JUSTICE SUDIP AHLUWALIA, MEMBER

          This Revision Petition has been filed by the Petitioner No.1/ Opposite Party No.1 and Petitioner No.2/ Opposite Party No.2 against

Respondent/ Complainant challenging the impugned order dated 10.03.2017 passed by the State Consumer Disputes Redressal Commission, Haryana Panchkula in First Appeal No.916 of 2015. Vide such Order, the State Commission had allowed the Appeal while setting aside the order dated 05.03.2015 passed by the District Consumer Disputes Redressal Forum, Hisar in Consumer Complaint No. 190/2010.

2.      The brief facts of the case are that the Complainant is a policy holder of TATA AIG Insurance Company Ltd. It was submitted by the Complainant that he had applied for an Insurance Plan named ‘Invest Assure Gold’ of Rs.15,00,000/- for 5 years with premium fixed at Rs.50,000/- which was to be paid semi-annually. It was further submitted that the Complainant had also taken a rider on this plan named “Critical Illness Rider” of Rs.5,00,000/-. It was also submitted that the Complainant was regularly paying premium of Rs.50,400/- (approximately) for the afore stated policy which bore no. 001810865 and was dated 31.07.2008. It was further averred that the Complainant fell ill and was admitted in Sukhda Hospital, Hisar on 28.09.2009 and was subsequently, discharged on 04.10.2009. However, the Complainant had not recovered from his illness and hence, he got himself checked by various hospitals. It was further submitted that the Complainant was informed that he had been suffering from “Pulmonary

Embolism” which is a critical illness, and the doctors gave the finding that the Complainant is highly probable for Pulmonary Thro-embolism. It was also submitted that the Complainant subsequently filed a claim and produced all the relevant documents to the TATA AIG Company Ltd. However, the claim was repudiated vide letter dated 21.01.2010 on the ground that “Pulmonary Embolism” is not a qualifying condition under the policy. Hence, the Complaint was filed by the Complainant before the District Forum seeking lumpsum amount of Rs.5,00,000/- with interest @18% per annum, Rs.50,000/- for harassment and Rs.5,500/- as litigation expenses.    

3.      The Opposite Parties appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on their part. It was contended by the Opposite Parties that Pulmonary Embolism is not ‘critical illness’ as per the terms and conditions of the insurance policy. It was further contended that the symptoms of the said disease had started appearing even 2-3 months prior to July, 2009 and the case of the Complainant falls in exclusive clause of the insurance policy. Hence, the Opposite Parties prayed for dismissal of the complaint with costs.  

4.      The Ld. District Forum vide its order dated 05.03.2015 dismissed the complaint and held that the repudiation of the claim by the Opposite Parties cannot be said as unjustified or deficiency of service.

5.      Aggrieved by the above order, First Appeal bearing No. 916 of 2015 was filed by Appellant/ Complainant before the State Consumer Disputes Redressal Commission, Haryana Panchkula.

6.      The Ld. State Commission vide its impugned Order dated 10.03.2017 allowed the Appeal while setting aside the order of the District Forum.

7.      Hence, the present Revision Petition has been filed by the Petitioners/ Opposite Parties against the above mentioned impugned order of the Ld. State Commission. It has been submitted by the Opposite Parties that the Complainant applied for the policy on 31.07.2008 which was issued to him on 28.08.2008. Further, the policy lapsed  on  01.04.2009  and  the  same was revived on 15.05.2009. It is

further submitted that on 14.11.2009, the Complainant fell ill and was admitted to Ganga Ram Hospital where he was found to be suffering from Pulmonary Embolism and on 21.01.2010, the Complainant’s claim was repudiated. The present Revision Petition has been preferred on the following grounds:   

1. That the Hon’ble State Commission has misread the terms of the policy. It is stated that there is clear difference between cerebral embolism covered under the policy and pulmonary embolism suffered by the Complainant. The Hon’ble State Commission has opted pick and choose method to allow the appeal of the Complainant. The Hon’ble State Commission has picked condition no. (ii) of the definition of stroke separately in isolation of condition no. (i);
2. That the Hon’ble State Commission erred in not considering that cerebral embolism to be covered under the policy should meet two specific conditions;
3. That the policy doesn’t cover existence of embolism in every part of the body rather it is cerebral embolism which is covered on fulfilling certain specific conditions of treatment;
4. That the Hon’ble State Commission gravely erred in interpreting the illness/ term ‘Stroke’ vis a vis “Pulmonary Embolism”. It is stated that stroke is connected to brain i.e. a neurological ailment and pulmonary embolism is connected to ailment of lungs;
5. That the Hon’ble State Commission failed to note that the subject policy is rider clause in the policy covering specific illnesses termed as ‘Critical illness Rider’ and the liability of Opposite Party is only restricted to 6 illnesses.       

