IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 226/08 DATED 15-10-2008<br /> <br /> ORDER<br /> <br /> Complainant N.K.Venkatarangan, S/o Late N.Krishnaiyengar, 661, 3rd Main, Aravindanagara, Mysore-23.<br /> (By Sri.T.H.Shankaranarayana., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. M/s Bajaj Allianz Life Insurance Company Limited, I Floor, Mythri Arcade, Kantharaj Urs Road, Saraswathipuram, Mysore-9.<br /> 2. Authorised Signatory, M/s Bajaj Allianz Insurance Company Ltd., GE Plaza, Airport Road, Yerawada, Pune-411006.<br /> (By Sri.AKJ., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 27.07.2008<br /> Date of appearance of O.P. : 01.09.2008<br /> Date of order : 15.10.2008<br /> Duration of Proceeding : 1 ½ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant against the Opposite party with his grievance that he has purchased an unit linked insurance policy under plan Bajaj Allianz New Unit gain commencing from 04.10.2006. The policy was for Rs.50,000/- as basic benefit with supplementary benefits of accident rider for Rs.50,000/-, critical illness cover rider for Rs.50,000/-, total partial disability of Rs.50,000/-, and hospital cash rider of Rs.200 per day under the contract deed. These benefits will be available to him for a premium of Rs.10,000/- per year for three years only. Accordingly he paid all the three premiums on 07.10.2006, again in the year 2007 and last premium on 01.10.2008. At the time of taking the policy he was asked about state of his health by the agent and field officer, then he gave relevant details and also told them to had undergone heart surgery for replacement of heart valve and he gave them copies of documents pertaining to these operations. Since then he had no health problems what so ever and he was leading a normal life. But the company did not subject him to any medical examination. In the month of October 2007 he went for a general checkup and he also undergone angiogram, but the gradient of the valve was confirmed to be high. Then he consulted a cardiac specialist. Then he was advised to undergo surgery of AVR he got admitted to hospital on 18.04.2008. A redo AVR or Ross procedure was planned and he was operated on 08.05.2008. Then he was discharged on 22.05.2008. Then he made a claim for reimbursement of the hospital expenditure, but the Opposite party after a month sent a letter stating that this complainant had history of S/Opponent AVR in 1994. Based on that his claim came to be repudiated on the ground of suppression of the earlier treatment that is unit linked policy was around Rs.7,900/- as on 03.07.2008, that was more than Rs.12,000/- was adjusted towards payment of premium out of Rs.20,000/-. Therefore contending that the Opposite parties have caused deficiency in repudiating his claim and has prayed for the relief of reimbursement of Rs.50,000/- and Rs.200/- per day for 32 days treatment and also award compensation for mental agony.<br /> 2. The Opposite party has appeared through his advocate and filed the version denying all other allegations as contended that the complainant had deliberately suppressed information regarding his health conditions and previous surgeries undergone by him as found from the proposal form especially at Col.No.14(d) referring to Cardio Vascular system wherein the complainant himself has filled up the form indicating “no” claiming as if he had no disorder though he had undergone a major surgery. The complainant has deliberately suppressed the said vital fact and further stating they have no knowledge of the other treatments, and tests undergone by the complainant, justifying their action in repudiating the claim has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, complainant and one Prakash Singh, Branch Manager of Opposite party have filed their affidavit evidence reproducing what they have stated in their complaint and version. Both the parties have filed their written arguments. The complainant has produced 2 decisions of the Hon’ble State Commission of Delhi rendered in appeal No.FA-07/94 dated 29.01.2008 and another decision but the appeal number is not correct. Heard the counsel for both the parties.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the Opposite party has caused deficiency in his service in repudiating his claim for reimbursing the medical expenditure on the ground of pre-existing disease?<br /> 2. To what relief the complainant is entitled?<br /> 5. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- As found from the grievance of the complainant and also affidavit evidence filed by him, he underwent treatment for his cardiac problem in the year 1994 for S/P AVR mild Aerotic Regurgititon high gradient across the prosthetic valve, sinus rhythm and during October 2007 when he went for general checkup, the doctors found that the gradient of heart valve was higher during the eco-cardiogram and to confirm they advised him to undergo angiogram. The gradient of the vale was confirmed to be high both from the eco test and angiogram as well. Then the cardiac surgeon advised him for a redo AVR as the higher gradient of valve is unusual and may be causing obstruction in opening and closure of valve leaflets which might cause problem in future and therefore under went surgery of AVR on 18.04.2008, a redo AVR or ross procedure was planned and he was operated on 05.05.2008 and was discharged on 22.05.2008. Therefore, it is not in dispute between the parties that the complainant during 1994 had history of S/o AVR and of course the complainant has stated thereafter till 2007 he did not have any problem and he was having normal health.