State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027


S.C. CASE NO-378/A/07





DATE OF FILING : 12.10.2007 DATE OF FINAL ORDER:2.4.09



APPELLANTS/COMPLAINANTS :

1. United India Insurance Co Ltd.

Regional Office,

38B, J.L. Nehru Road,

Kolkata-700 071,

P.S- Park Street.





RESPONDENTS/O.P.S : :



1. Minor Siddhartha Nath.

Represented by Manab Kumar Nath ( Father)

37, B.B. Gupta Road, P.O- Khagra,

Dist- Murshidabad.



BEFORE : HONBLE JUSTICE :

MEMBER : Shri. A.K. Ray.

MEMBER : Shri. P.K. Chattopadhyay.

FOR THE PETITIONER / APPELLANT:Shri S.K.Basu, Ms.Indrani Basu .(Advocates)

FOR THE RESPONDENT / O.P.S. : Shri B. Roy Chowdhury. ( Advocate)








Shri A.K. Ray., Member,



The Appeal is directed against the order dated 14.9.07 passed by the Dist Forum, Mursidabad in case no 6 of 2006. The Forum below allowed the complaint on contest against the OP Insurance Company with a direction to pay a sum of Rs. 1,50,000/- being the assured sum of mediclaim policy to the Complainant within two months from the date of the order, in default , interest @ 9 % p.a would accrue from the date of filing of the petition of complaint till actual payment.



The Appellant has filed the instant appeal mainly on the grounds that the Forum could not consider that the Complainant/ Respondent willfully suppressed the fact of pre-existing disease in the proposal form and the insured father was well aware of the disease of his insured minor son.



The case in brief is that the Complainant took Insurance Mediclaim Policy with the OP Insurance Company by the said policy . The Complainant himself , his wife , his daughter and minor son ( Siddhartha ) were covered against mediclaim expenses under hospitalization and domiciliary benefit policy. The minor son of the Complainant was born without having any congenital disease which could be evident from the discharge certificate issued by the hospital. The aforesaid 4 members of the family of the Complainant were insured by the OP Company assuring a sum of Rs. 1,50,000/- each under the said policy. The minor son namely Siddhartha Nath was admitted on 13.7.04 with fever for 2 days in Apollo Gleneagles hospital, Kolkata. The child was treated by the Department of Neuro Surgery and Pediatric. Necessary investigations were done including C.T. Scan. The child patient was discharged on 16.8.04. Thereafter the said child was admitted to Apollo Hospital in Chennai on 20.8.04. After necessary investigations he was operated on 23.8.04. He also underwent surgery on 6.9.04 for removal of right side V.P. Shunt. On 5.10.04 and lastly on 26.10.04 he underwent surgery and he was released from the hospital on 20.11.04. The Complainant incurred expenses for a sum of Rs. 8,47,589/- for medical treatment of the said son including medicines , investigation charges, hospital charges, conveyance charges, cost of board and lodging etc. The Complainant submitted claim for reimbursement of the amount payable under the aforesaid policy along with all the papers including the bills etc. But the OP Insurance Company repudiated the said claim on the plea that minor son had been suffering from Congenital Hydrocephalous with VP Shunt. The OP Insurance Company made inordinate delay of 4 months in settling the claim which itself amounted to deficiency in service . The fact of hospitalization of the baby was immediately intimated to the OP Insurance Company on 23.7.04. There was no suppression or concealment on the part of the Complainant with regard to the disease of the said minor son.



The OP Insurance Company contested the case by filing WV denying the allegations of the Complainant. It contended inter alia that on receipt of the claim petition from the Complainant the OP investigated the matter and also obtained a medical opinion over the claim of the petitioner. Investigation report revealed that the claimant was born on 11.12.02 and he was admitted to Chennai with complaint of Congenital Hydrocephalous since birth. His right sided V.P Shunt was operated on 27.12.02 and he was admitted to Apollo Gleneagles hospital in Kolkata on 12.6.03 where he underwent Contra –lateral V.P Shunt and was discharged on 17.6.03. Thereafter he was admitted on 26.8.03 at Kolkata for post operative problems and was discharged on 3.8.03. He was again admitted on 13.7.04 at Kolkata for congenital Hydrocephalous with bilateral V.P. Shunt. Opinion of a renowned Neurologist,Dr. S. Pal, had been obtained and he opined that the claimant had been suffering from obstructive Hydrocephalous due to germinal matrix bleed for which he had undergone V.P. Shunt at the age of 12 days i.e on 27.12.02 and later he had under gone Contra Lateral V.P. Shunt and was again admitted on 26.8.03 for fever with convulsion. He was admitted on 2.8.04 at the Apollo Chennai where he under went repeated operations and was discharged on 2.11.04. The said doctor Pal also opined that the claimant had been suffering from his aforesaid disease since birth. The father of the Complainant intentionally suppressed everything at the time of taking the policy. Accordingly, claim of the claimant was repudiated by the OP on the grounds of pre-existing disease and suppression of material fact.



