Bijoy Kumar Chaturvedi vs UNITED INDIA INSURANCE CO. LTD.

PETITIONER was the complainant before the District Forum. He had taken a mediclaim policy from the respondent/opposite party which initially covered him and his father w.e.f. 12.11.1991. The policy was renewed from time -to -time. On 10.11.1999, he further included the name of his mother and his wife for insured sum of Rs. 50,000 each. His mother, however, fell ill on 13.12.1999 and he had to incur a huge expenditure on her treatment. He, therefore, claimed the insured sum of Rs. 50,000 from the respondent/opposite party, which, however, was repudiated on the ground that the complainant had suppressed material fact with regard to the existence of the disease prior to the inclusion of her name in the policy. The complaint, therefore, was filed before the District Forum who vide order dated 14.6.2001 directed the respondent/opposite party to pay Rs. 51,659 for the loss incurred by the petitioner/complainant for the treatment of his mother and also to pay Rs. 10,000 by way of compensation for the mental agony suffered by him.

AGGRIEVED upon the order passed by the District Forum, an appeal was filed by the respondent/opposite party before the State Consumer Disputes Redressal Commission, West Bengal, Kolkatta who vide their detailed order dated 2.6.2005 have set aside the order passed by the District Forum and allowed the appeal of the respondent/opposite party resulting in the dismissal of his complaint. Disappointed and aggrieved by the dismissal of his complaint by the State Commission the complainant has filed this revision petition.

LEARNED Counsel for the petitioner/complainant has submitted that the State Commission has failed to appreciate that the name of his mother was included in his medi -claim policy only after the necessary medical tests asked for and prescribed by the respondent/opposite party were taken. He further contends that the ailment i.e. malignant lung cancer for which his mother was diagnosed occurred only after her name had already been incorporated in the mediclaim policy. In the absence of any evidence/documents to prove that she was suffering from the disease at the time or prior to the inclusion her name in the policy, the State Commission has totally gone wrong in holding that it was a case of pre -existing disease. Countering the reliance placed on the expert opinion of Dr. Alok Chowdhury and Dr. P.K. Goyel for repudiation of claim, the Counsel submits that these were panel doctors of the respondent/opposite party - Insurance Company and, therefore, no reliance can be placed on their opinion specially when medical literature supports the contention that such a disease can appear all of a sudden without any prior indication. He, therefore, contends that the State Commission has erred in coming to the conclusion, it has simply based on presumption and conjectures. Learned Counsel for the respondent/opposite party on the other hand has contended that the State Commission has taken into consideration the circumstances, conduct of the complainant and the evidence including the expert opinion and very rightly held it to be a case of pre -existing disease falling under clause of exclusion. He submits that once the respondent/opposite party have produced the expert opinion from two different doctors who are specialist in their field and their categorical opinion was that the disease from which the mother of the complainant suffered i.e. type of cancer cannot develop within one month, as it involves transfer of disease from its primary site to distant part of the body and such a transfer/spread is not possible within one month without giving any alarm (sign and symptoms) to the patient; it was for the complainant to rebut and challenge the same. This evidence of the respondent/opposite party has neither been contested by the complainant nor has there been any request for the cross -examination of the doctors. When this aspect is viewed with the conduct of the complainant where he decides to incorporate the name of his mother after a long gap of eight years from the date of obtaining the mediclaim policy and her falling ill within a month, the State Commission was fully justified in holding that it was indeed a case of pre -existing disease. He, therefore, submits that the order of the State Commission being fully legal and justified needs no interference at the stage of revision.

WE have heard the learned Counsel for the parties carefully and also have perused the records of the case.

NO doubt, the onus to prove that there has been a suppression of material fact with regard to the pre -existing disease rests heavily on the Insurance Company i.e. respondent/opposite party. In this case, the Insurance Company has produced expert opinion of two specialist doctors who may be on their panel but unless their opinion is rebutted/controverted with the opinion obtained from another set of experts, it would be unfair to ignore the evidence specially when they are corroborated by other factors. In this case, the C.T. Scan report dated 20.12.1999 states that "the picture is suggestive of metastatic adenocarcinoma with papillary". Further it goes on to state that "metastasis from ovarian malignant tumour may be considered". Further, after this investigation, the ailment was diagnosed as a case of metastatic C.A. front at area of brain, left chest and right ovary as per the discharge summary of the Nursing Home. As rightly explained, metastatic means transfer of disease from its primary site to distant part of the body. Therefore, if the cancer developed in the ovary, it would have spread to the other organs and to the lungs subsequently. This, obviously would have taken some time and must have given some signs or symptoms before hand. The Medical literature referred to by the petitioner which states that 90% of the screened patients who develop lung cancer are a symptomatic, would not be quite relevant since in the case in hand the cancer originated in the ovary and appears to have spread to the lungs subsequently and in that sense, the reliance placed by the learned Counsel for the petitioner is misplaced. Further, it could not be said to be a sheer coincidence that the mother of the complainant fell ill within a month from the incorporation of her name in the mediclaim policy.

NO doubt the bare minimum requirement of obtaining a report of blood sugar and electro -cardiogram were followed by the respondent/opposite party - Insurance Company at the time of including her name in the mediclaim policy but there was no thorough medical checkup. It is not clear as to whether when the Insurance Company provides cover under the mediclaim policy to a person who is 73 years old, it was necessary for them to have undertaken a thorough medical checkup. From the facts of the case, it appears that there was no such requirement at that point of time. However, since the complainant has not challenged the medical opinion, the same when viewed with other circumstances carries considerable weight to clinch the issue. Good faith is integral of a contract of insurance. The State Commission, in our view, has rightly concluded that it was a case of suppression of a pre -existing disease. Under the circumstances, we find no merit in the revision petition and dismiss the same, however, with no order as to cost. R.P. dismissed.