1) In brief consumer disputes is as under –

    That the Original Complainant Mr.Sudhir Khanuja was the Director of American Internet Services know as Tracmail (I) Ltd., having its Head Office at Bostan, U.S.A. and was on the board of the American Directors. The Original Complainant on or about 10/02/2000 submitted proposal for Mediclaim Policy to the Opposite Party and Mediclaim Policy was issued by the Opposite Party which was valid for period from 10/02/2000 to 09/02/2001. The total sum assured was Rs.5 Lakhs for which the sum of Rs.7,605/- + Rs.380/- was paid to the Opposite Party as a premium by the Original Complainant.

2) It is submitted that the Original Complainant was hale and hearty and did not have any ailments of the heart, hypertension or diabetes. All of a sudden on 11/03/2000 Original Complainant Mr.Sudhir Khanuja developed slight discomfort in the chest. Then the Complainant’s wife telephonically informed the family doctor, Dr. Apoorva Patel. The said family doctor on a clinical examination asked the Complainant to consult the Cardiologist. Complainant’s wife contacted Dr.Rajdeep Agarwal, the family friend and Cardiologist who advised that the Complainant should take the medicine ‘Sorbitrate’ and if the symptom persisted then the Complainant was to take an appointment with the Cardiologist. The Complainant’s wife wanted a second opinion. She being a lawyer for the Wockhardt Hospital & Heart Institute at Bangalore for the last 10 years, made a telephone call to Dr.Vivek Jawali, a Cardiac Surgeon of Wockhardt Hospital & Heart Institute at Bangalore on 11/03/2000 itself Dr.Vivek Jawali enquired about the symptoms and the Complainant’s wife expressed apprehension about the state of health of the Complainant. After making necessary enquiries it was decided to take Complainant to Bangalore to the Wockhardt Hospital & Heart Institute. With the help of relatives and friends Complainant’s wife took the Complainant-Sudhir Khanuja to Bangalore by Indian Airline flight.

3) After reaching at Wockhardt Hospital & Heart Institute at Bangalore Dr.Vivek Jawali and the team of doctors examined the Complainant–Sudhir Khanuja clinically to see whether the parameters were stable. Dr.Vivek Jawali after scrutinized that the parameters were suitable, advised that the Complainant should undergo the procedure of an Angiogram on the next day i.e. 12/03/2000. Various tests were conducted during the night of the 11/03/2000 to enable the Complainant to undergo the procedure of angiography. On 12/03/2000 angiography was conducted by Dr.Arun Sreenivas. The angiography report revealed that the original Complainant had a Left Main Coronary Artery 99 % proximal Lad Artery stenosis, normal mid and distal Lad Artery single large diagonal branch with 80 % proximal stenosis, Large normal ramus intermedius. Nondominant circumflex artery with 70 % proximal stenosis. Large dominat right coronary artery with 100 % proximal occlusion with bridging collaterals and left to right collaterals left to right. The normal LV function was 58 % EF. Alongwith complaint the Complainant has produced copy of the angiography report. It is submitted that on the basis of the recommendation of the Interventional Cardiologist, Dr.Arun Sreenivas and the Cardiac Surgeon Dr.Vivek Jawali, the decision was taken to perform the Coronary Artery Bypass Grafting Surgery. Accordingly CABG was done. The Complainant has produced copy of the discharge summery of the Wockhardt Hospital & Heart Institute at Bangalore alongwith complaint.

4) The Original Complainant was discharged from Wockhardt Hospital & Heart Institute at Bangalore on 22/03/2000 and immediately flew to Mumbai on the same day. It is submitted that at the time of operation itself Complainant’s wife sent a letter dated 15/03/2000 to the Opposite Party informing about the aforesaid fact that the Complainant was transferred to Bangalore on account of chest pain on 11/03/2000 and reason for transferring to the Bangalore. The Complainant has produced photo copy of the aforesaid letter dated 15/03/2000 alongwith the complaint.

