ARGUED BY:    Sh.Dinesh K.Gupta, Adv. for the Complainant

Ms.Anamika Mehra, Adv. for OP

          ---

PER LAKSHMAN SHARMA,  PRESIDENT

          Dr.P.K.Aggarwal has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed:-

a)              To reimburse mediclaim of Rs.2,35,000/- along with interest.

b)              To pay a sum of Rs.1,00,000/- on account of mental agony and harassment etc.

c)              Costs of litigation.

2.        In brief the case of the complainant is that he took mediclaim insurance policy from OP for the year 1993-94 and thereafter started taking policy from National Insurance Co.  Subsequently on 07.11.2004, he again shifted to Oriental Insurance Co.(OP).  The complainant got renewed his policy for the period from 09.11.2005 to 08.11.2006 under the good health insurance policy and paid a sum of Rs.5246/- as premium.  According to the complainant, the form was filled up by OP through its representative and except for particulars of his and his wife,  no other information was sought for or got filled up by putting any question to him. In August, 2006, the complainant felt breathless and giddiness. So he got himself admitted in the Fortis Hospital, New Delhi where certain tests were also conducted upon the complainant. The complainant remained admitted in the said hospital from 29.08.2006 to 05.09.2006 and thus incurred a sum of  Rs.2,35,000/-.  On 18.12.2006, the complainant submitted his claim for reimbursement of Rs.2,35,000/- incurred on his treatment.  In reply, OP wrote a letter dated 18.09.2006 stating that the complainant underwent coronary and caroted angiography in 2004 and sought the copy of angiography. 

          According to the complainant in 2004, he felt hypertension, so he got himself examined at Batra Hospital, New Delhi where angiography was done to find the disease. So the complainant sent the copy of the discharge summary Annexure C-4. Thereafter, the complainant wrote another letter dated 18.12.2006 requesting OP to process the claim. The complainant received a letter dated 21.12.2006 wherein the complainant was informed that claim was not payable under exclusion clause 2.1 of the insurance policy and therefore, the same was repudiated vide letter dated 14.11.2006 on the ground that the complainant was suffering pre-existing disease. According to the complainant, the hypertension is not a pre-existing disease and after angiography test, he was advised conservative management and the same does not mean that he was suffering from any pre-existing disease. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OP, it has been admitted that mediclaim insurance policy was issued to the complainant and the same was valid for the period from 09.11.2005 to 08.11.2006. It has been pleaded that the complainant purchased Good Health Insurance Policy by misstating the facts in Clause 1, 3 and 9 of the proposal form which reads as under:

      It has been denied that the complainant was forced to purchase the policy. On receipt of the claim form, Sh.B.B.Sharma was appointed to investigate the claim.  The investigator sought opinion from Cardiologist namely Dr.N..Singh (M.D.(Medicine) on 28.10.2006 which reads as under:-

1.                                      “As per the medical records, Mr.P.K.Aggarwal was diagnosed to have hypertension, Dyslipidaemic, mild atherosclerotic

2.                                      Mr.P.K.Aggarwal was managed for the cardiac ailments which were pre-existing at the time of the purchase of policy”.

          According to OP, the claim of the complainant was not payable as per the exclusion clause 2.1 of the insurance policy and hence, the same was rightly repudiated vide letter dated 14.11.2006. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4.        We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 

5.        Annexure C-10 is the repudiation letter dated 14.11.2006 which reads as under:-

     “This has reference to our letter dated     18-09-2006 wherein we had sought papers regarding coronary and carotid angiography in the year 2004.

     On going through the discharge summary of the said report, we found that you were admitted in Batra Hospital for the period 06-04-2004 to 09-04-2004, you have a case of hypertension and was having dyslipidaemic on exertion class II for 4 months. Angiography was done on you which related mild atherosclerotic coronary artery disease. This fact was not disclosed to us when you purchased Good Health Insurance Policy for the first year i.e.   07-11-2004. The proposal form submitted by you states that you are not suffering from heart disease Further in the 9" column of proposal form no pre-existing disease / illness suffered by you were mentioned.

     Further, we had sought medical opinion and the doctor has also opined that the procedure done on you from 29-08-2006 to 05-09-2006 was pre-existing in nature, Hence, the claim lodged by you for the treatment taken during this period stands "Repudiated" as it was a pre-existing disease which was not disclosed by you at the time of taking insurance cover, these facts were deliberately concealed by you and claim comes under exclusion 2.1 of the policy terms and conditions of Good Health Insurance policy”.

6.        From the perusal of the said repudiation letter, it is apparent that the claim submitted by the complainant was repudiated on the ground that the complainant concealed the material fact regarding pre-existing disease at the time of taking the insurance policy in the year 2004. It is well established law that onus to prove that the complainant was suffering from any pre-existing disease prior to taking the insurance policy and he did not disclose the above said fact is of the insurance company. In order to prove the above said fact, OP has relied upon the discharge summary (Annexure C-7) and the letter dated 28.10.2006 (Annexure R-4) written by Dr.N.P.Singh. In the said letter dated 28.10.2006, Dr.N.P.Singh has mentioned that the complainant was having pre-existing disease at the time of taking the insurance policy in the year 2004. It is pertinent to mention here that Dr.N.P.Singh is not the treating doctor and he did not conduct any of the tests mentioned in the discharge summary (Annexure C-7). He has given his opinion on the basis of discharge summary. The discharge summary has not been got verified from any of the treating doctors. It has been held specifically by the Hon'ble National Commission in the case titled as New India Assurance Co. Ltd. Vs. Arun Krishan Puri reported in III(2009) CPJ-6 (NC) that in the absence of any verification of the discharge summary by a doctor who treated/issued the discharge summary, no reliance can be placed on it. No other evidence either in the shape of document or in the shape of statement of any treating doctor has been placed on record to prove the pre-existing disease.

7.        As the discharge summary has not been verified by the treating doctor or by the doctor who issued the same, no reliance can be placed on it.

8.        So the opinion of Dr.N.P.Singh which is also based on this discharge summary can also not be relied upon. So OP has failed to prove that the complainant had any pre-existing disease prior to taking of the insurance policy. So the repudiation of the claim amounts to deficiency in service.

9.        Annexure C-5 is the copy of the bill issued by the Fortis Hospital, New Delhi regarding the expenses incurred by the complainant on his treatment during his admission in the hospital. From the said bill (Annexure C-5), it is apparent that the complainant spent a sum of Rs.1,67,119/- on his treatment. No other bill has been placed on record. So the complainant is entitled to Rs.1,67,119/- only. 

10.       In view of above findings, this complaint is allowed with direction to OP to reimburse the mediclaim of Rs.1,67,119/- to the complainant. OP is also directed to pay a sum of Rs.20,000/- as compensation for mental agony and harassment etc. besides Rs.5000/- as costs of litigation.

11.       This order be complied with by the OP within one month from the date of receipt of its certified copy, failing which the OP shall also be liable to pay the amount of Rs.1,87,119/- to the complainant along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 22.12.2008 till its realization besides costs of litigation. 

12.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.