8.      Heard the Ld. Counsels for the parties. Perused the material available on record.

9.      The State Commission had set aside the Order of the District Forum as it was of the view that ‘Embolism’  or ‘Thrombosis’ with which the Complainant was diagnosed, was also covered by the term ‘critical illness’ in terms of the Insurance Policy.  The relevant extracts in this regard from the impugned Order passed by the State Commission are set out as below:-

“6.       The main contention in the present case is whether this ailment is covered by critical illness or not and whether it is covered by the benefits or not.  For ready reference the benefits and exclusion clause are re-produced are as under:-

                        “Benefit’s

In the event of the insured survival for a period at lease thirty days following a first diagnosis of critical illness or first performance of any of the covered surgeries as hereinafter defined while this supplementary contract is in force, Contract (the lumpsum payment” shown on the policy.  Information page (or in the appropriate endorsement if this supplementary contract is subsequently added or modified.

Exclusions

b.         Any critical illness the signs or symptoms of which first occurred prior to 180 days following the later of the issue date or commencement Date or last reinstatement of this Supplementary contract.”

As per the policy stroke is also covered by critical illness and for ready reference the relevant portion is reproduced as under:-

(ii)       Findings on Magnetic Resonance imaging, computerized tomography or other reliable imaging techniques, demonstrate a lesion consistent with the acute haemorrhage, embolism or thrombosis.”

From the perusal of this illness it is clear that embolism or thrombosis is also covered by critical illness.  The illness was not detected initially on 04.10.2009.  when he was admitted at Sukhda Hospital at that time he was under Ante Tuber color treatment. This problem was detected for the first time on 14.11.2009 when he was admitted at Sir Ganga Ram Hospital New Delhi, which is mentioned in Annexure A-54.  If we calculate period 180 days from 15.05.2009 i.e. the date of re-instatement of policy it comes more than 183 days which is more than 180 days.  It shows that this case was covered by critical illness.  O.Ps. has miserably failed to show that he was suffering from this ailment before this date.  On the basis of pleadings it cannot be presumed that he was having this problem.  Even otherwise it is well settled proposition of law that benefit of doubt is to be given to the complainant.  Reference to this effect can be made to the opinion of the Hon’ble National Commission expressed in in Revision Petition No. 4544 of 2012 decided on 27.11.2013 titled as National Insurance Company Ltd. Vs. Gopanaboina Sathyam and revision petition No. 3236 of 2013 decided on 07.08.2014 titled as Sh. Abhishek Jain Vs. HDFC Standard Life Insurance Co. Ltd.  Learned District Forum failed to taken into consideration all these aspects, so these arguments are of no avail.  Impugned order dated 05.03.2015 is set aside.  Complaint is allowed and he is entitled for Rs. Five lacs alongwith interest @ 9% per annum from the date of filing of complaint till realisation.”

10.    Now considering the contentions urged on behalf of the Petitioners before this Commission, it would also be appropriate to revisit the reasons for which the District Forum in dismissing the complaint had observed that the condition for which ‘Pulmonary Embolism’, with which the Complainant was found to be afflicted was not the critical illness according to the Insurance coverage.  The relevant extracts in this regard in the Order of the District Forum are as below:-

“5.       Simple question before this forum is as to whether or not ‘Pulmonary Embolism,’ disease is critical illness’ as per terms and conditions of Insurance policy, covered in the insurance policy? ‘Critical illness’ has been defined in the policy as under:-

“Critical illnesses” means illnesses, the signs or symptoms of which, first commence more than 180 days, following the Issue Date or Commencement Date or the date of any reinstatement of this supplementary contract, whichever is the latest and shall include either the first diagnosis of any of the following illnesses or first performance of any of the covered surgeries stated below:-

            1.         Cancer

            2.         Stroke

            3.         Heart Attack

            4.         Coronary Bypass Graft Surgery

            5.         Kidney failure

            6.         Major Organ Transplant”

            6.         Further as per medical literature on record ‘Pulmonary Embolism’ has been described as under:-

“Pulmonary Embolism (PE) is a blockage of the main artery of the lung or one of its branches by a substance that has travelled from elsewhere in the body through the bloodstream (embolism).  Usually this is due to embolism of a thrombus (blood clot) from the deep veins in the legs, a process termed venous thromboemblosim. A small proportion is due to the embolization of air, fat, talc in drugs of intravenous drug abusers or amniotic fluid.  The obstruction of the blood flow through the lungs and the resultant pressure on the right ventricle of the heart leads to the symptoms and signs of PE.  The risk of PE is increased in various situations, such, as cancer or prolonged bed rest.