5) On 12/04/2000 Complainant’s wife sent a letter to the Divisional Manager of Opposite Party enclosing Medical papers of Wockhardt Hospital & Heart Institute at Bangalore, Claim form being duly signed and filled, Bill dated 31/03/2000 for sum of Rs.1,83,043.49 paise and Receipt of the payment of the aforesaid bill was also supplied to the Opposite Party.

6) It is submitted that there was no reply to this letter or any action on the part of Opposite Party therefore, on 25/04/2000 Complainant’s wife send a letter to Opposite Party requesting to expedite the claim. On 25/04/2000 besides sending the letter, Complainant’s wife spoke to Mr.G.K.Pattewar, the Division Manager of Opposite Party who told that the claim was being processed. That time the Divisional Manager did not make any queries. On 11/04/2000 the Divisional Manager called the Complainant’s wife and informed her that Original papers had been lost and hence, duplicate copies should be sent. Accordingly Complainant’s wife sent the duplicate copies of the documents alongwith covering letter which was received by the Opposite Party on 12/04/2000.

7) It is submitted that wife of original Complainant sent a letter to Mr.Vishal Bali, Wockhardt Hospital & Heart Institute at Bangalore asking them to render assistance. On 21/06/2000 medical records were submitted by the Wockhardt Hospital & Heart Institute at Bangalore to the Opposite Party and copy of the letter was endorsed to the Complainant.

8) It is submitted that Complainant’s wife kept in regular touch with the Divisional Manager of the Opposite Party. After four months Opposite Party send letter to the Complainant dated 26/07/ 2000 asking for the complete sequence of events from the time of first incident of adverse health symptom occurred till the time of operation. The sequence of the events was already narrated to Mr.G.K.Pattewar, even then aforesaid letter was sent to the Complainant. On 08/08/2000 by a letter the complete sequence of events including the reason for transferring the Complainant to Bangalore was given by Complainant’s wife to the Opposite Party. From time to time the Opposite Party raised queries and the Complainant had given prompt reply to the said queries. The Complainant has given particulars of the queries made by the Opposite Party in the complaint. Lastly by letter dated 26/11/2000 Opposite Party repudiated the claim on following grounds –

i) Alleged non-disclosure of material/vital facts.

ii) Exclusion of the claim (clause no.4.2 of the Mediclaim Policy).

iii) Exclusion of the claim (clause no.4.1 of the Mediclaim Policy).

iv) Many aspects of the events narrated by the Complainants about taking the seriously ill patient, do not fit into any know, accepted or normal standards of behaviour both

     from the layman’s and medical view point.

v) The statements in the medical records and certificates produced have several innate contradictions, showing that the same have been managed to suit the case.
 

9) According to the Complainant, the Opposite Party without application of mind has repudiated the claim on false grounds and therefore, the Complainant has filed this complaint before this Forum. The Complainant has prayed to direct Opposite Party to pay to the Complainant a sum of Rs.1,83,043.49 paise together with interest from 12/04/2000 till realization of entire amount. The Complainant has further requested to direct to the Opposite Party to pay to the Complainant a sum of Rs.1,00,000/- for legal cost, expenses and mental agony. Alongwith the complaint, the Complainant has produced copies of documents as per list of documents.

10) During pendency of this complaint, the original Complainant-Mr.Sudhir Khanuja expired on 10/12/2001 leaving behind his wife namely, Mrs.Geeta Khanuja. After the death of the original Complainant Mrs.Geeta Khanuja made an amendment application to bring her name on record as a legal heir of deceased. Amendment application was allowed and name of Geeta Khanuja is brought on record as a legal heir of deceased Complainant Mr.Sudhir Khanuja.

11) Opposite Party has filed their written statement and thereby resisted the claim of the Complainant contending interalia that there is no deficiency of service on the part of Opposite Party and the complaint deserves to be dismissed with cost.

