Oriental Insurance Co. Ltd. vs A. SANKARAN

-THE complainant made a claim for recovery of hospitalisation expenses incurred by him by virtue of the medical policy namely Hospitalisation and Domiciliary Hospitalisa-tion Benefit Policy which he had with the opposite party for a period from 6.3.1996 to 5.3.1997.

THE opposite party disputed the claim saying that the hospitalisation had taken place and the illness had occurred within 30 days of policy and it was a pre-existing illness. THErefore, the exclusion clause will apply and hence they are not bound to pay the amount. The lower Forum, however, rejected the contentions of the opposite party and directed the opposite party to pay a sum of Rs. 28,148/- together with interest at 12% per annum from 9.4.1996 with cost of Rs. 1,000/-. Hence, the present appeal by the opposite party.

The period of insurance cover was from 6.3.1996 to 5.3.1997. Here the complainant had undergone surgery on 9.4.1996. The diagnosis done was Calculus Cholecystitis. The opposite party, therefore, would contend that the hospitalization having been done within 30 days for an illness that was pre-existing, they are not liable to honour their commitment. Per contra, the complainant would show that it was not a pre-existing ailment. Ex. A4 is the letter written by the complainant to the Divisional Manager of the opposite party wherein he has stated as follows: "....it was decided that I should undergo emergency laparascopic cholecstectomy to avoid any internal bursting of gall bladder distended and thick walled."

THE opposite party also refers to another letter of the complainant which is marked as Ex. A11. In the said letter in paragraph 4.4., it is stated that the "Histopathology (Biopsy) Report Dr. Rama Mani forming part of case file not given its due attention, clearly states under finding/impression - sub-acute to chronic cholecystitis, severe". THE histopathology report is marked as Ex. A16 which reads as follows: "Macroscopic findings : Section shows wall of gall bladder with extensive ulceration. THEre is considerable fibrosis with diffuse infiltra by foamy and granular histiocytes, lymphocytes and plasma cells. Lamina propria also shows infiltration by lymphocytes, plasma cells and scattered eosinophils." "Impression : Sub-acute to chronic cholecystitis, severe."

Basing his argument upon these reports and letters of the complainant, the learned Counsel for the appellant would argue that under Clause 2.1.14, all diseases/injuries which are pre-existing when the cover incepts for the first time are excluded. He also refers to Exclusion Clause 2.1.1. Exclusion Clause 2.1.1. reads as follows: "2.1.1. Any disease other than those stated in Clause 2.1.13, contracted by the insured person during the first 30 days from the commencement date of the policy. This exclusion shall not, however, apply if in the opinion of panel of medical practitioners 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" Exclusion Clause 2.1.13 reads as follows: "Exclusion for first year of policy for treatment of cataract, benign, prostatic hypertrophy....."

Therefore, exclusion Clause in 2.1.1. would apply only if the insured had contracted disease stated in 2.1.13. Exclusion Clause 2.1.13 does not make a mention of calculus Cholecystitis. It is not a disease excluded. The complainant can succeed only if it is shown that the disease calculus cholecystitis was contracted during the first 30 days from the commencement of the date of policy. But, however, if a panel of doctors appointed by the company for the purpose are of the opinion that the insured could not have known the existence of the disease or any symptoms thereof at the time of making of proposal, then Exclusion 2.1.1. will not apply. The complainant, of course, would say that he was not aware that he had such a disease. According to the very documents produced by him especially his own letter Ex. A4 and histopathology report (biopsy) of Dr. Rama Mani would say that it was a sub-acute to chronic disease. According to P. Ramanatha Aiyar''s The Law Lexicon, Chronic would mean persistent. "In order to distinguish a disease as "Chronic", it is necessary that it should have been of long standing as applied to diseases of a body. "Chronic" and "acute" are the antithesis of each other. An acute disease is one usually attended with violent symptoms, while a chronic disease is deep-seated and obstinate, threatening a long continuance." Impression reveals in the histopathology report is that it is sub-acute to chronic cholecystitis severe.

THEREFORE, Exclusion Clauses 2.1.1. and 2.1.14 have to be read together for deciding the liability of the opposite party in this particular case. Of course, there is no panel of doctors appointed nor there is any opinion available by any panel of doctors to show that the complainant could not have known of the existence of the disease or any symptoms complained of at the time of making the proposal for insurance to the company. But the fact remains that within 30 days of the policy, he underwent surgery for a disease not covered by the Exclusion Clause 2.1.13. In such circumstances, one has to see whether it would fall under Clause 2.1.14 which relates to all diseases or injuries which were pre-existing when the cover incepts for the first time. He has stated that the complainant was not aware of the illness or disease with which he was suffering. The appointment of a panel of doctors by the company envisaged under Clause 2.1.1. is only to see whether the complainant could or could not have known about the disease. THEREFORE, the non-appointment of such a panle of doctors is neither going to help the complainant nor the opposite party in this case. THEREFORE, we need not be bothered with the Clause 2.1.1. or the fact that the illness had occurred within a month of the date of commencement or inception of the policy. All we have to see whether the exclusion Clause 2.1.14 would cover this case or not. In other words, whether it was a pre-existing disease or not. The question of knowledge of the complainant would arise only if it is the case which squarely falls under Clause 2.1.1. But if it is a case covered by 2.1.14, then it does not matter whether the insured had knowledge or not. It is for the Corporation to show that it was a pre-existing disease and if they succeed in showing the same, the insured will be out of Court. Therefore, it is that the learned Counsel for the opposite party has been harping upon the letters of the complainant especially Ex. A4 and the histopathology report marked as Ex. A16. In his letter, the complainant has stated that he was advised by Dr. Malathi Sathiyasekaran, M.D., D.M. (Gastro) that he should undergo emergency laparascopic cholecstectomy to avoid any internal bursting of gall bladder distended and thick walled. Therefore, it shows that the gall bladder was distended and was thick walled and there was a risk of internal bursting of the same. Whether such a condition would have come about within a month of insurance is what we have to decide now. In other words, will such an injury to gall bladder would have occurred overnight or whether in the course of time, these injuries would have set in and made the gall bladder distended and thick walled. Both the sides have not produced any medical records or evidence of expert to show that such a thickening of the wall of the gall bladder and the distended nature of the gall bladder would happen within the short time or suddenly or that it will occur only over a period of years. Since it has occurred within a month, it is probable that the disease could have been pre-existing and had not come to the knowledge of the complainant. Perhaps, he did not suffer seriously or did not have any outward or external indications for him to conclude that there was something wrong with his gall bladder. Therefore, we are of the view that considering the nature of the histopathology report and the letters of the complainant, it was a pre-existing disease of which the complainant was not aware at the time when he entered into the contract of insurance with the opposite party. But we have said whether the complainant had knowledge or not does not matter since it being a pre-existing illness it comes under Exclusion Clause 2.1.14. Therefore, in view of the said exclusion clause and in the face of Ex. A4 and Ex. 16, we can only come to the conclusion that it was not a sudden onslaught but it had been persisting over a period and that it became acute only afterwards when it became necessary to go for surgery. Therefore, in such circumstances, we are of the view that the opposite party, namely, the appellant, is entitled to repudiate the contract taking shelter under Clause 2.1.14. Therefore, in such circumstances, we are unable to accept the view of the lower Forum. In the result, this appeal is allowed but in the circumstances without costs. The order of the lower Forum is hereby set aside. The complaint will stand dismissed with cost of Rs. 250/-. Appeal allowed.