F.A. No. 952/2006  against C.C. No. 306/2003,  Dist. Forum, Karimnagar  

Between:

The Divisional  Manager

United India  Insurance Company Ltd.

Divisional Office IX,

206 & 207, 2^nd Floor

Sapthagiri Towers, Begumpet

Hyderabad - 500 016.                                 ***                           Appellant/

            Opposite Party      

                                                                    And

Smt. M. Anasuya

W/o. Dr. M. Anand  Prasad

Age: 60 years,

H.No. 1-1-182,

Jambigadda Road

Jagityal Town

Karimnagar Dist.                                        ***                         Respondent/

Complainant

Counsel for the Appellant:                          Mr. R. Briz Mohan Singh

Counsel for the Respondent:                       M/s. V. Gouri shankar Rao

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

                                 SRI K. SATYANAND,  MEMBER.
                                                         

MONDAY, THIS THE  FIFTEENTH  DAY OF  JUNE  TWO THOUSAND NINE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

This is an appeal preferred by opposite party  insurance company against the order of the Dist. Forum  directing it to pay Rs. 1,40,000/- under  health care policy together  with interest and costs.

2)                The case of the complainant in brief is that  she is the wife of Dr. M. Anand Reddy, a medical practitioner  and a Member of the Indian  Medical Association (IMA).   The members of IMA and their spouses and depends are covered by insurance scheme floated by the appellant insurance company.    Accordingly a health  care insurance policy was issued in their favour covering Rs. 1,50,000/-  per year for a period of five years  on payment of a premium of   Rs. 3, 606/-  per year.   Accordingly policy was issued  covering the period from 1.7.2002 to 30.6.2007 in favour of complainant evidenced under Ex. A2.  In fact her husband has furnished all the relevant information including total replacement of  her left knee on 18.5.2002 with  Apollo  Hospital and he did not conceal anything.   While so, she was again in the hospital for total replacement of right knee on 5.3.2003 and spent Rs. 1,40,000/- towards treatment.  When claim was made  enclosing discharge summary, medical bills, diagnosis reports, cash bills etc., the insurance company repudiated the claim on the ground of  suppression of pre-existing disease.   Since the repudiation was unjust, she claimed Rs. 1,40,000/- incurred towards medical expenses together with compensation for mental agony for Rs. 50,000/- and costs.

3)                 The insurance company resisted the case  alleging that there was no  privity of contract between it and the complainant  and she was not a consumer nor there was deficiency in service on  its part.   However, it admitted that the members of IMA are covered by the policy.   Clause 4.1 of the policy  excludes the pre-existing disease.   At the time of taking policy  the complainant was suffering from ‘Rheumatoid Arthritis with O.A. both knee joints.’  she underwent total replacement of left knee on 18.5.2002.  As such   she was not entitled for the amount claimed by her towards total right knee replacement.    In view of suppression of  existing disease, the policy of insurance is not covered  and therefore  it has rightly repudiated the claim.  Therefore it prayed that the complaint be dismissed.

4)                The complainant in proof of her  case filed her affidavit evidence and got  Exs. A1 to A7 marked.  Refuting her  evidence the appellant filed the affidavit evidence of  its Divisional Manager and got  Exs. B1 to  B4 marked.

5)                The majority of the members consisting of President  and one  of the members  of  the Dist. Forum after considering the evidence placed on record  opined that  the complainant did not suppress the previous  ailment and in fact issued a policy when such  fact was mentioned and therefore cannot evade payment when subsequent operation was conducted, and therefore directed the insurance company to pay Rs. 1,40,000/- with interest and costs.  The  dissenting Member opined that the complainant  had disclosed the existing disease which precludes her claiming the amount.  In the light of the fact that the operation that was conducted  on  the complainant being pre-existing   she was not entitled to the amount covered under the policy, and therefore dismissed the complaint.   

6)                In view of the fact that majority order prevails the insurance company preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.   The Dist. Forum did not consider the exclusion clause.   It ought to have seen that the policy do not cover the pre-existing diseases.   The complainant was not entitled to the amount claimed for the operation underwent by her by virtue of terms of the policy.    Therefore, it prayed that the appeal be allowed.

