DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 220 of 1.8.2007<br /> Decided on : 14.11.2007 <br /> <br /> Sat Pal Gupta S/o Sh. Parkash Chand S/o Sh. Chanan Ram, M/s. Gupta Enterprises, Shop No. 7, Gandhi Market, Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> United India Insurance Company Limited, Divisional Office, 2090-B, The Mall, Bathinda through its Divisional Manager.<br /> ...... Opposite party<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Vinod Garg, Advocate<br /> For the opposite party : Sh. M.R. Gupta, Advocate <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Medi Guard Policy No. 200400/48/16/12/00000450 was purchased by the complainant for himself, his wife Mrs. Manju Gupta, his issues Kimi Gupta and Mohit Gupta. A sum of Rs. 3,908/- was paid as total premium for the insurance. He was secured under the insurance for a sum of Rs.2,00,000/-. Policy was valid from 14.7.2006 to 13.7.2007. Policy was issued by the opposite party after it was fully satisfied about his health and the health of his family members. Assurance was given that in case any claim was submitted, it would be paid within a period of ten days. He (complainant) had heart attack. He was admitted in Escorts Heart Institute and Research Centre, New Delhi. Treatment was obtained by him. He was operated upon for heart surgery and a sum of about Rs. 3,00,000/- was spent for medicines, treatment and other expenses. Claim was lodged with the opposite party for getting the amount reimbursed. Requisite claim form alongwith medical record and bills etc. were submitted vide receipt No. R-2085 dated 18.9.2006. Opposite party kept the matter lingering on one pretext or the other. Written request was also made by him on 16.1.2007. He got issued notice to the opposite party in April, 2007 through his counsel. Letter dated 18.6.2007 issued by opposite party was received by him after the expiry of about ten days whereby his claim has been repudiated on the ground that it is not admissible as it falls under exclusion clause 4.1 of the policy as hospitalization was for management of pre-existing Coronary Artery disease, Diabetes Mellitus, Hypertension, Dyslipidemia. It was further stated in the letter that he (complainant) has concealed material facts at the time of making proposal for insurance policy. Claim has been shown to have been repudiated on the basis of some investigation report submitted by Dr. M.S Sagar. He assails the repudiation of the claim as illegal, arbitrary and against the principles of natural justice on the grounds that he never suffered from any heart problem i.e. Coronary Artery disease etc;opposite party was fully satisfied about his health before the cover note and policy; he had no knowledge of such disease at all before getting policy issued and there was no concealment on his part; he did not take any consultation, treatment or medication before taking the insurance; repudiation of the claim has been made after considerable delay of more than ten months; investigation was conducted at his back as he was not joined in it and no opportunity of being heard was afforded. Investigation has been conducted by the doctor on the panel of the opposite party who is an interested person; procedure prescribed under the policy has not been followed and repudiation is with a pre-determined mind and opposite party did not constitute any panel of independent doctors. Act and conduct of the opposite parties has caused him mental tension, agony and loss of physical health. In these circumstances, complaint has been preferred by him under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) seeking direction from this Forum to the opposite party to pay him Rs. 2,00,000/- i.e. the sum assured alongwith interest @ 18% P.A from the date of policy till realization; Rs. 1,00,000/- as compensation for mental tension and agony, besides costs of the complaint.<br /> 2. Opposite party filed its version taking legal objections that complaint is not maintainable; he did not give intimation to it immediately regarding his admission and operation in the hospital; he submitted his proposal form without date, without any signature of his family doctor Sh. Mohan Lal Garg and signed it as S. Mittal instead of Sat Pal Gupta; he did not comply with the terms and conditions of the policy; he had concealed actual facts while purchasing the policy; intricate questions of law and facts are involved which require voluminous evidence and as such, complaint should be decided only by civil court; complaint is false and frivolous; complainant has not come with clean hands and he is estopped from filing the complaint by his act and conduct. On merits, it admits that complainant had purchased Medi Guard Policy from it and he had secured the insurance for sum assured of Rs. 2,00,000/- for himself. As per complainant, treatment was started w.e.f. 17.7.2006, but intimation was given on 13.9.2006. Policy was taken on 14.7.2006. Claim was lodged by him on 13.9.2006. Receipt No. R-285 dated 18.9.2006 has not been produced by him. Reply of the letter dated 16.1.2007 was sent by it. Repudiation letter