GITA MOHAPATRA vs General Insurance Corporation of India

THIS is an appeal against the order dated 11.5.1999 of the District Forum, Cuttack dismissing the complaint petition of the complainant.

COMPLAINANT''s case is she and her husband purchased 1900 units of GIC Mutual Fund and the scheme allowed personal medical insurance benefits. While the said mutual fund certificates were valid, the complainant was treated for some heart ailment on 5.7.1994 and on examination she was found to have heart-block and was advised as a matter of treatment by the doctor to go for an implantation of a pace-maker. Since the facility for such implantation was not available in Orissa, she was referred to Anandalok Hospital at Calcutta where she was admitted on 9.7.1994. She sent a claim form on 1.8.1994 with cash memo receipts etc. to the Insurance Company and subsequently on the request of the Insurance Company she also sent the original pass-book and copies of the unit certificates duly signed and copies of the test report duly attested by the doctor of the Nursing Home for the purpose of processing the claim. But the Insurance Company repudiated the claim on the ground that their panel of doctors who examined the case found her suffering from Hypothyroidism which fact the complainant suppressed in his proposal form. When her efforts turned futile she approached the District Forum which passed the impugned order dismissing the complaint petition holding that hypothyroidism is a disease of which the complainant was suffering earlier and this she suppressed in the proposal form. We have heard Mr. K. Patnaik, the learned Counsel for the complainant and Mr. S.D. Das, the learned Counsel for the Insurance Company, both of whom have advanced extensive argument. While Mr. Patnaik has drawn our attention to the various Annexures from 1 to 13, Mr. Das while also referring to those documents, highlighted contents of Annexure-14 i.e., the letter dated 4.12.1995 of the complainant addressed to the Regional Manager, National Insurance Company Ltd. and streneously urged that the complainant stated for herself that she was of the impression that hypothyroidism is a deficiency and could be cured by medicines and hence there was an omission of the same in the proposal form. Mr. Das has relied on the decision in the case of United India Insurance Company Ltd. v. Gurdeep Singh Oberoi, reported in II (1999) CPJ 48 (NC); L.I.C. of India v. Smt. S.S. Lal Patm, reported in II (1996) CPJ 67 (NC)=1996 (2) CPR 87; New India Assurance Co. Ltd. & Anr. v. P.P. Khanna, reported in II (1997) CPJ 1 (NC); New India Assurance Company Ltd. v. J.A. Mansoor, reported in III (1999) CPJ 30, to sustain the view that the claim of the complainant has rightly been rejected on the ground that she suppressed material facts. The respective contention of the Counsel for the parties are disposed of in the following manner.

There is no dispute with regard to the complainant and her husband purchasing 1900 units of GIC Mutual Fund Certificates and there is also no dispute in regard to the fact that medical benefit were included in the scheme as is indicative from the reverse side of the GIC Mutual Fund Certificates which we have verified in the Court for ourselves. Further the Insurance Company in reply to this claim of the complainant in her complaint petition in paras-2 and 3 have not denied the fact in their written version vide para-4 where they merely stated that the facts stated in paragraphs 1 and 2 needs no comment. Therefore, this part of the case of the complaint is an admission by the O.P. by non-traverse.

ONCE it is admitted that a medi-claim is permissible under the scheme the question remains for consideration whether the complainant suffered from the ailments of heart block. Secondly, whether she was treated and thirdly what expenditure she made for the treatment and fourthly whether repudiation of the claim by the Insurance Company in the facts and circumstances of case is justified. In the written version the opposite party-Insurance Company mentioned that they had no information or knowledge about the ailment of the complainant from such disease. Nowhere they asserted that she was suffering from this ailment and was treated by any physician any time since 1990 and thereafter. These facts have not been specifically averred, yet on the basis of their case that infact they had gone through the medical papers of the complainant and that those papers were examined by their panel of doctors. It is amply proved that complainant suffered from heart ailment and was treated by the physician and was advised to go for implantation for a pace-maker. These facts having been proved beyond doubt the next question only remains for consideration whether repudiation of the claim by the Insurance Company was justified.

