ORDER :- (Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member)
(1) These two appeals arise out of one and the same order and involve identical/same facts as well as common question of law. Hence, they are disposed off by this common order.
(2) These two appeals take an exception to the impugned order dated 29/03/2004 passed in Consumer Complaint No. 238/2002 – Mr.Sureshchandra Punamia Vs. The New India Insurance Co.Ltd., - by South Mumbai District Consumer Disputes Redressal Forum, Mumbai (‘forum’ in short).
(3) The complainant had taken a mediclaim policy in 1992 and it was renewed from year to year and lastly it was renewed for the period from 14/09/2001 to midnight of 13/09/2002. During the period of the said policy, on 06/01/2002 due to complaint relating to the heart ailment, the complainant was admitted in Cumballa Hill Hospital. Consequently, on 07/01/2002 the complainant had undergone by pass surgery in Bombay Hospital and discharged on 21/01/2002. He incurred expenses of `3,11,861/- and submitted medi-claim to the opponent Insurance Company. However, the said claim was repudiated by the insurance company on 04/04/2002 and, therefore, this complaint was filed.
(4) Upholding the case of the opponent and partly allowing the claim, the forum below awarded compensation of `1,55,930/- along with interest @12% p.a. from the date of complaint till its realization and cost `3,000/-. Not satisfied with the same, the original opponent filed an appeal No.735/04 and original complainant filed an appeal No.1045/04.
(5) Heard both the parties. In the instant case, only ground pleaded before us by the insurance company is about exclusion clause 4.1 of the insurance policy whereby all diseases/injuries which were pre-existing for the first time when the insurance was taken, were excluded. It is further mentioned in the policy itself that treatment over hyper tension and related diseases as well as treatment for retina are excluded and it is further alleged that since treatment in question related to the hyper tension, the claim was rightly repudiated by the insurance company. No other ground is pressed before us.
(6) Insurance company filed an affidavit of Mr.B.N.Prasad, its official. He tried to impress relying upon their panel doctor’s opinion that hypertension has strong correlation with artherosclerosis which is slow progressive vascular disease characterized by focal formation of Atheromta in the intima of muscular arteries. Then he alternatively tried to submit that hypertension being proximate cause of heart ailment in question, the repudiation of the claim is proper, Insurance company, however failed to tender U/s.13(4) of the Consumer Protection Act, 1986 evidence of such panel doctor, namely, Dr.Patil.
(7) The complainant has filed two affidavits of experts. One affidavit is filed by Dr.M.R.Jain and another by Dr.Aniruddha Trivedi, who operated by-pass on the complainant. Dr.M.R.Jain categorically stated that the hypertension of the complainant was not responsible for causing coronary artery disease in question and which required surgery. Dr.Trivedi in his affidavit has stated as under:-
“I say that it is very difficult to say about the etiology of the disease, but it is usually of multifactor origin including diabetics, genetics, hypertension, hypercholestermia, obesity and smoking. I say that hypertension is one of the causes of the said disease but not the only cause of the same.”
(8) There is no reason to discard opinions of Dr.M.R.Jain and Dr.Aniruddha Trivedi. Applying ‘but for’ test and considering that there is no other experts’ opinion tendered in evidence, we find it safe to rely on them. It could be seen that since hypertension which is suffered by the complainant for several years before he suffered coronary artery disease, cannot be related or said to be direct cause or only cause for the same. Hypertension may be one of the causes, but not the only cause. Under the circumstances, we are of the view that the exclusion clause of the insurance policy is not attracted. The appeal filed by the insurance company deserves to be dismissed.
(9) The complainant has filed appeal No.1045/04 for enhancement of the compensation. It could be seen that there is no evidence is tendered U/s.13(4) of Consumer Protection Act, 1986 on behalf of the complainant to justify his total claim. Therefore, what has been awarded being proper, it is not a case for an enhancement. Under the circumstances, we find the appeal filed by the complainant is also devoid of any substance. Holding accordingly, we pass the following order.
ORDER
(1) Appeal No.735/04 and No.10/45/04 stand dismisses.
(2) No order as to costs.
Pronounced on 13th July, 2011.
