Sri Shyamal Gupta, Member.
This appeal is directed against the judgment dated 22.07.2016 of the Ld. DCDRC, Kolkata—II (Central) passed in CC/587/2015 by the Appellant/OP.
The fact of the Complaint’s Case in brief is that
he purchased a policy from TATA AIG GIC Ltd. (OP1) through Kotak Mohindra Bank(OP2), the corporate agent of OP1. He was a holder of TATA AIG Mediclaim Policy bearing No.0200154436. Validity of the policy was from 09-03-2014 to midnight of 08-03-2015. Smt. Shweta Chablani was amongst the insured persons of the said policy in question. She was diagnosed of breast cancer (left breast) in March, 2014 and was treated at Tata Medical Centre at Rajarhat Kolkata for the period from 24-04-2014 to 26-04-2014. Lumpectomy was done on 25-04-2014. On 24-04-2014 the complainant applied for cashless facilities through Tata Medical Centre but he was refused cashless hospitalization by the insurance company. Complainant submitted his claim for reimbursement of hospitalization bill of the tune of Rs.96,510/- to the corporate agent of insurance company on 30-05-2014 for onward transmission to OP Insurance Company. The insurance company informed the complainant that they had terminated the policy for non-disclosure of facts. The complainant informed the insurance company that the decision of the insurance company is not acceptable by mail dated 23-08-2014. The instance company did not settle the issue.
On the other hand OP-1 alleged that
the Complainant had a lump in the breast in the year 2009. It is also alleged that the OP decline to entertain the claim as the same was pre-existing as the complainant’s wife had pre-existing disease and before the inception of the policy. It is submitted that the pre-existing diseases are excluded from the terms and condition of the policy. It is submitted that the complainant has not disclosed the details at the time of taking the policy.
Before allowing the complaint petition, Ld. DCDRC observed as follows:-
“From the medical papers we find that lump for the first time of the patient was detected in February, 2009 in the right breast and that was diagnosed at Fybro Cysts. Fibroids are as we know are harmless and ultimately it was diagnosed as benign breast cyst. It also appears that in October, 2014, lump re-appeared in the right breast just as in the year 2009 and tests were repeated and diagnosed as benign cyst.
In March 2014 as we find lump was detected in the left breast and it was diagnosed malignant and Smt. Shweta was treated for the same under Dr. Roshina Ahmed (Breast Surgeon) and Dr. Sanjay Chatterjee (Chemotherapy and Radiation) at Tata Medical Centre from 31-03-2014 to December, 2014. We find that the lump effected in April 2009 and November, 2009 were non cancerous and that did not require any treatment. We think that it was, therefore, cannot be said as a pre-existing illness. The benign cyst in the right breast detected twice in 2009, we think, had no nexus or connection with the malignant lump detected in left breast in March, 2014. So, in our considered opinion, cyst in right breast should not be considered as pre-existing disease.
We think merely an existence of a disease will not confer any right on the insurance company to repudiate the claim. It has not been established from any medical opinion that the pre-existing disease was the cause for the subsequent disease for which the treatment was taken in March, 2014. There is no evidence at all in scientific literature that breast cysts are a cause of breast cancer and we do not think that there is any connection between the two.”
Heard both sides at length and perused the BNAs filed by them.
The core issue is to be decided in this Appeal is whether there is any pre-existing disease or not.
In this regard, Appellant failed to show any iota of evidence that there is “Breast Cancer” disease and the same was not disclosed in proposal form by Complainant. On the other hand, Appellant submitted that insurance Company already paid Rs.75,000/- to the insured out of Rs.96,510/-.
Perused the case history of Shweta Chablani as well as the Doctor’s letter (Annexure 5+6). Perused also the relevant case laws over the mater in
- 2013 (3) C.P.R. 697
- 2006 (4) C.P.J. 189
- 2008 (1) C.P.J. 501
- 2012 (1) C.P.J. 84
- 2012 (4) C.P.J. 646
- 2007 (3) C.P.J. 34
Further, Hon’ble Apex Court in LIC of India—Vs—Asha Goel [(2001) 2 SCC 160] observed as follows:-
“For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”
Considering the entire panorama and keeping an eye upon the Apex Court observation, I am of the view that there is no need to interfere in the order passed by Ld. DCDRC. Hence, the instant Appeal is dismissed. The impugned order of the DCDRC is hereby affirmed with a cost of Rs.25,000/- being payable by the Appellant to the Respondent/Complainant.
