New India Assurance Company Ltd,
A Government of India Undertaking,
Having its registered and Head Office at
New India Assurance Building 87
Mahatma Gandhi Road, Fort, Mumbai-400001 and one
Its Divisional Office at Dhankheti Opposite Bawri Mansion,
Shillong.
…Appellant /Opposite party
-Vs-
Shri Mahavir Prasad Singhania
Son of Sri R L Singhania, Thana Road,
Shillong-793001
…Respondent/Claimant
Date of hearing : 14.9.2013
Date of judgment : 28.09.2013
JUDGMENT & ORDER (CAV)
Per Mr. Justice P K Musahary, President.
The opposite party has filed this appeal challenging the judgment and order dated 8.12.2006 passed by the learned District Consumer Disputes Redresal Forum, East Khasi Hills, Shillong (District Forum in short) in Consumer case No.3/04. By the impugned order the opposite party (O.P.in short) has been directed to pay the medical treatment cost amounting to Rs.42,768,65 with simple interest @ 10% per annum plus Rs.15,000/- as compensation on account of harassment and Rs.10,000/- as cost of litigation and correspondence.2. The claimant is the respondent in this case. The facts in short, are that the claimant took a mediclaim policy covering Rs.1 lac on 10.2.2000 for himself and his family members including his 23-year old son Sri Vikram Singhania. The policy was valid upto 9.2.2001. It is claimed that his said son was suffering from Gynaecomastia and his attending physician, on 20.12.2000, advised for proper treatment outside the State. Accordingly, Sri Vikram Singhania was admitted in Apollo Hospital, Chennai on 26.12.2000 and operated for bilateral Gynaecomastia on the same day and was discharged on 27.12.2000. The respondent-claimant submitted a mediclaim for an amount of Rs.42,768.65. The appellant-insurance company processed the claim and obtained medical opinion from its panel doctor Mr. C M Brahma on 12.4.2001. As per opinion of Doctor Brahma, Gynaecomastia develops with puberty around 12 years of age and as such the claim was not tenable since the policy was taken much after the time the disease developed. The appellant/O.P also obtained a second opinion from its panel doctor Mr. Utpal Sharma on 1.5.2001. According to his opinion, the claim was not payable since the disease existed prior to taking of the insurance coverage. So, the appellant- insurance company repudiated the claim vide communication dated 30.7.2001.
3. The respondent-complainant issued pleader’s notice dated 1.2.2002 to the appellant insurance-company, who replied to the same on 15.2.2002 denying liability to pay the mediclaim. It resulted into lodging of complaint with the District Forum on 26.4.2004.
4. The appellant/O.P. contested the case by filing written statement. The complainant examined himself as CW-1. He examined no other witness. He did not even examine his son Sri Vikram Singhania, for whom the mediclaim is made. The O.P examined one of its panel doctors Mr.Utpal Sharma. The learned District Forum, upon hearing the parties, pronounced the impugned judgment and order as indicated above.
5. We have heard Mr.S.Jindal, learned counsel for the appellant and also Mrs. P D B Baruah, learned counsel for the respondents.
6. The only issue required to be examined/considered and decided is whether the disease of Sri Vikram Singhania,for which he was treated /operated in the Apollo Hospital, pre-existed the taking of mediclaim Insurance policy and thereby it would come under the exclusion clauses qualifying the repudiation of mediclaim.
7. The stand of the appellant-insurance company is that the mediclaim was repudiated based on the opinion of their two panel doctors and as per the terms and condition of the policy particularly under the exclusion clause No.4.1 and 4.5. Further case of the appellant is that the disease Gynaecomastia, from which the complainant’s son was suffering, was “long standing since the time of Hormonal changes at the time of puberty, which the patient and his father were aware but at the time of making proposal, they concealed the said fact and hence the claim was found to be not payable as per clause 4.1 of the Mediclaim policy and accordingly, the same was repudiated”.