12) It is admitted by the Opposite Party that Mr.Sudhir Khanuja had obtained Mediclaim Policy from the Opposite Party and it was valid for period of one year from 10/02/2000. As per Opposite Party in the proposal form the Insured had declared that he was not suffering from any ailments. In the month of March, 2000 Insured was reportedly admitted at Wockhardt Hospital & Heart Institute at Bangalore for Coronary Angiography and Coronary Bypass Surgery. After receipt of the claim form from the Complainant under the Mediclaim Policy as per the standard practice the Complainant was asked to submit all his paper in original to the Opposite Party for scrutiny of the claim. The said Mediclaim Policy papers were then submitted to a Medico Legal Specialist on the panel of the Opposite Party for his opinion. The Medico Legal Specialist found that there were several aspects in the claim including that the claim was within 1 month from the date of taking the policy. Over the next few months Opposite Party and its representative carried out detail investigation in which it is revealed that the entire episode of treatment of the Insured was planned is a meticulous way bordering on fraud, to unjustly enrich the Complainant at the cost of the Opposite Party. Medico Legal Specialist after going through of the evidence collected during the course of investigation opined that “in the indoor case paper of Wockhardt Hospital & Heart Institute at Bangalore there are detailed notes on the treatment given to the patient. The history taken by the first doctor who examined patient states that insured had chest discomfort which radiated to the left arm and sweating on 11/03/2000 after having food in the afternoon. The history goes on to say that the Insured is a recently detected diabetic. In the history taken by the anaesthetist, that the Insured has been described as Diabetic and Hypertensive on 12/03/2000. After discussion Opposite Party came to the conclusion that the claim attracted the following clauses of policy –

i) pre-existing of close and proximate disease to Ischemic Heart Disease,

ii) non disclosure of vital, material facts at the time of making the policy.

iii) Claim in the first 30 days after making of policy.

          Based on this, it was decided to repudiate the claim
 

13) Opposite Party has denied each and every allegation made in the complaint and justified their decision of repudiation of the claim contending that the complaint deserves to be dismissed with cost. 
 

14) G.K.Pattewar, Sr.Divisional Manager of Opposite Party has filed his affidavit in support of the written statement. Alongwith written statement the Opposite Party has produced copies of documents as per list of documents. The Complainant has filed Rejoinder and thereby denied the allegations made in the written statement. The Complainant has filed written argument. The Opposite Party has also filed written argument. Heard oral submissions of Ld.Advocate Mrs.Geeta Khanuja - the Complainant and Ld.Advocate Mr.Manoj Mhatre for Opposite Party. Following points arises for our consideration and our findings thereon are as under – 

Reasons :- 

Point No.1 :-     It is admitted fact that original Complainant late Mr.Sudhir Khanuja had submitted proposal form and accordingly Opposite Party issued mediclaim policy which was for period from 10/02/200 to 09/02/2001. The original Complainant paid premium of Rs.6,985/- for the said policy. Total sum assured under the said policy was Rs.5,00,000/-. It the case of the Complainant that the original Complainant Mr.Sudhir Khanuja was hale and hearty and did not have any ailments of the heart, hypertension or diabetes. For the first time on 11/03/2000 late Mr.Sudhir Khanuja suffered slight discomfort in the chest so family doctor was summoned. Family doctor clinically examined the Complainant and asked the Complainant to consult the Cardiologist. Thereafter Complainant’s wife contacted Dr.Rajdeep Agarwal, the family friend and Cardiologist who advised that the Complainant should take the medicine ‘Sorbitrate’. The Complainant’s wife was not satisfied with the advise given by the Cardiologist Dr.Rajdeep Agarwal. Therefore the Complainant’s wife i.e. present Complainant Mrs.Geeta Khanuja being lawyer of Wockhardt Hospital & Heart Institute at Bangalore for last 10 years telephonically contacted Dr.Vivek Jawali, a Cardiac Surgeon of Wockhardt Hospital & Heart Institute at Bangalore and after telephonic talk with Dr.Vivek Jawali to decision to take original Complainant-Mr.Sudhir Khanuja to Bangalore to the Wockhardt Hospital & Heart Institute. On the same day with the help of friends and relatives, Complainant’s wife took the Complainant - Mr.Sudhir Khanuja took to Bangalore by Indian Airline flight. Immediately after reaching at Wockhardt Hospital & Heart Institute at Bangalore Insured was admitted in the said hospital on 11/03/2000. Dr.Vivek Jawali, Cardiac Surgeon and the team of doctors examined the Original Complainant – Sudhir Khanuja clinically to see whether the parameters were stable and on 12/03/2000 Angiography was done. It was revealed from the report of Angiography that there were three blocks. Therefore, on 13/03/2000 Coronary Artery Bypass surgery was done. Insured was discharged from the hospital on 22/03/2000 and immediately brought to Mumbai. 

