MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellant/complainant against the order, dated 6.9.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 30 of 2010 vide which, it dismissed the complaint. 

2.         Briefly stated, the facts of the case, are that the complainant being an Advocate and a member of the Punjab & Haryana High Court Bar Association, became a member of the Group Mediclaim Insurance Policy, issued by OPs No.1 and 2. The customer ID of the complainant was 4001503249. It was stated that the Mediclaim Policy was operative from 16.8.2007 to 15.8.2008. On 16.8.2007, the complainant suffered pain in the chest and, as such, he was admitted in the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter to be called as PGIMER). He was diagnosed as suffering from heart disease. Therefore, he had to undergo the process of Angioplasty, on the same day i.e. on 16.8.2007 itself, for which he spent Rs.1,82,486/- and was discharged from the hospital on 18.8.2007. It was further stated that after getting treatment, the complainant took sometime, in recuperating and, thereafter, he lodged his claim for reimbursement of the above expenses, with OPs No.1 and 2, well in time, but the claim was repudiated by them, on the ground, that it was not lodged within 30 days, from the date of discharge from the hospital and that it should have been filed through OP No.3.  It was further stated that earlier complaint No. 445 of 2008 regarding the subject matter, was filed in  the Forum, which was allowed vide order dated 24.12.2008 wherein certain directions were given to the OPs.  It was further stated that after receipt of the certified copy of the order dated 24.12.2008, and in terms of the directions of the District Forum, the complainant again submitted his claim and supplied all the relevant information and documents to OPs No.1 and 2. OPs No.1 and 2 again asked for some more information vide letter dated 28.1.2009, even though, he duly forwarded his reply and clarification vide letter dated 3.2.2009. However, the OPs failed to respond to the just and legal claim of the complainant.  It was further stated that the abovesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         None appeared, on behalf of OP No.3, despite service. Hence, OP No.3 was proceeded against ex-parte. 

4.         Reply was filed by OPs No.1 & 2 wherein factual matrix of the case was admitted. It was stated that that the coverage was subject to the terms and conditions of the policy, wherein the said disease was not covered under the insurance perils for the first 30 days of commencement of policy. It was denied that the complainant was diagnosed, as suffering from heart disease on 16.8.2007 for the first time. It was further stated that the complainant was suffering from complaint of shortness of breath and angina on exertion for the last 3 years prior to 16.8.2007. It was admitted that some of the documents were submitted by the complainant. The answering OPs had also written a letter dated 2.1.2009 requesting the complainant to submit the complete documents but the same were not submitted by him. It was further stated that the complainant was suffering from pre-existing disease. It was further stated that, thus, the case of the complainant falls under the Exclusion Clauses 4.1 & 4.2 of the policy when the cover first incepted. It was further stated that as such, the claim of the complainant was legally and validly repudiated by the OPs. It was further stated that there was no deficiency, in service, on the part of the answering OPs, nor they indulged into unfair trade practice.

5.         The parties led evidence, in support of their case.

6.       The learned District Forum, dismissed the complaint, in the manner, referred to, in the opening para of the order.  

7.            Aggrieved by the order, passed by the learned District Forum, the appellant/complainant, has filed the instant appeal.  

8.         We have heard the learned Counsel for the parties, and have perused the evidence and record of the care carefully.

9.       The appellant contended that the learned District Forum without appreciating the facts circumstances, and evidence, on record, as also law, on the point, committed a grave error, in dismissing the complaint. It was further contended by him that the perusal of his medical record would show that the ailment for which, he had taken treatment three years ago had become normal, in as much, as, he had even stopped taking medication for that problem and no misstatement was made by him at the time of taking policy nor any such declaration was obtained by the OPs. It was further submitted that the appellant was not subjected to medical examination before issuing the policy. It was further submitted by the appellant that he was not suffering from any pre-existing disease, as on 16.8.2007. It was further submitted that no Medical Board was constituted by the OPs that the complainant knew about the alleged pre-existing disease. It was further submitted that C-2, the medical record of the complainant, did not establish that he was suffering from any pre-existing disease. It was further submitted that the order of the District Forum, being illegal is liable to be set aside.