dated 18.6.2007 was issued after going through the investigation/verification of the case conducted by Dr. M.S. Sagar of New Delhi, who is Ex-Registrar of AIIMS with qualification of MBBS & MD vide his report No. UIIC/0055/2007 dated 16.4.2007. Complainant has not proved that he was not suffering from diagnosed diseases at the time of purchasing the policy. It denies deficiency in service and remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Sh. Sat Pal Gupta complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of his driving licence (Ex.C.2), photocopy of his PAN Card (Ex.C.3), photocopies of letters dated 22.6.2007, 14.1.2007, 16.1.2007, 18.6.2007 and 12.7.2007 (Ex.C.4, Ex.C.5, Ex.C.8, ExC.11 & Ex.C.25) respectively, photocopy of insurance cover note (Ex.C.6), photocopy of Medi Guard Policy (Ex.C.7), photocopy of legal notice (Ex.C.9), photocopy of reply to the legal notice dated 9.4.2007 (Ex.C.10), photocopies of bills-cum-receipts (Ex.C.12 to Ex.C.14), photocopies of Cash Memos (Ex.C.15 to Ex.C.17), photocopy of Discharge Summary (Ex.C.18), photocopy of Out Patient Test Result Report (Ex.C.19), photocopy of Lab Results Profile (Ex.C.20), photocopy of 2D Echo Doppler Report (Ex.C.21), photocopy of Coronary Angiography Report (Ex. C.22), photocopy of Radiology Report (Ex.C.23) and photocopy of letter No.3047/2006 (Ex.C.24).<br /> 4. On behalf of the opposite party, reliance has been placed on affidavits of Dr. M.S. Sagar, Investigator and Sh. Gobind Aggarwal, its Divisional Manager which are Ex.R.1 & Ex.R.2 respectively, photocopy of application dated 11.4.2007 (Ex.R.3), photocopies of letters dated 16.4.2007, 30.3.2007, 9.4.2007 & 18.6.2007 (Ex.R.4, Ex.R.6, Ex.R.7 & Ex.R.10) respectively, photocopy of opinion dated 16.4.2007 of Dr. M.S. Sagar (Ex.C.5), photocopy of Medi Guard Policy (Ex.R.8) and photocopy of proposal form (Ex.R.9). <br /> 5. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 6. Mr. Garg, learned counsel for the complainant vehementally argued that claim has been illegally and arbitrary repudiated by the opposite party and as such, deficiency in service on the part of the opposite party is proved. <br /> 7. Mr. Gupta, learned counsel for the opposite parties submitted that complainant has contravened the terms and conditions of the policy. His claim for reimbursement of the amount for treatment etc. stands excluded by clause 4.1 of Medi Guard Policy, copies of which are Ex.C.7 & Ex.R.8 according to which he was required to disclose all the diseases/injuries which were pre-existing when the cover was incepted for the first time. He did not give intimation immediately to the opposite party regarding his admission and operation which is necessary as per terms and conditions of the policy. Proposal form was submitted by him without date, without any signature of his family doctor and by signing as S. Mittal in place of Sat Paul Gupta. Claim has been rightly repudiated and as such, there is no deficiency in service on the part of the opposite parties.<br /> 8. We have given our thoughtful consideration to the rival arguments. Since the allegation of suppression of material facts has been levelled by the opposite party, the onus of proving it is upon it. For this, we get support from the observations of their Lordships of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Smt. G.M. Channabasamma-1991 Civil Court Cases-166 (S.C). Similar view has been held by the Hon'ble State Commission, Punjab in the cases of Life Insurance Corporation of India Vs. Smt. Bimla Devi-1999(2)CLT-458 and Life Insurance Corporation of India, Chandigarh Vs. Miss Veenu Babbar and another-2000(1)CLT-619. <br /> 9. Claim was lodged by the complainant on 13.9.2006 as has been admitted by the opposite party. It has been repudiated on the basis of the opinion of Dr. M.S Sagar which is empaneled doctor of the opposite party. Affidavit of Dr. M.S. Sagar and copy of his opinion are Ex.R.1 and Ex.R.5 respectively. Paras 2 to 4 of the repudiation letter are reproduced as under :-<br /> “2. Dr. M.S. Sagar, New Delhi our investigator has observed that Sh. Satpal Gupta was admitted in Escorts Heart Institute and Research Centre, New Delhi under the care of Dr. R.R. Kasliwal on 19.7.2006 with C/o chest heaviness on exertion and breathlessness on exertion for last 6 months. The echocardiography was done with revealed normal study and TMT done on 6 months was also negative. There was history of Hypertension since one year and type II Diabetes Mellitus since 8 years with H/o dyslipidemia on medications Clavix AS, TgLip, Nikoram Zoram Emeta-XR Angiospan TR, Lebrium and Sorbitrate. Prior to admission, he was seen in the cardiac clinic on 17.7.2006 with C/o Chest pain with exertion increased since 15-20 minutes on medicines with H/o Diabetes Mellitus, Hypertension, Dyslipidemia. The Clinical examination revealed pulse of 74/bpmBP of 120/80 mmHg with chest, CVS and P/A NAD. Mr. Gupta was advised angiography and further management. You were investigated with hemogram, serum biochemistry, ECG, ECHO, Carotid Doppler, Caronary Angiography and diagnosed as a case of Coronary artery Disease with Single Vessel Disease (LAD 90%), Angina/Dyspnoea on effort with Diabetes Melitus, Hypertension. He underwent surgery-OPCAB X 3 (LIMA to LAD RSVG to RCA, Radial artery to RI through sternotmy)on 20.7.2006. post operative period you were treated with anti anginal, anti coagulant, anti platelets, beta blockers, ace-inhibitors, anti-lipidemic, bronchodilators and other supportive treatment. You were discharged on 29.7.2006 with relevant advice.