ORAL ORDER
Per Hon’ble Mr.Justice S.B.Mhase, President
Heard Mr.A.S.Vidyarthi-Advocate for the appellant.
This appeal takes an exception to an order passed by Additional District Forum, Pune in consumer complaint no.161/2011 decided on 09/05/2012. By this order the appellant/Insurance company is directed to pay an amount of `2,70,000/- within 30 days from the date of the order otherwise, appellant is further directed to pay interest @ 12% p.a. from the date of the order. By way of mental agony and harassment the appellant is directed to pay `25,000/- and expenses of the litigation were directed to be paid i.e. `3,000/-. Being aggrieved by this order, Insurance Company has preferred this appeal. Following facts are not in dispute:-
Complainant/respondent has taken an insurance policy from the appellant/opponent and the said policy was for a period from 29/04/2010 to 28/04/2011. It was/is a mediclaim policy for `3,00,000/-. During the existence of the said policy it appears that on or about 12/07/2010, the opponent/complainant started to suffer from a problem of swelling of knees, weakness, etc. and, therefore, the complainant was examined and it was diagnosed that the valve of the heart of the complainant is not properly working and, therefore, operation was necessary. On such diagnosis, on 22/07/2010 to 29/07/2010 the complainant was hospitalized with Ruby Hall Nursing Home, Pune and was operated for a replacement of the valve. Complainant suffered expenditure of `2,70,000/- and, therefore, the claim was lodged with the Insurance Company. However, Insurance Company by letter dated 18/12/2010 repudiated the claim contending that it is a pre-existing disease. Therefore, consumer complaint is filed.
In order to substantiate contention of the pre-existing disease it appears that the Insurance company/appellant has taken an advice of Dr.M. Balasubramanian. Said doctor after examining the documents submitted by the complainant i.e. reports of echocardiogram and colour Doppler had opined that it suggests of unicuspid aortic valve, which is a congenital condition. He has further opined that echo also shows severe LVH and moderate pulmonary hypertension, which is strongly suggestive of long standing illness i.e. Pre Existing Disease and it takes at least 4-5 years for calcification of aortic valve. Such a severe calcific valvular disease is a long standing illness and can surely be picked up even during routine auscultation for minor illness like fever (loud systolic murmur) supportive of long standing pathology. Relying upon this material stand has been taken by the Insurance Company that it is a pre-existing disease and, therefore, his claim was repudiated. Ld.counsel very heavily relied upon this material and also a clause from the insurance policy in respect of pre-existing disease. He orally submitted that in a form which was submitted to the Insurance company as against any disease in respect of heart the complainant has stated ‘NO’ and, thus, the said fact has been suppressed by the complainant. However, that has become evident from the report of Dr.M. Balasubramanian.
The matter relates to the heart and the problems of heart. Therefore, the expert opinion which is required to be obtained, if at all, it shall be of the person who is an expertise in a heart viz. either a Surgeon who is doing surgery with the hearts and/or a Cardiologist. However, Dr.M. Balasubramanian whose affidavit has been placed on record cannot be said to be an expert in the matters of the heart. He is M.D. in Internal Medicine and is working as a Senior Physician at ApolloHospital, Chennai. Therefore, his opinion cannot be said to be an expert opinion for the purpose of analyzing whether disease was congenital disease or not. Apart from that in support of his opinion he has not produced any medical text upon which the said opinion is based. No doubt the expert evidence can be considered though it is not binding on courts or tribunals. The quasi judicial authorities are not bound by the expert evidence but they can independently come to the conclusion on the basis of the material placed on record but that calcification does not arise here in the present matter because Dr. M. Balasubramanian, though doctor is not an expert in respect of heart so as to give opinion that the valve problem was a congenital problem especially, in the background and circumstances doctors who performed the operation have not diagnosed the said disease as a congenital disease at any point of time till the operation was carried out. In fact, those doctors who have diagnosed and carried out replacement of the valve are the best person to state whether disease was congenital or not. Insurance company has not taken opinion of those doctors and/or opinion of some expertise persons dealing with the heart problems. Therefore, Dr.Balasubramanian’s report and his affidavit are of no consequence so far as present case is concerned.
Other very serious problem in respect of this Insurance Company is that though it is contented that it is a suppression of fact, however that can be only analyzed by production of proposal form. Proposal form in the present matter has not been produced by the Insurance Company before the District Forum and/or before the State Commission. In fact, whether there is suppression on the part of the complainant or not can be only proved by production of a proposal form and further by proving the fact that before submitting such proposal form fact of pre-existing disease was within the knowledge of the complainant. Only because he has stated in the proposal form that does not mean that it is a suppression of fact.
