectly justified and within the right of the Insurer.

We are unable to accept such contention on behalf of the Insurer – Appellant.  Evidently an USG of lower abdomen of the Complainant’s wife was done on 07.09.2004 on the advice of one Dr. Mridula Vhora.  The report of such USG merely spoke of an impression of bulky heterogenous uterus of the Complainant’s wife without indicating that such sate of uterus needed a clinical correlation and further investigation for treatment of any disease suffered thereby.   It is furthermore evident therefrom that apart from bulky heterogenous uterus the said report of USG was perfectly normal.  The report of USG that was held on 17.07.2007 after the Complainant’s wife complained of certain problems on the other hand gave an impression that there were multiple myomas in the uterus as well as calculus in right kidney  for which clinical correlation and further investigation, if indicated were advised.  The opinion of two doctors as produced by O.P. – Insurer varies with each other.  Interestingly opinion of the said two doctors have been produced by the Appellant – Insurer to establish their contention that she had pre-existing disease of uterus.  Upon plain reading of the opinion of Dr. Subrata Dawn it appears that the Complainant’s wife was diagnosed as suffering from adenomysis.  There is no medical evidence whatsoever to establish that such development of adenomysis was only because of bulky heterogenous nature of uterus of the Complainant’s wife as found in the USG report dated 07.09.2004.  The Dr. C. P. Sharma also did nowhere opine that the bulky heterogenous nature of uterus of the Complainant’s wife had resulted in her present condition of the patient which necessitated such surgical intervention of Abdominal Hysterectomy.  Most importantly that Dr. Subrata Dawn has specifically opined that it is also not clear why the patient was ultimately operated upon leading to an idea that actually the patient was suffering from a pre-existing  Dysfunctional uterine bleeding.  Therefore, there is no medical evidence and/or any other cogent material evidence to establish that the bulky heterogenous condition of uterus itself is a kind of disease or such condition of uterus necessarily result in surgical intervention of Hysterectormy.   It has also not been established that in medical parlance such condition of uterus is a kind of disease which needed medical intervention then and there.

In the absence of such medical evidence and/or any other materials on record in this regard it cannot at all be said that at the time of taking of policy by the Complainant in the year 2005 there was suppression of any pre-existing disease of the wife of the Complainant.  Furthermore, the Proposal Form for such medical insurance policy that was submitted by the Complainant had only one column for disclosing disease of uterus, ovaries of breast or any specific gynecological disorder.  In such column the Complainant had stated that none suffered by his wife.  In this case it has not been proved either by any medical evidence and/or on the basis of the aforesaid opinions of the two doctors namely Dr. C. P. Sharma and Dr. Subrata Dawn that mere bulky heterogenous condition of uterus is a disease of uterus or specific gynecological disorders requiring medical correlation with further investigation.  In the absence of such materials we are also of the opinion that the Complainant was not guilty of any suppression of material facts at the time of taking of the aforesaid mediclaim policy.  The decision reported in 2010 (1) ICC at page 9 (Satwant Kaur Sandhu – vs. – New India Assurance Company Ltd. cited on behalf of the O.P. – Insurer laying down the principle that “it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge” has no manner of application in the facts and circumstances of this case because the said medical report nowhere suggested that bulky heterogenous uterus is a form of disease suffered by the wife of the Complainant or a specific gynecological disorder requiring treatment.

For all the aforesaid reasons, the appeal fails and the same is, therefore, dismissed with cost of Rs.5,000/-.