<br /> 3. Therefore it is observed that it is a clear but case of hospitalization for the management of a known case of Type II Diabetes Mellitus since 8 years, Hypertension since one year and dyslipidemia with H/o chest heaviness on exertion and breathlessness on exertion for last 6 months investigated and diagnosed as Coronary Artery Disease with Single Vessel Disease (LAD 90%) Angina/Dysphoea on effort with Diabetes Mellitus, Hypertension. You underwent surgery -OPCAB x 3 )LIMA to LAD, RSVG to RCA, Radial artery to RI through sternotmy) on 20.7.2006.<br /> 4. Your policy is effective from 14.7.2006 the claim is not admissible as it is falling under exclusion clause No. 4.1 of the Mediclaim policy as the hospitalization was for the management of pre-existing Coronary Artery Disease, diabetes Mellitus, Hypertension and Dyslipidemia. We are further sorry to note that you have concealed the material facts at the time of making the proposal for insurance policy as nothing was mentioned here in the proposal dated 14.7.2006.<br /> Accordingly, as per the investigation report of our panel Doctor we may inform you that the claim is not maintainable under the Mediguard Policy and we are unable to proceed further in the claim. We have left with no option except to file the papers as No claim as recommended by the investigator.”<br /> 10. Material question for determination is as to whether claim has been rightly repudiated? Claim has been denied on the basis of report of Sh. M.S Sagar empaneled doctor of the opposite party and as such, he is an interested person. Such persons are remunerated and they cannot go against the insurance companies which are their pay masters. Sh. Sagar claims that he had verified the record of Escort Heart & Research Institute Centre. Indoor record and summary of the case was reviewed. His opinion is that the case of hospitalization of the complainant was for management of known case of Type II i.e Diabetes Mellitus since 8 years, Hypertension since one year and dyslipidemia with H/o chest heaviness on exertion and breathlessness on exertion for last 6 months, investigated and diagnosed as Coronary Artery<br /> <br /> Disease with Single Vessel Disease (LAD 90%) Angina/Dyspnoea on effort with Diabetes Mellitus, Hypertension. Opposite party has not placed any record of Escort Heart Institute and Research Centre on the basis of which Dr. Sagar has formed his opinion. In EX.R.5 itself, he has recorded that the Echocardiography was done which revealed normal study and TMT done was done on six months was also negative. No other medical record, prescription slip or opinion of any doctor has been placed and proved on record by opposite party to show that before obtaining policy complainant was suffering from such diseases disclosed by Dr. Sagar in his report/letter dated 16.4.2007 and he was getting treatment for them. Ex.C.18 is the discharge summary of the complainant from Escort Heart Institute and Research Centre in which it has been observed as under :-<br /> Diagnoses Year of Diagnosis Status <br /> Coronary Artery Disease Current<br /> Angina/Dyspnoe on effort Current<br /> Type 2 Diabetes Mellitus Current<br /> Hypertension Current<br /> 11. A perusal of this document reveals that even Escort Heart Institute and Research Centre found Coronary Artery Disease, Angina/Dyspnoea on effort, Type 2 Diabetes Mellitus and Hypertension as current problems/diseases. They were not told as alleged by the opposite party and as opined by Dr. Sagar. Hence, we have no hesitation in concluding that the report/opinion of Dr. Sagar in his letter dated 16.4.2007 is unfounded and baseless.<br /> 12. Opposite party is relying upon the exclusion clause 4.1 of Medi Guard Policy. According to it, company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any assured person in connection with or in respect of all diseases/injuries<br /> <br /> which are pre-existing when the cover incepts for the first time. This exclusion will be deleted after three consecutive continuous claims free policy years provided there was no hospitalization for the pre-existing ailment during these three years of insurance. For the purpose of this case, words all diseases/injuries, which are pre-existing when the cover incepts for the first time, are relevant. Note has been given under clause 4 exclusions that these exclusions 4.1 and 4.2 shall not however apply if in the opinion of a Panel of Medical Practitioners constituted by the Company for the purpose, the Insured Person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the Company. In this case, opposite party issued the cover note of the policy after being satisfied about