8. We have perused the opinion of both the panel doctors. Both of them are of the same opinion that Gynaecomastia develops with the onset of puberty and so the patient was suffering from the said disease long before the policy in question was taken. We have no business to question the opinion of the doctors concerned but we can examine their reports/opinions. Dr. Utpal Sharma, in his report dated 1.5.01, Ext. 9(1), observed that “in 50% of the cases no cause can be detected but if hormonal activity disturbs is established and treated by corrective medicines the problem subsides and disappears”.
9. The above observations implies that in some cases Gynaecomastia problem could be detected at a later stage. It also implies that the said problem could be subsided or made to disappear due to treatment by corrective medicines. The former is a case of unawareness of the disease. The patient may not know about the disease until it develops to a certain stage or acuteness. The later is a state where the patient is also aware of the disease and he is under treatment but failed to get the disease cured and managed to get it subsided by treatment. In the present case the appellant has alleged that the respondent-complainant was aware of the disease which existed, at least before taking the policy, but the same was suppressed or concealed at the time of taking the policy. The burden of proof under the Indian Evidence Act, 1872 lies on the party who alleges something against the other party. Here in the instant case, the appellant /O.P. brought an allegation of suppressing /withholding or concealment of material facts/information regarding pre-existing disease against the respondent/complainant. The law of evidence casts burden of proof on the appellant/O.P. They have to prove the fact that complainant had knowledge about the disease before the policy was taken by adducing oral or documentary evidence. They have to prove the pre-existence of the disease by way of adducing medical document/records on treatment taken in the hospital or by examining the doctor concerned, who had treated the patient to get his disease cured or subsided. We do not have any such documentary or oral evidence on record, except the said reports/ opinions of the panel doctors of the insurance company who had no occasion to give medical treatment to the patient concerned.
10. Significantly, in the written statement, the O.P has taken no stand that the claimant’s son Sri Vikram Singhania was ever under medical treatment of his said disease before giving effect to the policy in question. The O.P has taken its doctor’s report/opinion as gospel truth and repudiated the mediclaim without making any endeavour to prove their case by way of legal evidence that the patient was treated in some hospital or by some doctor for the said disease. In our considered view, fact of pre-existing disease has not been proved in the manner as required under the law of evidence and the conclusion arrived at by the appellant/insurance company cannot be sustained.
11. We have found on record a document, Ext.6(3), issued by Dr. (Professor) Subhash Khanna evidencing the fact that claimant’s son Sri Vikram Singhania was treated on 26.12.2000 and thereafter, the claimant’s son was taken to Apollo Hospital , Chennai where he was admitted and operated on 26.12.2000 and discharged on 27.12.2000. These are events subsequent to taking of mediclaim policy. The respondent-claimant through these documentary evidence has been able to prove that his son was treated for the disease after the policy had taken its effect. There is no evidence on record that prior to 10.2.2000 i.e. the date of policy, the claimant or his son were aware about the disease of bilateral Gynaecomastia. The evidence on record is that the disease was diagnosed only on 26.12.2000 i.e. about 11 months after the policy was taken. This piece of evidence could not be demolished by the appellant by adducing any cogent evidence. There is, therefore, no basis to hold that the disease in question was pre-existing. The medical report/opinion of the panel doctor cannot take the place of legal evidence.
12. We are unable to approve the approach of the appellant who is trying to make this Commission accept medical opinion of its panel doctors as a piece of legal evidence. Moreover, it is a matter of common human conduct that the appellant, as father of the patient, would like to give the best medical treatment as quickly as possible had he known that his son was suffering from such serious disease and would not have waited for about a year after the insurance policy was taken. We have seen that the appellant took his son to Apollo Hospital , Chennai soon after he was advised to do so by the local doctor. No case of suppression of material facts such as pre-existing disease has been established in this case. Even if it is proved so, the law requires that the suppression of material facts was done with mala fide intention. No case of suppression of material facts in regard to pre-existing disease with mala fide intention has been established.
