27-04-2015 - The reasons for delay in disposal of this appeal can be seen from the order sheets.

1.     Heard the parties on the prayer for condoning the delay of about 9 weeks in filing this appeal.

2.       On being satisfied with grounds, the delay is condoned.

           On merits

3.       Mr. Ashutosh Anand, learned counsel appearing for the O.P.2- appellant- (Insurance Company for short) assailed the impugned order on various grounds and submitted that the Mediclaim was rightly repudiated on the ground of pre-existing disease. He also submitted that the amount of compensation, litigation cost and penal interest are on much higher side.  He also submitted that the Mediclaim was repudiated on recommendation of TPA but it was not made party in the complaint case.

4.       On the other hand, learned counsel appearing for the complainant-R-1 supported the impugned order. Learned counsel for the O.P.1- R.2 – State Bank of India submitted that no order has been passed against the Bank and the Bank has nothing to do with the Insurance claim in question.

5.       The complainant got a Mediclaim Insurance Policy from the Insurance Company in favour of his father for Rs. 1 lacs with effect from 15.3.2006. In the first week of April 2007 his father felt sudden pain in his abdomen. He consulted the Doctors. He was admitted in hospital. He was shifted to one after the other hospital, as he had no relief.  He was rushed to C.M.C. Vellore. Then he was taken to the Asian Institute of Gastroenterology, Hyderabad, (AIG for short).  In the meantime the Insurance Company instructed for renewal of the policy, which was renewed till 2008.

According to the complainant, the insured developed abdominal pain during the policy.  He made Mediclaim of Rs. 2,25,937/- against the expenses incurred in treatment which was received by the Insurance Company on 5.7.2007, but it was rejected on the ground of pre-existing disease.

 6.      The case of the Insurance Company in short was as follows.  The insured had suffered from “Mass lesion in Pancreatic Head with Gastric Outlet and Biliary obstruction- Diabetes Mellitus.” and was hospitalized in AIG, Hyderabad from 25.05.07 to 04.06.07 for “Triple Bypass + FNAC from Head Mass”. The claim was forwarded to the Doctors of TPA, who opined as follows: “Hard mass in the Pancreatic could not have developed over 10 months time. Moreover he had history of similar pains 2 years back which was present in cahless documents. Ailment is pre-existing. Hence the claim is not admissible and not payable.”  Further it also appeared from the discharge summary dated 14.6.2007 that the insured had jaundice since one month along with indigestion with nausea for past 20 days. He had undergone Cholecystectomy in the past which was reported in the operative findings about the hard mass lesion. A certificate of one of Doctor K. Jothinathan was filed to show that Chronic Pancreatic, is complication of Gall Bladder disease and if previous surgery is not covered, then this was a pre-existing disease.

Thus, according to the Insurance Company, the present illness was a complication of the above pre-existing disease and therefore the Mediclaim was rightly repudiated.

7.       The learned District Forum concluded that the ailment of pancreas of the insured was not a pre-existing disease and therefore the Insurance Company committed deficiency in service by repudiating the Mediclaim. Accordingly the Insurance Company was directed to pay the insured value i.e. Rs. 1 lac along with compensation of Rs. 1 lac and litigation cost of Rs. 10,000/- to the complainant within 60 days of the order, failing which the Insurance Company was made liable to pay penal interest @ 18% p.a. from the date of repudiation of claim i.e. 5.7.2007 till realization.

8.       The submission regarding non impleadment of TPA is not acceptable, as no such objection was raised in the reply version filed by the Insurance Company.

9.       Admittedly, the insured was covered by the Mediclaim policy during which he felt pain in his abdomen. Inspite of consulting several Doctors and getting admitted in the several hospitals one after the other, he had no relief and ultimately after several investigations  diagnosis could be done in which it was found that there was Hard mass in the pancreatic.  For such decease he was treated and cured. The complainant submitted the bills of medical expenses. It is clear that even the reputed hospitals could not diagnose the disease. Ultimately at the AIG, Hyderabad diagnosis was done. Therefore it cannot be said that the insured had any pre-existing disease or he knew about it at the time of taking the policy.

10.     It appears that there was a history of Cholecystectomy (Gall bladder surgery) undergone by the insured two years back from which he was cured. The purported opinion of TPA that such Hard Mass could not develop in 10 months was not supported by any medical literature or opinion of expert medical scientist.

          Further the Opinion of Doctor K. Jyohinathan is also not reliable as the same is unsupported by any dependable authority or opinion by medical scientist.

11.     After hearing the parities and going through the material brought on the record by them, we are satisfied that the Insurance Company-appellant could not prove that the insured had pre-existing disease and therefore, it committed deficiency in service in repudiating the Mediclaim. Thus we find no merit in this appeal.

12.     However, we modify the operative portion of the impugned order to the following extent. The Insurance Company is directed to pay the insured amount of Rs. 1 lac along with compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the complainant within 60 days of passing of this order, failing which the Insurance Company shall be liable to pay penal interest @ 15% p.a. from the date of this order till the payment/ realization.

          This appeal thus stands disposed off.

This matter was heard by the bench consisting of the President and the Member Mr. Ajit Kumar.  After the order was dictated with his consent, Mr. Ajit Kumar had to rush to Bombay for treatment of cancer.  He informed that he may not be available for about a month.  Therefore this order is being pronounced and signed by the President,  Keeping in view the judgement of Hon’ble Kerala High Court dated 25.02.2013, passed in W.P. (C) No.30939 of 2010 (N) - P.K. Jose - vs - M. Aby & Ors.

                   Issue free copy of this order to all concerned for information and needful.

          Ranchi,

          Dated:- 27-04-2015