ORDER
Complaint under Sec.12 of the CPA 1986 as amended upto date
Per Sh. Vikram Dabas, Member
In the case of Oriental Insurance Company and Another V/s Mohinder Singh (Dr.), IV (2008) CPJ 511. The State Commission, Delhi had an occasion to deal with the meaning and the concept of the word “disease” as well as the “pre-existing disease”. The commission had observed as under:-
6.A person comes to know about the medical terminology of a particular disease when he lands in the hospital and undergoes treatment or operation. If a person had suffered heart attack or got treatment for a particular disease say 10-15 years before and has been leading healthy and normal life he is not supposed to disclose the factum of having undergone treatment or operation for particular disease 10-20 years before. It is only the disease which is existing at the time of obtaining the policy or in the near proximity of it for which the insured has undergone any treatment or operation which is pre-existing disease and not the disease for which the man had already obtained the treatment and cured himself and was leading healthy life of a healthy person.
The commission had further observed:-
7.Our conclusions on the meaning and import of words disease, pre-existing disease for the purpose of mediclaim insurance policy, are as under:
(i)Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii)Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(iii)Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv)If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v)Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi)Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(vii)Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(viii)Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix)For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
(x)Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
8. Had the deceased been suffering from such disease he would not have continued to live ordinary life by performing all the chores and ordeals and that too after being subjected to basic medical test by the panel doctors of the insurance company. On the aforesaid criteria and particularly taking clue from the discharge summary of the patient is no ground for rejection of the claim. The onus is on the insurance company to prove that the insured concealed the factum that he has been suffering from the pre-existing disease at the time of obtaining the policy.
We have considered the contentions on both sides. Insurance Regulatory and Development Authority has issued guidelines on 9-9-2011 under the head portability it reads:-
1.1 Portability : Portability means the right accorded to an individual health insurance
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policy holder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.
1.2 Break in policy: A break in policy occurs when the premium due on a given policy is not paid on or before the premium renewal date or within 30 days thereof.
In view of the observations made in the judgment cited by us above, we are of the considered opinion that OP -2 ought not to have repudiated the claim on the basis of the case summary and hold that the patient was suffering from a pre-existing disease. We hold that the repudiation of the claim was unjustified and that OP - 2 was deficient in rendering service and direct it as under:-
1.Pay to the complainant a sum of Rs.18507/- alongwith interest @ 10% p.m. from the date of institution of this complaint i.e. 2.11.2010 till payment.
2. Pay to the complainant a sum of Rs.10,000/- as compensation for pain and agony suffered by her.
3.Pay to the complainant a sum of Rs.5000/- as cost of litigation.
OP - 2 shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. If OP - 2 fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule. File be consigned to record room.
Announced in open sitting of the Forum on.....................
(NIPUR CHANDNA) (DR. VIKRAM DABAS) (RAKESH KAPOOR) MEMBER MEMBER PRESIDENT
