NATIONAL INSURANCE CO LTD vs V L Jain

THE complainant and his wife took a mediclaim policy from the petitioner -National Insurance Co.Ltd. for the period from 18 -08 -2004 to 17 -08 -2005. The case of the complainant is that the policy was purchased for the first time in the year 1998 and thereafter it was purchased continuously till the year 2004. On 09 -12 -2004 the wife of the complainant namely, Smt. Nirmal Jain who was the other policy holder along with the complainant was admitted in G.B. Pant Hospital with complaint of angina class II. It was recorded on the basis of the documents furnished by her that she was a known case of hypertension for last eight years. On clinical evaluation and investigations, she was diagnosed as a case of HTN, CAD AOE II. She was treated with PTCA and discharged on 14 -12 -2004. The claim submitted to the insurance company, however, was repudiated on the ground that it was inadmissible as per the exclusion clause 4.1 of the policy. Being aggrieved from the denial of the claim, the complainant, Shri V.L. Jain, approached the District Consumer Disputes Redressal Forum III, Delhi (for short, the District Forum) by way of a complaint. The District Forum vide its order dated 11 -10 -2007 directed the insurance company to pay the claim amount of Rs.1,41,126/ - to the complainant along with compensation of Rs.5,000/ - including cost.

BEING aggrieved from the order of the District Forum the insurance company filed an appeal before the Delhi State Consumer Disputes Redressal Commission (for short, the State Commission). The appeal came to be partly allowed by reducing the quantum of claim from Rs.1,41,126/ - to Rs.1,00,000/ - which was the sum insured in respect of the wife of the complainant. Being still dissatisfied, the insurance company is before us by way of Revision Petition No.2648 of 2008. The complainant has also filed Revision Petition No.2660 of 2008, being aggrieved from the reduction of the claim amount from Rs.1,41,126/ - to Rs.1,00,000/ -.

CLAUSE 4.1 of the policy on which reliance has been placed by the insurance company reads as under: "Such diseases which have been in existence at the time of proposing this insurance. Pre -existing condition means any injury which existed prior to the effective date of this insurance. Pre -existing condition also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to the sickness. Complication arising from pre -existing diseases will be considered part of that pre -existing condition."

It is an admitted position before us that if the disease for which treatment was taken did not exist when the policy was taken for the first time, it would be covered for reimbursement provided the policy has been renewed regularly and without any break. Even otherwise, there is no evidence of a fresh declaration, with respect to her health having been made by the insured, every time the policy was got renewed. Thus, there is no evidence of any concealment by the insured with respect to her health. Therefore, for the purpose of deciding the revision petition filed by the insurance company we have to ascertain as to (1) whether the disease for which treatment was taken by the wife of the complainant at G.B. Pant Hospital existed at the time the policy was taken for the first time and (2) whether the policy was got renewed regularly and without any break.

The case of the complainant in para 2 of the complaint is that he had been continuously purchasing the mediclaim policy from the respondent since the year 1998 and the said policy had No.8500513 in the year 2004. Paras 1 and 2 of the reply on merits filed by the insurance company reads as under:

"1 -2 That the content of para 1&2 of the complaint of the complainant are matter of record."

In our view, by not specifically denying the averment of the complainant that he had been continuously purchasing the mediclaim policy from the respondent since the year 1998, the petitioner -insurance company admitted the aforesaid averment. If the policy was not taken continuously since 1998, the insurance company would have stated so, while responding to para 2 of the complaint, on merit. Even otherwise, no evidence was produced nor was a plea taken by it before the District Forum or before the State Commission that the policy taken in 1998 was not got continuously renewed. In view of the admission contained in the pleadings of the parties there was no necessity for the complainant to prove by leading evidence that the policy was taken for the first time in the year 1998 and it was got renewed continuously since 1998 till 2004.

THE learned counsel for the petitioner -insurance company submits that the reply filed by the insurance company cannot be construed as admission of the aforesaid averment made in the complaint and the complainant was required to prove by producing various policies issued from time to time that the policy was taken in the year 1998 and was thereafter got renewed without any break. He also submits that had it been a continuously renewed policy, the insured would have been entitled to cumulative bonus whereas the policy filed by the complainant does not have any indication of such bonus having been given to him, which in turn indicates that it was a fresh policy and not a renewed policy. However, considering the pleadings of the parties, we cannot accept the contention made by the learned counsel for the insurance company. Though the complainant who is present in the Court has brought the mediclaim policy for the period from 18 -12 -1998 to 17 -12 -1999 and 18 -12 -1999 to 17 -12 -2000, we do not want to go into the aforesaid question of fact at this stage, particularly considering the pleadings of the parties and also the fact that we are exercising revisional jurisdiction and, therefore, will not be justified in interfering with the finding of fact recorded by the fora below unless it is shown to be perverse.