Wife of Insured i.e. present Complainant on 15/03/2000 sent a letter to the Opposite Party byway of intimation giving reasons for transfer of patient from Mumbai to Bangalore. On 12/04/2000 a letter alongwith medical papers was sent to the Opposite Party. Thereafter from time to time Opposite Party was requested expedite the calim. In the mean time the Opposite Party informed that the original documents were lost. Then the Complainant supplied duplicate copies of medical case papers and other documents to the Opposite Party. At the request of the Complainant, Mr.Vishal Bali, Wockhardt Hospital & Heart Institute at Bangalore supplied all photo copies of medical case papers to the Opposite Party. 

According to the Complainant the Opposite Party deliberately harassed the Complainant by making number of queries from time to time and after prolong correspondence deliberately delayed to settle the claim and lastly by letter dated 27/11/2000 repudiated the claim on the grounds mentioned in the repudiation letter which are not just and tenable and it amounts to deficiency in service on the part of Opposite Party. 

Ld.Advocate for the Opposite Party has justified repudiation of the claim stating that in the instance case after receipt of claim form from the Insured, Opposite Party made detailed investigation and after obtaining Medico Legal opinion, Opposite Party have repudiated claim. So repudiation of the claim cannot be treated as deficiency in service on the part of Opposite Party. 

By letter dated 27/11/2000 Opposite Party has repudiated the claim on following grounds – 

1)Your Hospital papers reveal that Mr.Sudhir Khanuja has been suffering from Diabetes and Hypertension prior to the admission at the Hospital, a fact which you have not

    revealed at the time of making the Proposal in February, 2000. This makes the entire policy void as per the declaration signed by you in the Proposal Form. Non-disclosure

    of material, vital facts vitiate the Policy and claim beyond redemption. 

2)The Hospitalisation for treatment has arisen within the first 30 days of the First Policy, attracting Clause 4.2 of the MEDICLAIM POLICY. 

3)The ailments which the Insured was suffering from viz. Diabetes and Hypertension were pre-existing the Hospitalisation and being known, accepted and established

   causes of Ischemic Heart Disease, attract clause 4.1 of the MEDICLAIM POLICY. Ischemic Heart Disease is known to be caused, precipitated and aggravated in your

   case, nullifies the claim under the Exclusion pertaining to pre-existing disease. 

4)We find that there are many aspects of the events narrated by you about taking the seriously ill patient to Bangalore which do not fit into any known, accepted or normal

    standards of behaviour both from the layman’s and medical view point. On this ground also, the case deserves repudiation.  

5)The statements in the medical records and certificates produced have servral innate contradictions, which make us feel that the same have been managed to suit the case.

   This is another reason for our repudiating the claim. 
 

Ld.Advocate for the Opposite Parties submitted that Insured late Mr.Sudhir Khanuja had availed Mediclaim Policy issued by the Opposite Party from 10/02/2000 for period of

1 year. In the proposal form for obtaining mediclaim he had declared that he was not suffering from any ailments. On the scrutiny of the medical papers it was revealed that Insured has been described as Diabetic and Hypertensive on 12/03/2002 by anesthetist. On admission Tab. Daonil, Tab. Glycomet and Inj.Actrapid were administered to the Insured. Thereafter Insured was kept on high does of Insulin and such high does continued even at the time of discharge. According to the Ld.Advocate for Opposite Party, Insurance Policy was taken on 11/02/2000 and Insured was admitted in the hospital on 11/03/2000 within 30 days from the date of policy. 
 