Further, Insurance Company is under obligation to prove and establish that fact was within the knowledge of the complainant and complainant has suppressed it from the Insurance Company. What is important in the present matter that Insurance Company is running a risk because insurance premium was accepted without carrying medical examination simply on the basis of proposal form. In fact, while issuing such insurance policy of such huge amount, it was obligatory for the Insurance Company to get the person like the complainant examined and after having satisfied that there are no pre-existing diseases to the complainant, they should have proceeded to insure him but they simply referred the proposal form and proceeded to issue insurance policy. They are at the risk and they have taken business risk knowing fully well that in a given circumstances they may be required to suffering. Subsequent summer salt is not permissible.
Third aspect which is required to be considered is that even though we have not relied upon expert opinion of Dr.M. Balasubramanian, however, Dr.Balasubramanian has explained that calcification has taken place in respect of said valve and the process of calcification requires at least 4-5 years period. That shows that the valve was not properly functioning because calcification material has gathered by the said of the valve and thereby there is disfunction. This process is like a process of blockage in the heart veins for which angiography, angioplasty or bypass surgery are carried out. In respect of valve, calcification process takes period of 4-5 years. Therefore, it cannot be said that it was a congenital disease i.e. a disease which was existing from the birth of the complainant but it is solely developed because of the calcification and, therefore, doctor’s own opinion and observations falsifies his case of calcification disease and, therefore, we do not rely upon observation and affidavit of Dr. M. Balasubramanian.
One more aspect is required to be considered. This insurance policy is for a period from 29/04/2010 to 28/04/2011. Exclusion clause has been relied upon by the Ld.Counsel Mr.Vidyarthi stating that under this policy for a period of 48 months the claim cannot be made and he has relied upon the following conditions from the cover note:-
The definition of ‘Pre-existing diseases’ stands amended as follows
“Exclusion no.1 –The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by any insured person in connection with or in respect of:
Pre Existing Diseases as defined in the policy until 48 consecutive months of continuous coverage have elapsed, since inception of the first policy with any Indian Insurer. However the limit of the Company’s liability in respect of Preexisting Diseases under such Portability shall be limited to the Sum Insured under previous policy/ies.”
It appears that this condition is modified and the modified condition is shown in the cover note, it is as follows:-
The Exclusion no.1 stands amended as follows:-
“Benefits Pre-Existing Diseases will not be available for any condition(s) as defined in the policy until 48 months of continuous coverage have elapsed since the inception of the first policy with the Company.”
On reading these conditions of exclusion, we find that these conditions are absolutely bad in law because the policy which has been issued is for a period of 12 months. After a period of 12 months complainant may renew the policy, may not renew the policy, he make take a policy from any other insurance company or he may not take any of the policy from any other company and there is no compulsion to take health or medical policy. Therefore, all the contractual rules must be governed for a period for which the policy period exists. Therefore, whatever condition of the policy they shall be applicable during one year i.e. policy period, if such policies which are before us taken into consideration then in any circumstances the parties are required to take policies continuously for years together or in order to get benefit party has to continue renewal of the policy for more than 48 months. Then he may get or he may not get the benefit. Such a condition cannot be imposed upon the consumer. Therefore, consumer who is interested in taking policy only for a period of one year will never get benefit of policy because condition impose condition of 48 months subsisting policy. Policy which contains condition beyond the period of policy period is a bad policy in law. On the contrary, on the face of it, it is an unexecutable policy and the benefits of the policy cannot be taken within the period of policy. In fact, if on the basis of premium if medical benefit is to be given that should be given during the period of policy. In fact such types of condition which frustrate claims of mediclaim of the complainant are bad in law. In fact these are unprofessional policies and unfair business policies and, therefore, such policies should not be encouraged. Contractual obligation of the parties is to be governed during the period of existence of policy. We do not accept the contention of the Ld.counsel for the appellant that since 48 months have not elapsed and he has incurred the expenses for that, Insurance company is not under obligation to satisfy the said mediclaim. Thus, what we find that the District Forum is right in passing the order. What we find is that there is no material to demonstrate that disease was pre-existing. What we find is that there is no material to show expert opinion on record, there is no material produced by way of a proposal form, that there is no suppression of fact, there is no record to demonstrate that fact of illness was within the knowledge of the complainant prior to taking of the insurance policy. There is report of Dr.M. Balasubramanian, who is not an expert in the subject matter and, lastly, we find that the conditions which are imposed by the insurance company are for a period, beyond the period of insurance which is an unfair trade practice. Under such insurance policies the claims of the insurance can be blanketly rejected because 48 months have not been completed. What we find, therefore, there is no substance in appeal. It is without any merit. Appeal is hereby rejected in limine.
Pronounced on 25th June, 2012.
