DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAPURTHALA Building No. b-XVII-23, 1st Floor, fatch Bazar, Opp. Old Hospital, Amritsar Road, Kapurthala consumer case(CC) No. CC/08/19
Sh.Daljit Kumar
...........Appellant(s)
Vs.
National Ins.Co.
...........Respondent(s)
BEFORE:
1. A.K.SHARMA 2. Surinder Mittal
Complainant(s)/Appellant(s):
1. Sh.Daljit Kumar
OppositeParty/Respondent(s):
1. National Ins.Co.
OppositeParty/Respondent(s):
1. Sh.Vinay Garg,Advocate
OppositeParty/Respondent(s):
ORDER
8. Now adverting to the exclusion clause-4 of mediclaim policy Ex.OP3 which stipulates that
"4.0 Insurance Company shall not be liable
in to make any payment under this policy in
respect of any expenses whatsoever incurred
by any insured person in connection with or
in respect of ;
(4.1) all diseases/injuries which are pre-existing
when this cover incepts for the first time.
(4 2) any disease other than those stated in clause 4
contracted by any insured person during the first
30 days from the commencement date of the policy.
The exclusion shall not however, apply if in the opinion
of Panel of Mediclaim Practitioners constituted by
the Company for the purpose, the Insured Person
could not have known of the existence of the
Disease or any symptoms or complaints thereof at
the time of making the proposal for insurance to the
Company. The condition 4.2 shall not, however, apply
in ease of the Insured Person having been covered under
this scheme or group insurance scheme with any of
the Indian Insurance Companies for a continuous period
of preceding 12 months without any break,
(4.3) During the first year of the operation of insurance
cover, the expenses on treatment of disease such
as Contract, Begin Pro static Hypertrophy,
Hysterectomy for Menorrhegia or Fibromiom,
Hernia. Hydrocele, Congenital internal disease
Fistula. Annus Piles, Sinusitis, and related disorders
are not payable if these disease are pre-existing at the
time of proposal, they will not be covered even during
subsequent period of renewal too. "
9. It is also pertinent to refer to the note below the Exclusion clause 4.1 and 4.2 that "clauses 4.1. and 4.2 would not apply if in the opinion of medical practitioner appointed by the Insurance Company, the insured person could not have known of the existence of the disease or any symptom on the complainant thereof at the time of taking proposal for the insurance from the Company."
10. Learned counsel for the opposite party has contended that discharge summary Ex.OP2 of Fortis hospital reveals that complainant was known case of K/C/O hypertension X4YTS ( on regular medication) K/C/O diabetes Mellitus type 2 X 12 years ( on oral drugs) when he was firstly hospitalized and angiography was performed in Shriram hospital vide Ex.C5 on 3/2/2007. "his RCA is large-dominant vessel and shows long 90% stenosis from proximal to mid segment . Distal RCA is seen filling anterogradely & retrogradely by collaterals. Subsequently, resume of history and past history further confirmed symptoms of pre-existing heart disease. about his breathlessness on exertion for 2-3 years and also K/C/O and thus perfectly deserves to be repudiated under clause 4.1 of the Exclusion clause of mediclaim insurance policy on account of his act of deliberate concealment. In our considered opinion, opposite party Insurance Company appears to have been swayed with the words mentioned in the resume history of Fortis hospital "patient had C/o breathlessness on exertion for 2-3 years for which he went to a hospital at Jalandhar where a coronary angiography was done which revealed tripple vessel disease. He then came to Fortis hospital for evaluation and further management. and the past history of the patient as referred to therein without support of any medical record of complainant of having been diagnosed or medically treated by any physician. We cannot be oblivious of this fact that complainant had been taking hospitalization and domiciliary hospitalization policy from the opposite party Insurance Company from 3/9/03 to 2/9/04 and also from 28/3/2005 to 27//2006 not specifically denied by the Insurance Company. We do not find any evidence produced by the Insurance Company which may disclose his pre-existing disease and that complainant treated for DM 2-12 years on oral drugs. The word 'existing' means the disease which exists at the time of taking the policy and the Insurance Company should have been ensured that the person in whose favour the policy was being revived/renewed was entitled to the same or not and failure to which indicates contributory negligence on the part of Insurance Company. Insurance Company has utterly failed to bring on record any evidence to show that complainant ever remained admitted in any hospital in India for taking medical treatment for the alleged DM disease with CAD. He was proved to be hospitalized for the first time in Shriram hospital for performing angiography test and later on bypass surgery of heart in Fortis hospital during the insurance period. . No sanctity can be attached to the observations recorded in resume of history or past history of the patient recorded in Ex.OP2 by the doctor because neither affidavit of treating doctor nor past medical record of the patient suffering from any pre-existing heart disease produced nor even complainant claimed any amount from the Insurance Company for alleged medical treatment during the period from Sept. 2003 to March 2006. So repudiation of claim of the complainant on the basis of condition No. 4.0 of exclusion clause of the insurance policy Ex.OP3 is arbitrary and unjustified on the part of Insurance Company. Reliance is also placed upon a case of Hon'ble State Commission reported as 2006 CTJ 903 Oriental Insurance Company Ltd. vs. Chain Singh and another in which it was clearly held that :
"The Insurance Company is well within the right to
repudiate a mediclaim if it can show that the
disease was pre-existing at the time of incept of the
initial mediclaim policy, if it cannot so show , the
repudiation of the claim will be wrong."
11. It is further pertinent to state that no such opinion was ever taken by the Insurance Company from their appointed doctor as envisaged under exclusion clause 4.1 and 4.2 that insured could have known of the existence of the disease or any symptoms of the heart disease of the complainant at the time of taking the proposal for insurance. Under clause (b) of the note, it is further envisaged that if insured had not taken any consultation, treatment or medication in respect of hospitalisation then clause 4.1 did not apply. As already observed, Insurance Company has miserably failed to substantiate the allegation of alleged pre-existting DM disease by any credible evidence of past medical diagnose/medical treatment of K/C/O hypertension X4YTS ( on regular medication) K/C/O diabetes Mellitus type 2 X 12 years ( on oral drugs) prior to his admission for the first time in Shriram hospital on 3/2/2007 and subsequently in the Fortis hospital from 12/2/2007 to 21/2/2007. Admittedly neither
Dr.V.P. Sharma of Shriram hospital nor any treating doctor of Fortis hospital Mohali had ever diagnosed or treated complainant prior to his first time hospitalization . Therefore, observations in the discharge summary without corroborated by any past medical record does not carry any evidentiary value .
12. Complainant has been able to produce medical expenses of Rs. 2,02,523/- on medical treatment i.e. angiography and bypass surgery of heart vide bills Ex.C10 and Ex.C7 to which he is legally entitled to reimbursement of his medicalim under the terms and conditions of the insurance policy Ex.OP3. The repudiation letter dated 11/4/2007 Ex.OP1 clearly amounts to deficiency in service on the part of oppoiste party. .
In the ultimate analysis of aforesaid discusion, we accept the complaint and direct the opposite party to pay mediclaim amounting to Rs.2,02,523/- to the complainant with interest @ 9% p.a. from the date of repudiation till realisation with direction to pay Rs. 5000/- as monetary compensation for deficiency in service and cost of litigation to the tune of Rs. 1000/- within one month from the receipt of copy of this order.
Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.
Announced : ( Surinder Mittal ) ( A.K. Sharma )
17-7-2008 Member President.