        The Complainant has submitted that the date on which proposal form for mediclaim policy was submitted to Opposite Party late Insured Sudhir Khanuja was not suffering from Diabetes or Hypertension as alleged. The Complainant was not aware about the fact that he has Diabetes or Hypertension and this fact is supported by a letter of Dr.Apoorva Patel and Dr.Vivek Jawali. In support of her contention the Complainant has referred to photo copy of letter Dr.Aproova Patel, a family doctor of Insured which is at Exhibit – “62” and Dr.Vivek Jawali from Wockhardt Hospital & Heart Institute at Bangalore which is at Exhibit-“63”. From the contents of letter dated 04/08/2000 of Vivek Jawali of Wockhardt Hospital & Heart Institute at Bangalore, it appears that Vivek Jawali had addressed aforesaid letter dated 04/08/2000 to the Divisional Manager of Opposite Party in which he has stated that patient Mr.Sudhir Khanuja was not a diabetic and did not suffer from any heart ailment prior to this episode. Further it is stated that “Infact, Diabetes was confirmed only at the time of admission to Wockhardt Hospital & Heart Institute at Bangalore on 12/03/2000. Further more, the pain in the chest started prior to admission. He was totally oblivious to both the ailments”. The Opposite Parties have not adduced any evidence to prove their allegations that prior to the inception of Mediclaim Policy Insured-Sudhir Khanuja was suffering from Diabetes and Hypertension as alleged. Opposite Party have produced copy of medical case papers of Insured in which it is stated that no history of Palpitation or Thopoena and Systemic Illness recently known diabetes.
 

           In spite of aforesaid medical evidence on record, Opposite Party without any basis has wrongly alleged that Insured has suppressed material facts regarding health (Diabetes and Hypertension).
 

          The second ground which is stated in the repudiation letter is that the hospitalization for treatments has arisen within first 30 days of the first policy, attracting clause 4.2 of the Mediclaim Policy. Ld.Advocate for the Opposite Party has submitted that Insured had taken Mediclaim Policy form 10/02/2000 and thereafter Insured was admitted in the Wockhardt Hospital & Heart Institute at Bangalore on 11/03/2001 as such claim arose within 30 days from the date of inception of policy. Ld.Advocate has referred clause no.4.2 of Mediclaim Policy and submitted that as the claim arose within 30 days from the date of commencement of the policy, Opposite Party has rightly repudiated the claim by the Opposite Party. Clause No.4.2 of Mediclaim Policy is as under -  

“Any disease other than those stated in clause 4.3 contracted by the Insured Person during the first 30 days from the commencement date of the policy. This exclusion shall not however, apply in the opinion of Panel of Medical Practitioner 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. This condition 4.2 shall not however apply in case of the insurance person having been covered under this scheme or group insurance scheme with any of the Indian Insurance Companies for a continuous period of preceding 12 months without any break.”  

The Complainant has submitted that exclusion clause 4.2 is not applicable to the present case. In the instance case for the first time Insured came to know about his heart disease on 11/03/2000. At the time of taking mediclaim policy, the Insured was not aware about Diabetes or Hypertension or any other ailment. After 32 days from the date of mediclaim policy the Complainant on medical examination i.e.on 11/03/2000 came to know about Heart disease and on the next date about Diabetes and Hypertension. Bypass surgery was performed on 13/03/2000 and therefore, Policy Clause 4.2 is not attracted. It is submitted that Opposite Party has wrongly repudiated mediclaim on the aforesaid ground.  

It appears that at the time of submitting proposal form Insured was not aware that he was having Diabetes, Hypertension or any heart ailment. He suffered chest pain on 11/03/2000 and he was moved to the Wockhardt Hospital & Heart Institute at Bangalore. On 12/03/2000 Angiography was conducted and in the report of Angiography revealed that he were 3 blocks. It is not accepted on the part of Insurance Company to repudiate the claim on hyper technical ground.  