IN para-22 of the written version the INsurance Company pleaded that though the complainant was suffering from the disease of hypothyroidism since 1990 she did not disclose the same in the proposal form against Columns 8(a)(b) and 9 of the proposal form, and this non-disclose laid to the acceptance of risk in good fault with specific exclusion of disease of hypothyroidism. Had she mentioned this in the proposal form, the opposite party would not have accepted the risk and, therefore, this amounted to suppression of material fact. The learned Counsel while drawing the attention of the Court to para-22 of the written version also drew our attention to Annexure-14 to prove that the complainant admitted in her own letter that she was suffering from hypothyroidism but believed it to be a deficiency which could be ''supplemented'' by medicines. Copied with this admission of the complainant the learned Counsel also drew our attention to the opinion of the panel of doctors who opined that hypothyroidism may occasionally lead directly to heart-block though not complete heart-block. On the basis of the opinion the learned Counsel strenuously urged that the claim has been rightly rejected by the District Forum. We have carefully gone through these documents on record. We find there has been a wrong approach given to the case by the District Forum. The reason that the complainant suppressed the material facts is found to be incorrect and, therefore, not acceptable to us. The reason being as follows : The document i.e. Annexure-14 dated 4.12.1995 which has been so much relied on by the lower Forum to hold that the complainant admitted that she had hypothyroidism, has not or cannot be taken to be an admission by the complainant so as to bind her. Law is well settled that admissions are not conclusive proof of the facts admitted but they are liable to be explained in a given situation. In the present case the complainant is a lady and herself is not a doctor nor an expert to know at the time of furnishing the proposal form that she was suffering from the hypothyroidism and secondly that such a disease was surely to lead to heart-block. It is the knowledge and information regarding the ailment which is rather an essential element to bind her for the admission she made in Annexure-14. Her writing that the ailments or the deficiency could be supplemented by medicines cannot be construed that she had the necessary and positive knowledge that she was suffering from a disease that might lead to heart-block. Therefore, we do not consider her admission in Annexure-14 to be an admission of a fact so as to judge it against her. Secondly the panel of doctors of the Insurance Company did not examine the complainant nor the Insurance Company took any step to get the complainant examined by them. Their opinion is purely based on the documents placed before them. An opinion based on the opinion of another is certainly not the opinion which can be considered to be a substantive evidence before the Court competent to take evidence. There is no opinion of one or any one of the panel of doctors who gave the opinion that hypothyroidism was a disease which leads to heart-block. Thirdly, even assuming such opinion to be considered as correct, yet the opinion is that such a disease leads to only one percent heart-block though not complete heart-block. It is very difficult for a patient having no knowledge in medical science to know the extent of damage caused to her heart or is likely to cause and in any case if the disease, according to the opinion would lead only to 1% of heart-block, it should not be conclusively held that the only reason for a heart-block would be the disease like hypothyroidism. Needless to say that common knowledge, that heart-block results on account of many other factors and it would be idle to elaborate them for the present case. Judging the particular case before us we are to go by referring to the documents and medical papers available on record which do not indicate that the heart-blockage in the case of the complainant was the direct cause of hypothyroidism. There is no opinion that in the present case it was only hypothyroidism which was responsible for causing the heart-block. No such opinion is available on record. Therefore, we do not accept the contention of the Insurance Company that they are justified to repudiate the claim. This aspect having not been considered by the District Forum, the judgment is vulnerable one and is liable to be set aside.

SO far as the amount under the insurance claim is concerned, we feel it appropriate to limit the same to the expenses incurred by her for the operation, the instrument and the medicines which are supported by vouchers which comes to Rs. 46,326/-. We are of the view that the mediclaim under the particular scheme would not include the other incidental expenditure incurred by the complainant, such as travelling expenses from Cuttack to Calcutta and expenditure for the attendants etc. The amount awarded above is the amount that certainly belonged to the complainant since she had purchased the units and thus had a right to the amount as per the terms and conditions of the mutual fund. This amount, as per our judgment certainly remained with the Insurance Company which they should have paid it but for the fact that they repudiated the claim though on an untenable ground. Therefore, we have felt it legitimate to grant a lump sum interest of Rs. 15,000/- besides the amount mentioned above with a sum of Rs. 5,000/- towards the cost of litigation. Thus the total amount comes to Rs. 66,326/- which the Insurance Company have to pay within 60 days from the date of communication of the order. Appeal allowed.