IN THE STATE COMMISSION: DELHI

(Constituted under Section-9 Clause (b) of the Consumer Protection Act, 1986)




Date of Decision: 20-03-2009



Appeal No. FA-943/06

(Arising out of Order dated 14-08-2006 passed by District Forum (North), Tis Hazari, Delhi, in Complaint No. 410/2004)











Life Insurance Corporation of India,

Divisional Office No.1,

25-K.G. Marg,

New Delhi 110001. ….. Appellant

Through Mr. G.L. Chawla, Advocate







Versus





Smt. Sangeeta Karwa,

195, Tagore Park,

Model Town,

Delhi 110009. …. Respondent


CORAM


JUSTICE J.D. KAPOOR, PRESIDENT

MS. RUMNITA MITTAL, MEMBER



1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



JUSTICE J.D. KAPOOR (ORAL)



1. This appeal is directed against Order dated 14-08-2006 passed by the District Forum whereby the appellant insurance company has been directed to settle and pay the claim of two policies for Rs. 5.00 Lacs and Rs. 2.8 Lacs in respect of Mr. Tarun Karwa, the deceased husband of the respondent, forthwith after processing the same and in accordance with law and after obtaining the requisite documents if not already furnished along with details of premium paid by her after the death of her husband. Appellant has also been directed to allow waiver of premium for remaining three policies of three children and pay Rs.10,000/- as compensation and Rs. 5,000/- cost of litigation.



2. Admittedly, the aforesaid two policies were taken on 28-01-2002 and 28-03-2002 respectively. The deceased insured was discharged from Pentamed Hospital on 23-02-2003 after having been admitted for Bronchial Asthma. The claim was rejected on the ground of concealment of pre-existing disease of Bronchial Asthma and having committed breach of good faith. Other documents that formed the basis for rejection of claim is medical record of treatment at Apollo Hospital in the year 1999.



3. So far as Apollo Hospital treatment is concerned the observations are:

“Course in the Hospital:-

Patient was brought to the hospital in a sate of severe respiratory distress. He was managed conservatively in the medical ICU by O2, Nebulizers, antibiotics, bronchodilators and steroids. He responded to them well but developed epigastric tenderness and vomiting. Dr. S. Jain, Gastroenterologist, was consulted for the same who started with Rantac, Sparcid for him. Dr. Samant, ENT Consultant was consulted for ENT complaints. In the last week of his stay in the hospital he had severe episode of watery diarrhea, abdominal pain and vomiting. Dr. S. Jain was consulted again for that who managed him conservatively on Metrogyl and Cifran. Colonoscopy was done which was normal. Patient is being discharged in a satisfactory condition.”





4. As regards the treatment at Pentamed Hospital the discharge summary is to the following effect:-

“K/C of Bronchial Asthma and NIDD for 6-8 months with sudden cardio-respiratory arrest, resuscitation done. Pt. on ventilator. SIMV mode wih 70% Fio2.



HOPE- K/C of Bronchial Asthma for 6-8 months. Admitted with complaint of unconsciousness for last 15 min. H/O fall in bathroom which was noticed by the wife. H/c diabetes mellitus for 6-8 months.



O/E - Pt. unconscious. BP un-recordable. Heart-No heart sound. Resp -No spontaneous activity. “

ase of age-27 B



5. So far as the course in Apollo Hospital is concerned, he was taken there in a state of severe respiratory distress but was managed conservatively in the medical ICU through Antibiotics, Broncho Dilators, and Nebulizers etc. Thereafter he did not have any problem for three long years and was admitted in Pentamed Hospital in February, 2003. So far as pentamed Hospital is concerned, it only states that he was having some problem of Bronchial Asthma for the last six months or so.



6. So far as the policy obtained on 28-01-2002 is concerned, there was no concealment of factum of having suffering from any pre-existing disease of bronchial asthma though he might have suffered some problem and received treatment 3-4 years back to which he had responded well.



7. On the meaning, import and interpretation of “disease” and “pre-existing disease” for the purpose of invocation of exclusion clause we have drawn out certain criteria culled out from various judgment of the Supreme Court which are as under:-

“(i) ‘Disease’ means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim or life insurance policy.



(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to “pre-existing disease”.



(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of ‘pre-existing disease’ for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.



(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a ‘diseased person’ as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.



(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as ‘diseased person’. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy or a life insurance policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is ‘exclusion clause’ invokable.



(vi) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the ‘discharge summary’ of the insured by invoking the ‘exclusion clause’ or non-disclosure of ‘pre-existing disease’ unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.



(vii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of ‘pre-existing disease’ while taking mediclaim or life insurance policy as after being cured of the disease, he does not suffer from any ‘disease’ much less the ‘pre-existing disease’.



(viii) For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age, say for 20 years or so.



(ix) Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of the mediclaim or life insurance policy, as the case may be, is the only ground on which the claim can be repudiated and on no other ground.



8. We have taken a view that unless and until a person receives treatment for a particular disease or is hospitalized or is operated upon for a particular disease in the near proximity of the taking of the policy, i.e. before a year or so, he cannot be held guilty of concealment of the factum of any pre-existing disease for which he might have landed in the hospital or received treatment for long.



9. In the instant case, even the treatment received by him at Pentamed Hospital was after a year or so after taking the policy dated 28-03-2002 and the treatment record clearly states that he was suffering from some problem of bronchial asthma only for the last six months or so. Therefore, even with regard to the second policy dated 28-03-2002 there was no concealment of any pre-existing disease.



10. Taking over all view of the matter, we deem that the rejection of claim against the policy issued in January, 2002 was not justified whereas the appellant was justified in rejecting the claim against the policy taken on 28-03-2002 as it was hardly a year after he was admitted in the hospital for such a treatment.



11. The appellant can also be held guilty for its own act of omission and commission so far as its failure, to subject the insured to basic medical examinations to find out whether he was suffering from any such disease or serious ailments that may result in his death within duration of nine months or a year, is concerned.



12. We are taking this view because of the gap of more than three years between the treatment received by the deceased for bronchial asthma and taking of the policy, but it appears that the deceased was conscious that his condition was deteriorating and then obtained another policy within the duration of two months.



13. Foregoing reasons persuade us to partly allow the appeal by upholding the direction for payment of Rs. 5.00 Lacs only against the policy dated 28-01-2002 and by maintaining rest of the directions contained in the impugned Order.



14. Appeal stands disposed of in aforesaid terms.



15. Order shall be complied with within one month from the date of receipt of a copy of this Order.



16. Copy of Order, as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record.



17. FDR/Bank Guarantee, if any, be released under proper receipt.