Hon’ble Supreme Court in the matter of L.I.C. Of India V/s. Smt Asha Goel reported in AIR 2001 549 has hold “Repudiation of claim by insurer – Merely on grounds that deceased had withheld correct information regarding his health at time of effecting insurance with corporation – Not proper – Matter of repudiation of policy should not be dealt with in a mechanical and routine manner but should be one of extreme care and caution. 

In the course of time the Corporation has grown in size and at present it is one of the largest public sector financial undertakings. The public in general and crores of policyholders in particular look forward to prompt and efficient service from the Corporation. Therefore, authorities in-charge of management of the affairs of the Corporation should bear in mind that its credibility and reputation depend on its prompt and efficient service. Therefore, the approach of the Corporation in the matter of repudiation of a policy admittedly issued by it should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner. Repudiation of claim by Corporation merely on grounds that insured who dies of acute Myocardial infarction and cardiac arrest had not disclosed correct information regarding his health at time of effecting insurance with corporation is not proper”.  

Considering the fact of this case, it appears that repudiation of the claim under exclusion clause 4.2 is not justified. 

Third grounds mentioned for repudiation of claim by Opposite Parties is pre-existing disease as discussed above the Opposite Party has not adduced any evidence to prove that prior to submitting proposal form of Mediclaim Policy, the Insured was suffering from Diabetes and Hypertension as alleged. 

In this case the Opposite Party has taken strong objection to the fact that the patient was taken by flight to Bangalore on the advise of the doctor on the telephone. It appears that wife of the Insured was working as a lawyer for Wockhardt Hospital & Heart Institute at Bangalore for last 10 years. Since the doctors in the said hospital were known to the wife of Insured. On telephone she contacted reputed Cardiac Surgeon, Dr.Vivek Jawali of the said hospital and then Insured was taken immediately to the Bangalore. In the instance case, the Opposite Party process claim under challenged with suspicious. From time to time Opposite Party made about 16 queries to the Insured. Opposite Party informed the Insured that original case papers were lost. With the help of Wockhardt Hospital & Heart Institute at Bangalore photo copy of the medical case papers were again supplied to the Opposite Party. Opposite Party asked to produce travel documents such as, Air Tickets from Bangalore to Mumbai journey, etc. Opposite Party has not taken decision within stipulated time as per IRDA guidelines and lastly on 27/11/2000 on imaginary grounds wrongly repudiated the claim without any basis and it amounts to deficiency in service on the part of Opposite Party therefore, Complainant has proved deficiency in service on the part of Opposite Party. Hence, we answer point no.1 in the affirmative 
 

In this complaint the Complainant has prayed for recovery of Rs.1,83,043.49 paise. The Opposite Party has not disputed the correctness of the amount claimed by the Complainant. Considering the aforesaid fact we think it just to direct to Opposite Party to pay to the Complainant Rs.1,83,043..49 paise.
 

The Complainant has claimed interest @ 18 % p.a. on the aforesaid amount from the 12/04/2000 till realization of the entire amount. We think it just to direct the Opposite Party to pay interest @ 9 % p.a. on Rs.1,83,043.49 paise from 27/11/2000 to the Complainant till realization of entire amount.
 

The Complainant has claimed Rs.1,00,000/- for legal cost and mental agony, etc. The Opposite Party has denied aforesaid claim of the Complaint. It appears from the record that after claim form was submitted to the Opposite Party, from time to time Opposite Party has made number of queries and asked the Complainant to produce number of documents including travel documents. Original case papers were lost from the custody of the Opposite Party so at the request of the Complainant concerned hospital supplied photo copies of the case papers to the Opposite Party. We think it just to direct to the Opposite Party to pay Rs.10,000/- as compensation for mental agony and Rs.5,000/- towards as cost of proceeding to the Complainant.
 

For the reasons discussed above, the complaint is partly allowed. Therefore, we pass following order –
 

O R D E R
 

i.  Complaint No.82/2001 is partly allowed.
 

      with interest @ 9 % p.a. from 27/11/2000 till realisation of entire amount to the Complainant.  

      towards cost of this proceeding to the Complainant. 

iv. Opposite Party shall comply with the order within period of 1 month from the date of receipt of copy of this order.