THE next question which comes up for our consideration is as to whether the disease for which treatment was taken by the wife of the complainant at G.B. Pant Hospital existed at the time the policy was taken for the first time in August, 1998 or not. The learned counsel for the insurance company has drawn our attention to the clinical note of the G.B. Pant Hospital whereby it has been recorded that the patient had hypertension for eight years and angina category II for 5 -6 months, which resolved on taking Sorbitrate. A perusal of the documents relating to the treatment of the wife of the complainant clearly shows that the hospitalization of the wife of the complainant was for treatment of coronary artery disease and not for hypertension. Therefore, even if the wife of the complainant was suffering from hypertension, at the time the policy was first taken, that would not absolve the insurance company from its liability to reimburse him for the cost of treatment for angina, unless it is shown that she was suffering from angina at the time the policy was taken for the first time in August 1998. There is absolutely no evidence of the wife of the complainant suffering from angina at the time the policy was taken for the first time in August 1998. The clinical note referred to angina which got resolved on taking Sorbitrate only for 5 -6 months, would mean that the problem of angina started sometime in June July 2004. This would mean that she did not have angina in August 1998.

IT is also the contention of the learned counsel for the insurance company that since coronary artery disease is caused by hypertension, the complainant would not be entitled to claim reimbursement even if the angina had developed much later than August 1998. We, however, cannot accept the contention. There is absolutely no medical evidence on record which would show that the coronary artery disease, from which the wife of the complainant suffered and was treated at G.B. Pant Hospital was caused by hypertension. Hypertension may be one of the possible causes of CAD but certainly is not the only cause which can cause CAD. Coronary artery disease can be caused on account of several factors such as diabetes, high cholesterol, etc. Neither it is necessary that a person having hypertension would later develop CAD nor can it be said that a person who did not have hypertension will never develop a coronary artery disease. When an insurance company seeks to deny the reimbursement relying upon an exclusion clause contained in the insurance policy, the onus is upon the company to prove that the case was covered under the exclusion clause. Therefore, the onus was on the insurance company to prove that coronary artery disease, for which the wife of the complainant was treated at G.B. Pant Hospital, was caused only by hypertension from which she suffered at the time she took the policy initially in August 1998. No such evidence having been led, we cannot accept the contention that the coronary artery disease suffered by the wife of the complainant was directly attributable to the hypertension from which she suffered at the time the policy was taken for the first time.

FOR the reasons stated hereinabove, we find no merit in the revision petition filed by the insurance company.

COMING to the revision petition filed by the complainant, the only contention is that since the policy provided for medical cover of Rs.1,00,000/ - each to the complainant as well as his wife and a family discount was also given by the insurance company, the reimbursement to the extent of Rs.1,41,126/ - was admissible, considering the combined coverage of the complainant and his wife. In our view, unless there is a term to this effect in the policy, it is not possible to give cumulative benefit of the insurance cover taken in respect of the complainant and his wife to only one of them. The policy cover taken by them was for Rs.1,00,000/ - each in respect of the complainant and his wife. Therefore, both of them were entitled to reimbursement only to the extent of Rs.1,00,000/ - each. The State Commission, therefore, was justified in restricting the claim to Rs.1,00,000/ - as per the term of the mediclaim policy.

WE , however, find that neither the District Forum nor the State Commission has granted any interest to the complainant. Since the insurance company unjustifiably denied the claim of the complainant and utilized the money which ought to have been paid to him, it would be extremely unjust and unfair to deny interest to him. We, therefore, direct the insurance company to pay interest at the rate of 9% per annum, on the amount of Rs.1,00,000/ -, from the date of filing of the complaint till the date of payment. The payment in terms of this order be made within two weeks from today failing which the interest shall stand enhanced to 12% per annum from today till payment.

THE revision petition filed by the complainant stands disposed of accordingly. The revision petition filed by the insurance company is hereby dismissed.