JUDGEMENT & ORDER
Per Mr. Justice P.K.Musahary, President
This appeal is preferred by the Opposite Party against the order dated 09.01.2007 passed in the C.C. No. 11 of 2006 by the learned District Consumer Dispute Redressal Forum, East Khasi Hills, Shillong (in short learned District Forum) whereby the complaint of the present Respondent was allowed directing the Appellant to pay Rs.1 Lakh only being the claim admissible under the Mediclaim Policy along with compensation of Rs.20,000/- towards deficiency in service and Rs.5,000/- towards legal cost with interest @ 8% p.a. w.e.f. 04.07.2003 i.e., three months of filing of claim till date of payment.
2. The short facts involved in this case are that the Respondent/Claimant took a Mediclaim Policy of Rs.1 lakh covering the risk of his family members including his minor son named Master Sandeep Kumar Sharma for the period commencing from 23.04.2002 to 22.04.2003. The Respondent’s said son fell ill and was admitted in the Escorts Heart Institute and Research Centre, New Delhi on 07.11.2002 and was discharged on 17.11.2002. The insured patient as per discharged summary was diagnosed with “Cyanotic Congenital heart disease”. The Respondent on 04.04.2003 claimed compensation of Rs.1 lakh under the Mediclaim Policy but the same was repudiated on 30.05.2005. The Respondent then approached the learned District Forum by filing the above Consumer case which was allowed as stated earlier.
3. The above facts are not in dispute. What is seriously in dispute, as contended by the Appellant, is that the disease which the insured patient was suffering from, was pre-existing since before the Mediclaim Policy was made and it comes under the exclusion clause 4.3 of the Policy in question and hence the Appellant is not at all liable to pay the compensation.
4. We have heard Mr. S.Jindal, learned counsel for the Appellant/Opposite Party and also Mr. S.P.Sharma, learned counsel for the Respondent/Claimant. We have also perused the records along with the pleadings of the parties and considered the submissions made by the learned counsel for both the parties.
5. The precise issue for decision is whether the claim of the Respondent falls under exclusion clause 4.3 contained in the policy (Annexure 1 to Memo of Appeal).The exclusion starts from clause 4 of the policy. Clauses 4.1 and 4.3 are relevant for deciding this case which are quoted hereunder for ready reference.
“ The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured person in connection with or respect of :
4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial Mediclaim Policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break.
4.3 During the first year of the operation of insurance cover, the expenses on treatment of diseases as cataract, benign prostatic hypertrophy, ectomy for menorrhagia or fibromyoma, hydrocele, congenital internal diseases, fistula in anus, piles ,sinusitis and related disorders payable. If these diseases (other than congenital internal disease) are pre-existing at the proposal they will not be covered even after subsequent period of renewal. If the insured is aware of the existing of congenital internal disease before inception of policy, the same may be treated as pre-existing. “
6. The hospital discharge summary (Annexure 2 to Memo of Appeal) is the most important document for our consideration which is also reproduced below for ready reference:-
“ESCORT HEART INSTITUTE AND RESEARCH CENTRE LTD.
OKHLA ROAD, NEW DELHI – 110025
Tele : 6825000
NAME OF PATIENT: MAST. SANDEEP KUMAR Age 8 YRS SEX: M
EHIRC NO : 189378 INPATIENT NO: 116394
DATE OF ADMISSION : 07.11.2002 (two months back, means 07.09.2002.Insurance Commended from 23.02.2002)
DATE OF DISCHARGED: 17.11.2002
CONSULTANT: DR. K.S. IYER/ DR. SAVITRI SHRIVASTAVA
DISCHARGE DIAGNOSIS
* Cyanotic congenital heart disease
* Severe Ebstein’s anamoly
* ASD right to left shunt
* Moderate PR
OPERATIVE PROCEDURES
Repair of Ebstein’s Anamoly + BD Glenn + Partial closure of ASD done on 11.11.2002.
RESUME OF HISTORY
Mast. Sandeep Kumar is an 8 year old male child who is a case of cyanotic congenital heart disease. Parents noticed cyanosis 2 months back and he also had easy fatigability and palpitation. There was no history suggestive of cyanotic spells. Child was investigated at Metro hospital last month and echo done there revealed ebstein’s anamoly. He was advised further investigations.
In view of his symptomatic status and Echo findings he was advised surgery.
WEIGHT ON ADMISSION : 15 KG WEIGHT ON DISCHARGE: 15 KG
All pre op blood and urine cultures – sterile “
7. The Hon’ble National Commission had an occasion to deal with a similar case in ‘National Insurance Company Ltd. Vrs Arun Kumar Goel, reported in 2011 CTJ 511 (C.P) (NCDRC)’. Paragraph 8 of the said judgement deals with the core issue and we consider that it would be befitting to quote the same hereunder:-
“Present claim is a direct result of the expenses incurred for the operation of ASD, Acyanotic Congenital Heart Disease performed at Sir Ganga Ram Hospital. As per clause 4.3 of the policy, the Company is not liable to make the payment in respect of any of expenses whatsoever incurred by any insured person in connection with or in respect of treatment on diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhegia or Fibromioma, Hernia, Hydrocele, Congenital Internal diseases, Fistula in anus, piles, sinusitis and related disorders during the first year of the operation of the insurance cover. As per discharge summary of Sir Ganga Ram Hospital diagnosis of the insured was “Acyanotic congenital heart disease” and was operated for “Pericardial path closure of ASD”. Congenital means from birth and heart disease would be internal disease which cannot be seen by naked eye. The insured was having internal heart disease right from birth and therefore, it would fall within the exclusion clause 4.3. The insured was suffering from “ acyanotic congenital heart disease” which he came to know in the first year of the policy. Parties to the contract of insurance are bound by the terms and conditions of the policy. Since the claim filed by the Respondent fell in the exclusion clause, Insurance Company was not liable to make the payment in terms of the exclusion clause 4.3 of the policy. Fora below have erred in taking the view to the contrary. Accordingly, the Revision Petition is allowed, the orders passed by the Fora below are set aside and complaint is dismissed. “
8. We have read and compared the exclusion clauses of National Insurance Company Ltd. with that of The Oriental Insurance Company Ltd. and found them almost similar. The facts of the instant case, except that the insured is a minor boy, are also similar. The Appellant’s son, also underwent ASD operation and claims the expenses of operation under the Mediclaim Policy. In our considered view the ratio of above referred case squarely covers the case at hand and the same is binding on us. In the light of the reasoning the decision of the Hon’ble National Commission in the above cited case, we hold that the Appellant Insurance Company is not liable to pay compensation to the Respondent. The impugned order of the learned District Forum is, therefore, liable to be quashed and set aside. It is accordingly quashed and set aside.
9. Appeal is allowed. No order as to cost. Return the records to the District Forum below along with a copy of this judgment and order. Statutory deposit, if any, may be returned to the Appellant.