<br /> 7. There is no dispute between the parties that complainant had purchased an Unit linked insurance policy from the opposite party commencing from 04.10.2006 for a period of 3 years and he had paid all the three premiums and the policy was for Rs.50,000/- as basic benefit with supplementary benefits of accident rider for Rs.50,000/, critical illness cover rider for Rs.50,000/- and for total / partial disability for Rs.50,000/- with hospital and cash rider of Rs.200/- per day. The defense of the opposite party is one that the complainant when took the policy did not disclose the surgery he had undergone and has obtained the policy by suppressing the fact and has referred to Col.No.14(d) of the proposal form which has a reference to cardio vascular system and stated that the complainant while filling up the said proposal form himself has filled up and stated he had not suffered any cardiac problem by mentioning a negative answer. Thereby meaning that he had no disorder or disease of cardio vascular system though in the year 1994, the complainant had undergone major surgery. For this reason, the opposite party has repudiated the claim of the complainant.<br /> 8. The complainant who has prosecuted the complaint in person filed written arguments by referring to a decision of the Hon’ble Delhi State Commission rendered in Appeal No.FA-07/794 dated 29.01.2008 and another appeal No.07/609 dated 12.11.2007 which is also of the same commission. These decisions in our view had to be read as FA 794/07 and 609/07. In these two decisions, the Hon’ble Delhi State Commission has held that if the insured had been hospitalized or operated upon for any disease in the near past, say, six months or a year he is supposed to disclose the said fact and further held that if there is a long gap between the pre-existing disease and subsequent treatment that cannot be considered as a pre-existing ailment for considering the reimbursement of the medical claim and thereby rejected the defense of the insurance company. The complainant has also produced a copy of the order passed by the Hon’ble National Commission in revision petition No.973/07 wherein the Hon’ble National Commission while interpreting the terms of the policy has held had if there are 2 reasonable interpretation of the terms of the policy are possible, the interpretation which favours the insured is to be accepted. These decisions have no application to the facts of this case. The Hon’ble National Commission in a decision reported in 2008 CTJ page 963(CP) between Sunithlal Swaroop Chand Soni Vs. New India Assurance Company Limited and also another decision reported in II (2007) CPJ page 51 between Life Insurance Corporation of India Vs. Krishan Chander Sharma, has held that there could be no reason for not disclosing regarding pre-existing disease at the inception of the policy or even at the time of renewal of the policy and thereby held in such a case, the insured is justified in repudiating the claim of the opposite party. In the case on hand, the complainant admittedly had undergone surgery in the year 1994 and had history of S/P AVR and when he during October 2007 went for general checkup, the doctors found that the gradient of heart valve was higher during the eco-cardiogram and also confirmed in the angiogram. Therefore, in order to redo the same he on 08.05.2008 undergone another operation in which a redo AVR was done. Therefore, it cannot be said that S/P and AVR that was done on him had totally took him out of cardio vascular problem he was continuing with valve which was causing obstruction in opening and closure of valve leaflets. Therefore, the earlier surgery was though done in the year 1994, the complainant did not come out of this problem and therefore in the year 2007 AVR has to be redone and same has been done on 08.05.2008. As such, the second surgery done on the complainant cannot be said has nothing do with the disease he had prior to inception of the policy, as such the decisions of the Delhi State Commission have no bearing to the facts of this case and also in the light of the decisions of the Hon’ble National Commission referred to above.<br /> 9. In the discharge summary produced by the complainant and also opposite party it has been clearly stated that the complainant was diagnosed S/P AVR and the previous history has also been given as S/P AVR in 1994 and the operation was done as redo aortic valve replacement with Medtronic hall aortic valve prosthesis. The opposite party has contended that when the complainant presented proposal form had filled up the proposal form by himself and answered the question with regard to any cardio vascular problem in the negative indicating as if he was not suffering from any cardio vascular problem, which undoubtedly a suppression of the fact of this complaint having had undergone AVR. The complainant in the complaint and also in the affidavit evidence has stated as if he had disclosed everything to the agent and also the men of the opposite party, but that is falsified by the fact that the proposal form at Col.No.14(D) he has marked as Nil, which is nothing but suppressing the fact as such the opposite party in our view is justified in repudiating the claim of the complainant. Thus the complainant cannot permitted to take advantage of his own fault in having filled up the form stating that he did not have any disease on that day. Though, the doctor of the opposite party also conduct medical examination of the proposer, but insurance being a contract entered into with good faith of both the parties, the complainant cannot take shelter under any pretext and therefore we hold that there is breach of the part of the complainant in having had not disclosed the surgery he had underwent prior to the filling of the proposal form. As the result, the complainant cannot attribute deficiency in service of the opposite party as such complaint in our view is devoid of merits and therefore we answer point no.1 in the negative and pass the following order:-<br /> ORDER<br /> <br /> 1. The complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 15th October 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />