MANMOHAN SINGH CHEEMA vs NEW INDIA ASSURANCE CO LTD

-THIS is an appeal against order of District Consumer Disputes Redressal Forum-I, U. T. , Chandigarh (for short hereinafter to be referred as District Forum) dated 15. 4. 2008 passed in complaint case No. 172 of 2007 : Manmohan Singh Cheema v. The New India Assurance Company Limited and Another.

BRIEFLY stated the Complainant''s case is that he took a Hospitalization and Domiciliary Hospitalization Benefit Policy from OP No. 1 on 21. 2. 2005. The policy was granted to him only after thorough scrutinizing of various medical test reports of the Complainant and after the OPs satisfied themselves about sound health of the Complainant. However, in the month of July 2005, the Complainant felt some urine problem and upon consulting Dr. D. S. Chadha, Urologist of Ganga Ram Hospital, New Delhi, which is one of the networking hospitals of the OPs, he was advised an operation. The Complainant sent the required medical forms to the OPs through FAX and OP No. 2 advised the Complainant to go ahead with the operation by spending money from self-sources and subsequently submit bills and detail for the reimbursement. Accordingly, the Complainant got himself operated on 21/22. 7. 2005 and submitted the medical bills for reimbursement. The OP after deducting transportation charges approved and calculated a sum of Rs. 33,876. 32 to be reimbursed but OP No. 2 vide its letter dated 23. 9. 2005 repudiated the claim of the Complainant on the ground that he was suffering from the pain during urination since last two years and, thus, he was suffering from a pre-existing disease. Terming the rejection of the claim as deficiency in service, this complaint has been filed. The version of OPs is that the Complainant withheld information regarding the pain while urination from which he was suffering for the last two years and, therefore, he was suffering from a pre-existing disease. It has further been denied by the OPs that they approved any bill of the Complainant for reimbursement. Reiterating that the claim had been repudiated as per Condition No. 4. 1 of the policy, the OPs plead that there is no deficiency in service on their part.

The learned District Forum going by Annexure R-2 i. e. History of Hospital Certificate, felt that it could be relied upon without even examining the doctor and also holding that misdeclaration and concealment of facts itself vitiates the policy, were of the view that there is no deficiency on the part of OP in repudiating the claim because of the concealment of pre-existing disease by the Complainant. The complaint was, therefore, dismissed vide the impugned order.

AGGRIEVED by this order of the learned District Forum, the Complainant has filed this appeal. The appeal having been taken on board, notices were sent to the OPs and record of complaint case was summoned from the District Forum. Sh. Gurdial Singh, Advocate appeared on behalf of the Appellant whereas Sh. Parminder Singh, Advocate appeared as Proxy for Mr. Paul S. Saini, Advocate for the Respondent Nos. 1 and 2. The main argument of the learned Counsel for the Appellant was that as per Exhibit C-6 even though in the entry under date 21. 7. 2005, it has been stated that the patient complains of pain during urinating for two years, he drew the attention of the Bench to the next entry, which states that there was poor flow and straining (+) only for the last two months meaning thereby that this condition of the Complainant had developed only two months prior to the operation, which clearly proves that it was a development post taking of the policy and therefore, it cannot be termed as a condition pre-existing and, therefore, the learned District Forum has erred in coming to the conclusion that repudiation was legal. In this context, he also submitted that there is no affidavit or evidence given by the doctor concerned to confirm the pre-existing disease. Thus, the learned Counsel prayed that the appeal be allowed and the impugned order be dismissed and the Complainant be granted the relief as prayed for in the complaint.

MR. Parminder Singh, Advocate, learned Counsel for the Respondents submitted that the judgment is as per settled law and the documentary proof is there to prove that the Complainant had a pre-existing disease and, therefore, the repudiation had been legally done and the impugned order being legal, just and fair should be upheld and the appeal should be dismissed. We have gone through the evidence on record as well as the impugned order and have heard the learned Counsel for the parties. It is the categoric plea of the Complainant that the policy was granted to the Complainant after a detailed checking of the medical test and reports of the Complainant. The claim has been repudiated basically on the ground of a pre-existing disease. The only document produced to confirm this is Annexure R-2 wherein under column ''history'', it has been stated that the Complainant had been having pain during urinating for two years and below that it is also indicated that there is poor flow c straining (+ ). However, in Exhibit C-6 under dated 21. 7. 2005, it has been stated "complains of pain during urination - 2 years" and further it has been stated "poor flow and straining (+) - 2 months". Both these reports are of Ganga Ram Hospital. Since, there is a disparity in both of these, there was definitely a requirement to take evidence of the treating doctor to get the correct picture. However, the same has not been done by the OPs on whom the onus lay to prove pre-existing disease. In our opinion, a mere mention of pain during urination for the last two years without any positive finding of a disease or diagnosis and that any treatment record for the same, cannot be construed to mean a pre-existing disease for which the claim could be repudiated. The authorities mentioned in the impugned order, notwithstanding, in our considered view in the instant case, the OPs have clearly failed to prove that the Complainant was suffering from a pre-existing disease by giving any cogent medical evidence. Thus, we find that the impugned order does not stand legal scrutiny.

CONSEQUENT to the foregoing discussion, the appeal is allowed and the impugned order is set aside. The OPs are directed to pay the Complainant an amount of Rs. 33,876. 32 along with interest @ 12% per annum from the date two months after the date of filing the claim till actual payment. The OPs are also directed to pay the Complainant an amount of Rs. 1,100 as costs of litigation. It is further directed that the order be complied with within 30 days from the date of copy of the order.

COPIES of this order be sent to the parties free of charge. Appeal allowed.