IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 12.09.2014

First Appeal- 204/2009

(Arising out of the order dated 13.02.2009 passed in Complainant Case No. 159/2007 passed by District Consumer Disputes Redressal Forum, Old Civil Supply Building, Tis Hazari, Delhi)

In the matter of:

R.C.Rastogi

14/197, First Floor

Malviya Nagar,

New Delhi-110017            ………….Appellant

Versus

M/s Oriental Insurance Company Ltd.
Oriental House, P.B.No. 7037

A-25/27, Asaf Ali Road,

New Delhi-110002           ……….Respondent

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

JUDGEMENT

1.      This is an appeal under Section 15 of the Consumer Protection Act 1986 (in short the Act) filed against the order dt. 13.02.2009 passed by the District Forum (North) Old Civil Line Building Tis Hazari, Delhi in complaint Case No. 159/2007 awarding a sum of Rs. 3,00,000/- (Rs. Three Lac Only).
2.      Relevant facts of the case are that complainant/appellant has taken an insurance policy bearing No. 212703/48/2006/1516 for the period of 13.02.2006 to 12.02.2007 for Rs. 3 Lac (Rs. Three Lakh Only) covering himself and his wife. He has been taking medi-claim insurance policies for the last 5-6 years.  It was stated in the complaint that during second week of February 2006, Mrs. Sudhanshu Rastogi the wife of the complainant/appellant was found to be suffering from ‘Carcinoma’ (Breast Cancer) she remained hospitalised for about seven months in various hospitals, and also underwent surgery for removal of the Tumour, she also received chemotherapy and radiotherapy to prevent spread of the disease to other parts of the body.  She had to spend a sum of Rs. 3,66,113/- in her treatment and therefore complainant/appellant made an insurance claim for a sum of Rs. 3,45,000/-, the maximum sum insured/covered under the policy.  However, through letter dt. 09.11.2006, the claim of the complainant was repudiated on the ground that discharge summary of Rajiv Gandhi Cancer Institute and Research Centre where complainant was treated disclosed the right nipple discharge of seven years duration and lump in right breast. From this an inference was drawn by the TPA/Insurance company that she was suffering from pre-existing decease.  In view of the repudiation of the insurance company complainant was compelled to file a consumer complaint claiming Rs. 3,45,000/- as expenses incurred in her treatment, with interest @ 18% besides compensation (Rs. 20,000/-) and costs (Rs. 10,000/-). 
3.      In its reply OP pleaded that there was no deficiency of service on the part of the OP/respondent and the complaint was not maintainable.  It was admitted that a medi-claim insurance policy bearing No. 212703/48/2006/1516 was obtained by the complainant for himself and his wife for a period of one year from 13.02.2006 to 12.02.2007.  During the subsistence of the policy a claim for Rs. 3,45,000/- was filed.  It was referred to TPA M/s Genius India Ltd.  The TPA after examine the medical documents filed by the complainant came to the conclusion that wife of the complainant/appellant was suffering from pre-existing disease which existed even before inception of the insurance policy, the claim was squarely covered under the exclusion clause 4.1 of the terms and conditions of the policy.  Hence, the claim was inadmissible and was repudiated.  A representation for reconsideration was again placed before the TPA which turned down the request.
4.      The complainant filed rejoinder, denying the allegations of the reply and reiterating the assertion made in the complaint.  Parties led evidence through affidavit. Upon consideration of evidence on record, the Ld. District Forum came to the conclusion that there was deficiency of service committed on the part of the insurance company.  It gave benefit of doubt to the complainant and decreed the complaint for a sum of Rs. 3 Lac against the OP/respondent.
5.      However, complainant/appellant was dissatisfied and preferred this appeal.  It was alleged that through impugned order dt. 13.09.2009, the Ld. District Forum allowed the complaint to the extent only Rs. 3 Lac as against applicable amount of Rs. 3,45,000/-.  Further it failed to allow any interest, compensation and costs of litigation.  While passing the impugned order the Ld. District Forum ignored critical evidence placed on record, the hospital record, discharge summary and various other documents.  The totality of evidence on record amply proved that the existing disease was not pre-existing disease; the Ld. District Fora clearly ignored the fact that had a problem been caused since last seven years, the patient could not have had an event free and healthy life during the last seven years.  The expert evidence brought on record also lent substantial support to the case of the complainant/appellant.  The evidence clearly expressed that a discharge from nipple is rarely the cause of cancer or indicative of malignancy.  Rejection of the insurance claim was therefore a clear deficiency in service as the insurance company/its TPA were bent upon rejecting the claim on one pretext or the other.  The Ld. District Forum ought to have held that the claim of the appellant was wrongly rejected for malafide considerations.  The appellant was entitled for reimbursement of the money spent in hospitalisation/treatment.  Besides, the Ld. District Forum ought to have allowed the appellant interest @ 18% p.a. from the date of hospitalisation until realisation.  The District Forum ought to have also allowed compensation and the costs.
6.      The judgment was therefore, erroneous to this extent and needs modification.  The OP/respondent participated in the proceedings of the appeal but did not file any reply.
7.      We have heard Sh. K.R.Pamie, Counsel for the Appellant and Ms. Nupur Sehgal, Counsel for the Respondent.
8.      It was argued by the Ld. Counsel for the appellant/complainant that the Ld. District Forum ought to have allowed Rs. 45,000/- towards bonus along with Rs. 3 Lac awarded towards expenses which was maximum sum provided under the policy.  Besides the Ld. District Forum failed to award any compensation and the costs. 
9.      On the other hand Ms. Nupur Sehgal argued that discharge summary of the Rajiv Gandhi Cancer Institute and Research Centre has clearly stated that Mrs. Sudhanshu Rastogi aged 59 years was admitted with c/o Rt. Nipple discharge of seven years duration and lump in right breast.  The ailment was thus existing well before inception of the medi-claim policy.  This policy was initially issued to the complainant/appellant for the period 13.02.2001 to 12.02.2002, the TPA therefore recommended that the claim was inadmissible as per exclusion clause 4.1 of the terms and conditions of the insurance policy.  Thus the wife of the complainant/appellant was suffering from pre-existing decease, the claim was not admissible and was rightly repudiated, there was no deficiency of service of any kind on the part of the OP/respondent.  The appeal was wholly incompetent and liable to be dismissed.  She further argued that a sum of Rs. 3 Lac which is total sum insured has already been paid to the complainant/appellant and the amount has been accepted without any objection.  The order of the District Forum has been fully complied with also.
10. It has not been disputed by the Ld. Counsel for the appellant that insurance company has already paid a sum of Rs. 3 Lac in compliance of the order dt. 13.02.2009 passed by the District Forum in Complaint Case No-159/2007. There is no evidence on record to show that this amount was received under protest rather it has been accepted without any objection.  The appeal has therefore become infructuous and is liable to be rejected without entering into any further merit of the case.  The appeal is accordingly rejected.

11)        Let a copy of the order be made available to the parties free of cost as per rule and thereafter file be consigned to record room.