13. Issuance of insurance policy pre-supposes medical examination of the person proposed to be covered. Such examination is done by the doctor engaged by the insurance company and the policy is issued on being satisfied with the state of health of the proposed insured person. In absence of any adverse report/ opinion of the doctor, the health condition of the proposed insured person there is no scope for taking any view that he has been suffering from pre-existing disease and there has been any suppression of fact. In the written statement the appellant /OP has not pleaded that the insured was medically examined by their doctors and reported the disease suffered by Sri Vikram Singhania or any of the insured person covered under the Policy. The exclusion clause No. 4.1 speaks about pre-existing condition. As per the said clause, pre-existing condition means any injury which existed prior to the effective date of the insurance. This is not applicable to the present case as because the insured person was not suffering from any injury. As per the said clause, “pre-existing condition also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to sickness”. It also says that “complications arising from pre-existing disease would be considered part of that pre-existing condition” . In the foregoing part of this judgment we have already discussed and found that the symptom of bilateral Gynaecomastia could be diagnosed much after the insurance policy came into effect and so we have declined to hold that the insured concerned had any pre-existing disease. The appellant insurance company by introducing the exclusion clause No. 4.1 expects that each and every insured person should know the disease that may be detected or exposed in the immediate or remote future and make declaration to that effect. This is a clever way of refusing mediclaim to bona fide insured person inasmuch as many people suffer from Gynaecomastia by inheritance and most people suffer from symptoms of disease without the knowledge of the same.
14. The Hon’ble National Commission had an occasion to deal with a case pertaining to similar exclusion clause in Praveen Damani –vs- Oriental Insurance Company Ltd; as reported in IV (2006)CPJ 189 (NC). We feel it apt and appropriate to quote few lines from the said judgment. “ ….Most of the people are totally unaware of the symptoms of the disease that they suffer and hence, they cannot be made liable to suffer because the insurance company relies on their Exclusion clause 4.1 of the policy in a malafide manner to repudiate all the claims . No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is not aware of .“
The Apex Commission further observed” In hindsight, every one realizes much later that the symptoms were indicative of a disease. But common people are not at all familiar with the medical knowledge and so they cannot diagnose their own diseases. If they were expected to be so aware of their medical condition at all times, there would be no use of insurance policies”:
15. Another point strenuously urged upon is that the complainant’s son was admitted in the cosmetic surgery, Unit of Apollo Hospital, Chennai which is clearly mentioned in the discharge summary dated 27.12.2000. It is argued that as per exclusion clause 4.5 of the contract of insurance, the appellant insurance-company is not liable to make any payment in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of any cosmetic surgery or aesthetic treatment unless the same is necessary for treatment of a disease not excluded therein. In the instant case , according to appellant, the complainant’s son was admitted in the cosmetic surgery Unit of the hospital and the operation performed was liposuction with excisions. In support of this submission, the appellant has relied upon the opinion of its panel doctor Mr. Utpal Sharma , who stated that the operation conducted on the patient has got two parts i.e. liposuction, which means consmetic removal of fats ferment area and excisions, which means cutting of a part of an organ and the said operation involves consmetic surgery and in absence of any of the complications in Gynaecomastia as mentioned in clause 4.5, the claim would not be payable and for this reason the claim was repudiated. The learned District Forum, as argued by the appellant, gave no finding or justification as to why the repudiation in question is not maintainable.
16. We have read the exclusion provision in clause 4.5 , which is quoted in the impugned judgment and order itself. In the memo of appeal the appellant has admitted that Gynaecomastia is a disease but the said disease was pre-existing one in respect of the insured person. We have in the earlier part of this judgment, discussed and arrived at a conclusion that the said disease was not pre-existing and in fact, it was not even pleaded so by the appellant/O.P in its written statement. During the course of argument Mr. Jindal , learned counsel for the appellant fairly admitted the said position and abandoned the plea of pre-existing disease.