In their written argument the Appellant Insurance Company further stated that the minor child Siddhartha Nath was suffering from congenital Hydrocephalous since birth which was suppressed by the Complainant willfully while taking the mediclaim Insurance Policy and therefore the repudiation of claim was just and proper. The Complainant was well aware of the disease of his minor son. A contract of Insurance is based on utmost good faith and any violation of it will disentitle the claim of the insured. The documents filed in this case need not be proved by examination of doctors of Chennai or Kolkata. It was admissible in evidence. Moreover, it was not a case of medical negligence. The medical papers filed in this case would go to prove the preexisting disease . The Forum below was wrong in holding that the documents filed in support of the case of the Insurance Company could not be said as documentary evidence as those had not been proved by examination of the doctors of Chennai or Kolkata and it was a gross mistake on the part of the Ld. Forum in making such comment. The relevant documents filed before the Forum below by the OP Insurance Company included :

(i) Discharge summary issued by the Apollo specialty hospital , Channai.

(ii) Certificate issued by Dr. S. Pal dated 7.3.05.

(iii) Mediclaim Insurance proposal form in question .

(iv) Mediclaim Policy copy.

(v) Copy of investigation report dated 7.3.05.

(vi) Later of repudiation by the Insurance Company dated 5.5.05.

(vii) Hospital records of Apollo Gleneagles Hospital , Kolkata.





Minor Siddhartha Nath was born on 11.12.02. He under went operation of right sided V.P Shunt when he was 12 days old. When he was 6 months old, he underwent an operation of Left sided V.P. Shunt at the Apollo Gleneagles Hospital in Kolkata with a diagnosis of Congenital Hydrocephalous with V.P. Shunt. The mediclaim policy was taken on 6.7.04 suppressing the fact of pre-existing disease in the proposal form. A person seeking insurance coverage is legally bound to disclose all the known facts about his health at the time of filling of the proposal form.



In his written argument filed before was on 7.11.08 the Respondent ( father of minor Siddhartha Nath) stated inter alia that his son was born in Wood Land Hospital and Medical Research Centro, Kolkata on 11.12.02 in a normal condition and was discharged from the said hospital on 18.12.02 without symptom of any Congenital ailment. After discharge from the said Hospital the minor baby was quite normal , but on 13.7.04 the said baby was taken to Apollo Gleneagles Hospital at Kolkata for suffering from high fever for two days. He was admitted in the Hospital for removal of right side V.P. Shunt on 6.9.04 and 5.10.04 and thereafter on different days both in Kolkata and Chennai.



The mediclaim policy in question was taken by the father of Minor Siddhartha Nath for hospitalisation and domiciliary benefit for the first time along with other members of the family as a Combined Insurance policy commencing from 6.7.04 to 5.7.05 . For medical treatment of the said minor Son the Present Respondent had incurred substantial amount both in Kolkata and Chennai though the amount of Rs. 1,50,000/- was covered under the policy for medical treatment. He submitted necessary documents to the office of the Appellant for reimbursement of the amount covered under the policy. The Appellant Insurance Company engaged their panel investigator for verifying the authenticity of the documents filed by the Respondents in support of the claim. They also obtained an opinion from one Dr. S. Pal who was not attached to the Insurance Company as their panel doctor nor he ever treated the minor Siddhartha . Further the said doctor did not file any evidence on affidavit before the Forum below at the time of trial of the complaint nor did he adduce any evidence regarding the genuineness of his opinion submitted to the said investigator on 7.3.05. As such the opinion of Dr. Pal had no legal footings to be considered as authenticated in the eye of law. The Forum was right in turning down the said opinion of Dr. S. Pal. Obviously on the basis of opinion of Dr. S. Pal and the investigation report, the Appellant Insurance Company repudiated the claim of the Respondent on the grounds that the disease suffered by Master Siddhartha Nath was pre-existing and congenital .The Appellant Insurance Company without applying proper insurance mind had illegally repudiated the claim of the Respondent without going through the exclusion clause incorporated in the policy vide column no 4.3. The said exclusion clause according to the Respondent , did not disclose any exclusion of the disease suffered by the minor son of the Respondent .As such the Respondent while filling up the proposal form was not required to disclose the treatment done towards the ailments suffered by his minor son. The Appellant Insurance Company therefore illegally repudiated the claim of the Respondent . But the Forum below rightly considered the complaint of the Complainant and made the awards.