10.       The learned Counsel for respondents/OPs No.1 and 2, contended that  coverage was subject to the terms and conditions of the policy, wherein the said disease was not covered under the insurance perils, for the first 30 days of commencement of the policy. It was further contended that documents were forwarded by the complainant vide letter dated 3.2.2010, wherefrom, it was found that he was suffering from shortness of breath and angina on exertion for the last 3 years prior to 16.8.2007, and was treated for the same. It was further contended that since the complainant was suffering from pre-existing disease, claim was rightly repudiated by invoking the Exclusion Clauses 4.1 and 4.2 of the Policy. 

11.       It is an admitted fact that the appellant/complainant was admitted in PGIMER, Chandigarh on 16.8.2007, as he was suffering from pain in the chest, where after investigation, he was diagnosed as suffering from heart disease and Angioplasty was done by a team of doctors. At the time of discharge on 18.8.2007, a discharge summary and follow-up card was issued by the PGIMER, Chandigarh (Annexure C-2). In Annexure C-2 the treating doctor specifically mentioned about the history, which was given by the complainant himself, that he was suffering from SOB i.e. Shortness of Breath and AOE i.e. Angina on exertion, for the last 3 years and had taken treatment for the same but left medication, after one and a half year.  Thus, it is clear from the Discharge Summary and follow-up Card Annexure C-2 that the complainant was suffering from pre-existing disease referred to above 3 years prior to his admission on 16.8.2007. It means that the complainant was well aware of the symptoms/existence of disease, prior to the taking of this Insurance Policy Clauses 4.1 and 4.2 of the terms and conditions of the Policy read as under.

“POLICY EXCLUSIONS

The Company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following :

1.     Pre-existing diseases/illness/injury/conditions – All diseases, illnesses, injuries/conditions which are pre-existing when the cover incepts for the first time. However, this Policy shall provide for payment of hospitalization expenses for treatment relating to pre-existing diseases, illness, injury from the 3^rd year of the Policy after two continuous renewals or from the 5^th year of this Policy after 4 continuous renewals, as the case may be, subject to the plan opted.

2.     Medical expenses incurred for treatment undertaken for disease or illness and/or for critical illness within 30 days of the inception date of this Policy. This exclusion doesn’t apply for Insured/Insured person having any health insurance policy in India at least for 1 year prior to taking this policy as well as for subsequent renewals with the Company without a break.”

The parties are bound by the terms and conditions of the policy. Since, the complainant was suffering from pre-existing disease, at the time of taking policy, his case fell within the aforesaid exclusionary clauses. The claim of the complainant was, thus, legally and validly repudiated by the OPs, vide letter Annexure C-7.

12.       The next question,  that arises for consideration, is, as to whether Annexure C-2 Discharge-cum-follow up Card, issued by the PGIMER, in relation to the complainant, without any affidavit(s) of the treating doctor(s), could be relied upon to come to the conclusion that he (complainant) was suffering from a pre-existing disease. In Satwant Kaur Sandhu Vs. Assurance Co. Limited IV (2009) CPJ 8 (SC), a similar question fell  for decision before the Hon’ble Supreme Court. In that case, only the medical record of the insured was produced and the affidavit of the doctor who treated him or prepared the record was not produced. The Apex Court held that even in the absence of the affidavit of the doctor who treated the insured, the record prepared by him, could be relied upon, to come to the conclusion that he (insured) concealed the material facts or suffered from some pre-existing disease. As stated above, the complainant himself gave the history of his pre-existing disease, which was recovered in C-2, by the doctor. In view of the principle of law laid down, in Satwant Kaur Sandhu’s Case (Supra)  by the Hon’ble Apex Court, it is held that the medical record of the insured, even in the absence of the affidavit of the treating doctor, can be taken into consideration, for ascertaining, as to whether, he was suffering from any pre-existing disease or concealed the material facts, when the policy first incepted. The District Forum was, thus, right in replying upon C-2.