17. Now a close look at the hospital discharge summary is necessary. For a ready reference and better appreciation, the said discharge summary is quoted below:
“DISCHARGE SUMMARY
UNIT:COSMETIC SURGERY date 27.12.2000
Unit No. 755295 Ward: H Ward
Name of the patient : Mr Bikram Singhania
Thana Road, Shillong,
East Khasi Hills , Meghalaya.
Age of the patient : 23 years
Date of Admission : 26.12.2000
Date of surgery : 26.12.2000
Date of discharge : 27.12.2000
Diagnosis & findings : Bilateral Gynaecomastia
Operation performed : Liposuction with excision
Surgeon : Dr. R. Murugesan
Anaestietist : Dr. Raghavendar
Sd/ APOLLO HOSPITALS
Dr.R.Murugesan 21, Greams Lane, Chennai-600006
Phone 8293333, 8280200”
18. The insured Vikram Singhania was unmistakably diagnosed as having suffered from Bilateral Gynaecomastia. He was, therefore, operated upon by way of liposuction with excision. The insured was mainly suffering from Gynaecomastia and the operation was conducted to cure the said disease. No doubt, the insured was admitted in the cosmetic surgery unit of the hospital, but the discharge summary does not mention that a cosmetic surgery was conducted on the insured. Even assuming that cosmetic surgery was done, there is no material on record that the cosmetic surgery was done primarily for the purpose of cosmetic or aesthetic treatment. The primary treatment given to the insured was for Gynaecomastia. The surgeon in Apollo hospital sought to cure the disease by conducting liposuction with excision operation under G.A.
19. We have gone through the evidence of Dr. Utpal Sharma, a panel doctor of the insurance company. In cross examination, he stated that he is a post graduate in sports medicine. He is a private practitioner pursuing general practice and sports medicine. As a practitioner of sports medicine, he can do only minor surgery like cut injuries , boils etc.. He is not a surgeon and he cannot give opinion as an expert in the field of surgery. He also stated that whenever a case is referred to him by the insurance company, he gives his opinion on the basis of documents filed. He never examined Mr. Vikram Singhania. He gave his opinion on 26.12.2000 basing on the text book. He had no knowledge about the past history suffered by Vikram Singhania. Significantly, he also deposed that when a particular case is beyond his capacity to give opinion, he refers back to the insurance company for seeking relevant opinion from relevant doctor. From this evidence it is evident that Dr. Utpal Sharma, being a general practitioner is not a specialist or expert in Gynaecomastia and it was beyond his capacity to offer any opinion on the said disease, yet he did not refer the case back to insurance company to obtain necessary opinion from a competent specialist concerned. Any person guided by reasons can realize the weight and importance attached to such a medical opinion. The bonafide of obtaining such medical opinion is not beyond doubt.
20. We are no medical specialists or experts to comment upon the correctness or otherwise of the medical opinion in question but as a Commission, at the same time, we are not bound to accept any opinion which appears to be unreliable. The medical opinion of Dr. Utpal Sharma, appears to us to be unreasonable and unacceptable because he gave no importance to the admitted position that the insured Vikram Singhania was primarily suffering from Gynaecomastia and was operated upon to cure the said disease but he tried to show that the insured person had gone to Apollo hospital primarily for consmetic surgery which is aesthetic in nature having no connection with a serious disease like Gynaecomastia. Here lies the fallacy in the argument advanced for the appellant . Here lies the cloud on the bonafide intention of the insurance company in procuring such medical opinion from its panel doctors. The insurance company, in our considered view, has failed to bring its case within the mischief of exclusion clause to turn down the mediclaim.
21. In view of above discussion and observations, we give our seal of approval on the impugned judgment and order dated 8.12.2006, as passed by the learned District Forum in Consumer Case No. 3/04. We direct the appellant to pay the amounts to the Respondent/Claimant as directed in the impugned judgment and order within a period of 40 days from today failing which the appellant shall be liable to pay interest @9% per annum on the payable amounts until payment is made in full and finally.
22. Appeal stands dismissed.
Send down the records forthwith to the forum below with a copy of this judgment and order. Return the statutory deposit to the Appellant.