the health of the complainant. It did not deem it fit to get the opinion of medical practitioners at the time of submission of the proposal i.e. before issuing the cover note/policy or even thereafter. In such a situation, it does lie in its mouth that complainant was suffering from the disease mentioned by Mr. Sagar in his letter which has been relied upon by the opposite party while repudiating the claim. In the facts and circumstances, complainant cannot be said to have concealed material facts. Insurance policy is to be construed having reference only to the stipulations contained in it and no artificial far fetched meaning can be given to the words appearing in it. For this, reference can be made to the observations of their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal-2005(1)CLT-215. In this scenario of the case, it is difficult to hold that complainant has violated clause 4.1 of the Medi Guard Policy. Ex.C.5 are the guidelines of opposite party according to which duty has been cast upon it (opposite party) that medical examination should be insisted upon at the proposal stage wherever found necessary. In this case, no medical examination of the complainant before issuing cover note/policy has been got done. We are constrained to remark that opposite party is estopped by its act and conduct from saying that complainant has concealed material facts or that he was suffering from diseases opined by Dr. Sagar. Rather, denial of the claim of the complainant is against its own terms and conditions of the policy. Mere fact that Dr. Sagar remained as Registrar of AIIMS and as M.D is no ground to accept his opinion as gospel truth, particularly when it is baseless. <br /> 13. True that policy was obtained on 14.7.2006 and complainant was admitted in Escort Hear Institute and Research Centre, New Delhi on 17.7.2006 as is evident from Ex.C.12 and Ex.C.13 and had heart surgery. Treatment was taken by the complainant from Escort Heart Institute & Research Centre from 17.7.2006 and his heart surgery was conducted. Intimation about the admission and operation as per plea of the opposite party was given on 13.9.2006. Contention of the learned counsel for the opposite party is that it should have been given within seven days as per clause 5.3 of the Medi Guard Policy. There is nothing in clause 5.3 that if the intimation of admission/treatment is not given within seven days, the claim would not be entertained. If such clause had been prescribed in the policy, the position would have been different. Clause 5.3 appears to us as directory. Claim cannot be repudiated only on its basis. In this view of the matter, we are fortified by the observations of the Hon'ble State Commission, Punjab in the case of National Insurance Co. Ltd. & Another Vs. Chamkaur Singh-II(1998)CPJ-325.<br /> 14. Contention of the learned counsel for the opposite party that proposal form submitted by the complainant was without date, without any signature of his family doctor and was signed as S. Mittal instead of Sat Paul Gupta would fetch no significance at this stage. Opposite party could reject the proposal submitted by the complainant at that time. Rather, it accepted the same and issued cover note and insurance policy. Now this objection on its part is<br /> <br /> meaningless and not tenable.<br /> 15. As a result of what has been discussed above, crux of the matter is that repudiation of the claim submitted by the complainant is certainly arbitrary, illegal and unjustified. Accordingly, it is set-aside. Deficiency in service on the part of the opposite party in repudiating the claim is proved.<br /> 16. Now question arises as to which relief should be accorded to the complainant. Complainant secured the insurance for sum assured of Rs. 2,00,000/- as is evident from the evidence brought on record by him. According to Ex.C.14 alone, a sum of Rs. 2,35,180/- was charged by Escort Heart Institute and Research Centre Ltd. Hence, direction deserves to be given to the opposite party to pay Rs. 2,00,000/- i.e. the sum assured alongwith interest @ 9% P.A from 14.12.2006 (Date calculated after three months after the submission of the claim, a period required for processing the claim in an effective manner in normal course ) till payment. Complainant is craving for compensation of Rs. 1,00,000/- on account of mental tension and agony. There is no case to allow it in view of the relief which is being accorded as above. Moreover, it is worth mentioning that out of interest and compensation, one can be allowed.<br /> 17. No other point was urged before us at the time of arguments.<br /> 18. In the premises written above, complaint is allowed against the opposite party with costs of Rs. 2,000/-. Opposite party is directed to do as under :-<br /> ( i ) Pay Rs. 2,00,000/- to the complainant alongwith interest @ 9% P.A from 14.12.2006 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 19. Copy of this order be sent to the parties free of cost. File be also<br /> <br /> <br /> consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 14.11.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br />