CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.656/2009
SMT. SUSHMA KALRA
W/O SH. NAVEEN KALRA
R/0 E-172 NARAINA VIHAR,
NEW DELHI
…………. COMPLAINANT
Vs.
M/S UNITED INDIA INSURANCE CO. LTD.,
2/27, SARAJ JULENA, OKHLA ROAD,
NEW DELHI-110024
THROUGH ITS MANAGER
…………..RESPONDENTS
Date of Order: 09.02.2016
O R D E R
A.S. Yadav – President
The case of the complainant is that she purchased a Mediclaim policy No.042301/48/06/41/00002679 from OP on 22.3.06 for the period from 22.03.06 to midnight of 21.03.07 and paid a joint premium of Rs.8906/- and the total sum assured was Rs.5 lakhs.
It is stated that at the time of taking policy it was disclosed to her that policy shall cover all medical expenses if anything happened to the policy holder during the validity period. It is stated that complainant had been regularly purchasing the policy for herself and her family members and OP is regularly receiving the premium from complainant. Moreover, OP issued the policy to complainant and her family members even on 22.3.07 which is valid upto 21.3.08. Previous records of the policy show that the complainant was fit and for all the activities and she never suffered from any disease as at the time of previous policies, medical of complainant was got conducted by OP and complainant was found fit. Moreover at the time of present insurance policy also she was medically examined and was found fit. Unfortunately, complainant was admitted to hospital due to shortness of breathing and the doctor of the hospital conducted a surgery and complainant went under Mitral valve replacement on 24.07.2006. Complainant paid a sum of Rs.3,61,078/- for her treatment in hospital. Complainant filed her claim but OP failed to give any rely of the same and thereafter complainant sent many reminders to OP. Complainant was surprised and shocked to receive a letter from OP issued by M/s Vipul MedCorp TPA Private Limited wherein OP has mentioned that “Rheumatic fever is a disease contracted in childhood and rheumatic heart disease is a post complication of the same hence in our opinion the claim merits repudiation as per clause 4.1 of the mediclaim policy. Please find the original file enclosed for your appropriate action.”
It is further stated that on 22.01.08 OP sent a letter to M/s Vipul MediCorp wherein they have clearly refused to pay any claim thereby stating that the claim is not admissible as per the terms and conditions. Complainant was shocked to see the letter dated 22.01.08 from OP and came to know that her claim was got rejected by OP. It is prayed that OP be directed to pay Rs.361078/- alongwith interest @ 24% p.a. and also litigation charges.
The main contention of the OP is that complainant was suffering from pre-existing disease which she has failed to disclose at the time of taking the policy and has violated clause 4(1) of the policy which is reproduced as under:-
“Exclusion - 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 in respect of:-
4.1: any pre-existing condition(s) as defined in the policy until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her first policy with the company.”
We have heard Ld. Counsel for the parties and carefully perused the records.
The main point for consideration is that whether the complainant was aware of the fact that she was suffering from Rheumatic fever since her childhood. Complainant has specifically stated that she was fit and fine as she has taken previous policy from OP and every time she was medically examined and was found fit.
There was nothing on the record to suggest that the complainant was aware of that fact that she was suffering from Rheumatic fever. There was no question of not disclosing the previous ailment as the complainant was not aware of it. In fact the repudiation of claim by OP on this ground is a farce. The onus was on the OP to prove that complainant was aware of the fact that she was suffering from pre-existing disease which the OP miserably failed to prove. In this regard reference is placed on the case of Tarlok Chand Khanna Vs United Insurance Co. Ltd. 2012(1) CPJ(84) – in that case the insured had taken the policy and she underwent a surgery. The claim was repudiated on the ground that she was having pre existing disease where Hon’ble National Commission in para-6 held as under:-
“In fact, the onus to prove that she had a pre-existing disease was on the Respondent who failed to file any expert medical or credible evidence in support of its case. Further, the deceased had been taking the mediclaim insurance policy from the Respondent right from 1996 and she had also, as per the practice, been examined by the doctor of the Respondent/Insurance Company who was nowhere recorded that she had any medical problems relating to the knees.
Counsel for petitioner further cited a judgment of this Commission in National Insurance Co. Ltd., v. Raj Narain 208 1CPJ 501, wherein the Commissioner had inter alia, observed as follows:-
Most of the people are totally unaware f the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to dies and disease are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this so every person should do medical studies and further not take any insurance policy.
In view of the above facts, the Fora below erred in saying that claim was rightly repudiated.”
It is useful to refer to case of Shano Wadhwan Vs National Insurance Co. Ltd. 2003(2) CPJ 198. That was also relating to knee replacement. It is was held by the Hon’ble National Commission in middle of para 7:-
“whereas according to the case summary and discharge records dated 16.7.1996, the appellant was suffering from pain and heaviness in the neck, full back and lower limbs off and on since long time and suffering from Scoliosis since 4 years but pain and swelling knees only since last 4-5 months. The mediclaim cover became operational as on 2.4.1994. Therefore, the ailment of knee joint, swelling and pain for which the appellant underwent treatment cannot be termed as pre-existing.”
It is also useful to refer to case of Parveen Damani Vs Oriental Insurane Co. Ltd. 2006(4) CPJ 189 where in para-18 and 19 it was held by Hon’ble National Commission that:-
“(18) The District Forum also relied on Clause 4.1 of the policy which states that it was not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.
(19) If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. 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 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 genuinely unaware of them. Hindsight everyone relies much alter that he should have known from some symptoms. If this so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain etc. prior to 11.8.2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease.”
Similar view was taken by Hon’ble National Commission in case of National Insurance Co. Ltd. Vs Raj Narain 2008(1) CPJ 501.
OP has failed to prove that complainant was suffering from pre-existing disease and this fact was concealed by complainant at the time of taking of policy.
OP is directed to pay to complainant a sum of Rs.3,61,078/- alongwith interest @ 10% p.a. from the date of filing of the complaint and also to pay for Rs.20,000/- for compensation and Rs.10,000/- for litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