The Forum below in its impugned judgement observed interalia that it is now well settled that onus probandi lies heavily on the insurer , i.e the OP to establish by cogent oral and documentary evidence that the claimant had been suffering from preexisting disease which he had suppressed while submitting the mediclaim policy. The OP stated in the pleadings that one renowned Neurologist Dr. S.Pal was consulted and his opinion was obtained. That being the position the said Dr. S. Pal was required to be examined in this case ; but he was not examined to prove the veracity of his opinion. No explanation was offered from the side of the OP as to what prevented them from examination of this vital witness. The Forum also relied on a decision of the National Commission reported in (2007) I WBLR (CPNC) 471 wherein it was held (quote) In our view, the Insurance Company has erroneously relied on the certificate of Dr. Agarwal because it was based on medical text and not based on the reports as the case papers were not given to him for reasons best known to them. He gave the final opinion only in the year 2003 after the Insurance Company sent the case papers of the Complainant. The report of Dr. Agarwal gave on 10.1.03 also assumes that the Complainant must have had treatment elsewhere is not proved by him or by the Insurance Company. We cannot rely on such assumptions and presumptions of experts. He has not seen nor examined the insured and hence , he cannot say that the insured was having knowledge of heart disease. (Unquote).Mere filing of the documents by the doctors were not sufficient as the cross examination of the doctor was very much necessary and at least an affidavit should have been sworn in support of their contentions as stated in the discharge summary and other papers of the hospital. Forum was of the view that it was the bounden duty of the Insurance Company to examine the doctors and to prove the papers as exhibit. According to the National Commission (2007) CTJ 131 ( CP) (NCDRC) opinion of the experts of the insurer , who had neither seen nor examined the insured, did not establish that he had knowledge of the disease at the time of taking the policy . The OP Insurance Company could not therefore prove by cogent oral or documentary evidence that the claimant had undergone operations for more than once in the hospitals of Chennai and Kolkata. The Documents filed in support of the case of the Insurance Company could not be considered as documentary evidence as they had not been proved by examination of the doctors of Chennai or Kolkata.



We have heard the parties to this case at length and have gone through the impugned order of the Forum below along with other written submission of the parties to this case. Admittedly on receipt of the claim from the Respondent along with relevant documents, the Appellant Insurance Company engaged their panel investigator for verifying the same. An opinion for one Dr. S. Pal was also taken. Dr. Pal was not at all attached to the Insurance Company as their panel doctor. He also did not treat the minor Siddhartha .Moreover the said doctor did not file any affidavit before the Forum below at the time of trial of the complaint nor did he adduce any evidence in support of his opinion submitted to the investigator on 7.3.05. Obviously, the said opinion of Dr. Pal had no evidential value in the eye of law. The Forum below was therefore right in not accepting the said opinion of Dr. Pal. In the light of what has been discussed above, it is difficult on our part to interfere with the impugned order of the Forum below as we do not find any infirmity or irregularity in the said order. The appeal therefore fails to succeed.



Hence, It is ordered that the appeal be dismissed on contest with cost of Rs. 1000/- to be paid to the Respondent by the Appellant. The impugned order of the Forum below be affirmed. The decretal sum aforesaid would be required to be paid within 30 days from the date of communication of this order & in default , further interest @ 10% p.a would accrue on the said decretal sum.







Member Member