13.       The appellant, however relied upon M/s IFFCO Tokio General Insurance Co. Ltd., Gurgaon Vs. Permanent Lok Adalat (Public Utility Services) Gurgaon & Ors. C.W.P. No. 7874 of 2011,  decided on 4.5.2011, by the Punjab and Haryana High Court, New India Assurance Co. Ltd. Vs. Harbans Singh (IV (2007) CPJ 182(NC) , National Insurance Co. Ltd. Vs. Sardar Kulbir Singh III(2010) CPJ 276 (NC),  New India Assurance Co. Ltd. Vs. Kashinath Balmukund Marwadi (2008 (2) CPC 450 (N.C.) ,  National Insurance Co. Ltd. Vs. Dr.R.K.Keswani (1991 CPC 686 (SCDRC Haryana)  and New India Assurance Co. Ltd. Vs. Tarsem Chand (2005 (1) CPC 230 (SCDRC UT Chandigarh,  to contend that in the absence of the affidavit(s) of the treating doctor(s) C-2 Discharge-cum-follow up Card could not be relied upon to come to the conclusion that he was suffering from pre-existing disease, and, as such his claim fell within the exclusionary clause. In M/s IFFCO Tokio General Insurance Co. Ltd.’s case (supra),  it was held that, it was for the Insurance Company to see and not to issue a policy where they find that such person was not entitled to claim on account of treatment of the pre-existing disease. In that case the petitioner had been paying premium for the last three years. It was observed that the insured may be suffering from the disease since 2002, but need to seek treatment arose only in 2010. It was further observed that one would not take medi-claim policy just for the sake of paying premium. Under these circumstances, the repudiation of claim of the insured by the Insurance Company was held to be illegal. In National Insurance Co. Ltd. Vs. Dr.R.K.Keswani’s case (supra), the claim of the insured was held not to be falling within the ambit of exclusionary clause of Policy and hence the repudiation by the company was held to be invalid. The facts of these cases, are distinguishable, from the facts of the instant case. In the remaining cases, referred to, in this paragraph, repudiation of claim of the insured by the Insurance Company was held to be invalid, on the grounds, that either the medical record had not been produced or the doctor(s) who treated the insured was/were not examined to prove his medical record. In these circumstances, it was held that mere production of medical record, without proof thereof, on the basis of evidence, could not be relied upon to come to the conclusion, that the insured was either suffering from some pre-existing disease or concealed the material facts. In the instant case,  as stated above, on the very day i.e. 16.8.2007, when the policy incepted, the insured felt chest pain and was admitted in PGIMER. He was diagnosed as suffering from heart disease and angioplasty was done on the same day. It was in the Discharge-cum-follow up Card C-2 that the complainant gave the history of previous disease (shortness of breath and Angina on exertion). He also stated that he had been suffering from the same for the last three years and was under medication for 1 ½ years, whereafter, he left the medication. In these circumstances, the Insurance Company came to know about the pre-existing disease of the complainant much after the issuance of the policy dated 16.8.2007. Not only this, in view of the principle of law laid down in Satwant Kaur Sandhu’s case (supra) decided by the Hon’ble Apex Court, any principle of law laid down, to the contrary, in the cases, relied upon by the appellant, on the same point, by the Hon’ble National Commission, and the State Commission, shall not hold the field. No help, therefore, can be drawn by the appellant from these cases. The submission of the appellant, being without any merit, is rejected.

14.       The order of the District Forum does not suffer from any illegality, on perversity, warranting the interference of this Commission.

15.       For the reasons recorded above, the appeal being devoid of merits is dismissed, with no order as to costs. The order of the District Forum is upheld.   

16.            Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

15^th July, 2011.