7)                The point that arises for consideration is whether the complainant was not entitled to the amount covered under the policy for the operation underwent by her?

8)                It is an undisputed fact that the insurance company  issued the policy Ex. B1 for Rs. 1,50,000/- per year for five years to the complainant covering the period from 1.7.2002 to 30.6.2007 evidenced under certificate of insurance  Ex. A2.  In the proposal form evidently her husband he being a doctor against coloumn No. 7  he mentioned : Any existing disease/deformity :   “Rheumatoid arthritis with O.A both knee joints.  Undergone total knee replacement  left  knee  on 18.5.2002”     The fact remains that the complainant  had Rheumatoid arthritis with O.A both knee joints besides total left knee replacement on  18.5.2002. 

9)                It is not in dispute that  the complainant underwent total replacement of right knee  operation on 5.3.2003  in Apollo Hospital.  According to the complainant  she spent about Rs. 1,4o,000/- towards totally knee replacement.   Though the said bills were not filed, obviously filed  before the insurance company when she made the claim.    The insurance company denied the benefit  on the ground that the coverage of the policy is for the following diseases:

a)  All cardiac diseases        b)  Kidney failure including renal transplant

c)  Any accidental injury               d)  Neuro Surgery

e) All forms of cancer          f)   Paralysis and stroke

 g) Encephalitis                   h)   Total replacement of joints

i)  Liver disorder with complications like cirrhosis of liver.

However it is circumscribed by clause 2 and it reads as follows :

Pre-existing disease :   Such diseases which have been in existence at the time of proposing this insurance are excluded from the insurance.

10)               The complainant’s husband at the time when the policy was taken disclosed that the complainant was suffering from “Rheumatoid arthritis with O.A both knee joints.  Undergone total knee replacement  left  knee  on 18.5.2002”.   When the complainant was suffering from Rheumatoid arthritis with O.A both knee joints even at the time she had taken the policy, undoubtedly the said ailment excludes payment of any amount incurred for the said disease.   Exclusion Clause No. 4.1. reads as follows :

“Such disease which have been in existence at the time of proposing this insurance.  Pre-existing condition means  any injury which existed prior to the          effective date of this insurance.   Pre-existing condition also means any sickness  or its  symptoms which existed prior to the effective date of this  insurance, whether or not the insured person had knowledge that the symptoms  were relating to the sickness.  Complications arising from pre-existing disease will be considered part of that pre-existing condition.”

While the complainant alleges that she made a mention at the time when policy was taken that she was suffering from Rheumatoid arthritis with O.A both knee joints, she could not have disputed when her claim was denied on the ground that  condition No. 4.1  excludes the pre-existing disease.    We may reiterate that  pre-existing problems are not covered by the terms and conditions of the policy.   The fact remains that  she was suffering from  pre-existing knee problem when the policy was taken.   By virtue of  condition No. 4.1  she was not entitled to the amount as rightly stated by the learned   dissenting Member.  When both parties  with their eyes wide open  agreed to the clause that pre-existing diseases are not covered by the insurance policy, it is not open to her to claim the amount.   Acceptance of  the policy is subject to above condition.   The terms and conditions of the policy do not confer any right on her.  

11)              We agree with the opinion of the dissenting Member when he observed  that  “Admittedly  the replacement of right knee of the complainant is a pre-existing disease and the pre-existing diseases are excluded  and they are  not covered under the  insurance policy.  The complainant is not entitled to claim and benefit under the insurance policy for any pre-existing disease.”

12)               In the light of admitted facts, repudiation of claim cannot be termed as  unjust when she was suffering from pre-existing disease.  She cannot turn round and claim the amount for the said ailment.    We do not see any merits in the complaint. 

13)               In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently, the complaint is dismissed.  However, in the circumstances of the case no costs.

1)       _______________________________

      PRESIDENT           

2)      ________________________________

          MEMBER           

                                                                   Dt.    15 . 06.  2009.