Symptoms of pulmonary embolism include difficult breathing, chest pain on inspiration, and palpitations. Clinical signs include low blood oxygen saturation and cyanosis, rapid breathing, and a rapid heart rate.

Severe cases of PE can lead to collapse, abnormally low blood pressure, and sudden death”.

7.         Therefore, ‘Pulmonary Embolism’ has nothing to do with aforesaid six diseases of critical illness namely Cancer, Stroke, Heart Attack, Coronary Bypass Graft Surgery, Kidney Failure, Major Organ Transplant.  Pulmonary Embolism is not even directly or indirectly related to these six diseases and therefore it cannot be said that complainant was suffering from any ‘critical illness’ as per terms and conditions of the insurance policy.  Therefore his claim was not entertainable by the opposite parties.

8.         Learned Counsel for the opposite parties, has also contended that even symptoms of pulmonary embolism, had appeared to the complainant 2-3 months prior to his admission in that hospital, so his claim is also time barred.  We have considered the contention, but find no merit in it.  Of course as per medical record, (page A-56), the complainant was having, passed history of chest trauma 2-3 months back prior to his admission in that hospital on 20.09.2008.  Therefrom at the most, it can be said that symptoms had appeared 2-3 months prior to his admission dated 28.9.2009, meaning thereby symptoms appeared, in the month of June or July, 2009.  But the insurance policy, came into operation only from 28.8.2008 onwards.  Therefore, symptoms of pulmonary embolism, had appeared certainly after said period of 180 days from the date of commencement of the policy.  Therefore, it cannot be said that claim of the complainant is time barred or is not covered, because of appearance of the symptoms of the deceased on that date.  Moreover in the case in hand, pulmonary embolism, was diagnosed , not on said symptoms, but on the basis of subsequent medical test much after his admission in the hospital.”

11.    The emphatic submission of the Ld. Counsel for the Petitioners before this Commission was that the Ld. State Commission while observing that “Embolism” was covered as a ‘critical illness’, had nevertheless omitted to take notice of the fact that the specific malady of “Pulmonary Embolism” was entirely different, and was not covered under the Policy.  So, the relief granted by the said Commission to the Complainant was not justified.

12.    After having going through the submission of Ld. Counsel for the Respondent on this point, as also the medical literature relied upon by him, this Commission is now to decide whether the known affliction of “Pulmonary Embolism” could have had any direct linkage with the other maladies for which the Insurance Policy did have coverage, or not.  In this regard, reference to the available medical literature on “Embolism” has been made on behalf of the Respondent.  In “Aids to Pathology”  by Michael F. Dixon, MD FRC Path, has been made in which it has been mentioned inter alia –

“2.       Fat embolism

Is the impaction of large fat globules in small arteries and capillaries. It differs from thromboembolism in that the globules are fluid and deformable and so occlusion may be temporary or incomplete.

Causes of fat embolism

                        (i)        Fracture of long bones is the major cause;

                        (ii)       Operative manipulation of fractures, e.g. in an arthroplasty;

                        (iii)      Trauma to adipose tissue (rare);

                        (iv)      Trauma to a fatty liver (very rare).

Sites and effects

                        (i)        Pulmonary fat embolism

                                    a.         Minor degrees probably have little significance;

b.         More marked embolism is associated with hypoxaemia which may result from shunting of blood through pre-capillary anastomoses.  Such shunting can also give rise to systemic embolism;

(ii)       Systemic fat embolism is never found in the absence of pulmonary embolism.  The most important site for impaction is the cerebral vasculature.  This produces multiple small haemorrhagic and ischaemic lesions particularly in the white matter which may lead to coma and death.  Multiple petechiae may be found in the skin….”.

13.    It is therefore seen that according to the available medical literature, the most important site for impaction in a case of ‘pulmonary fat embolism’ happens to be ‘cerebral vasculature’.

14.    Now according to the Insurance Policy of the Complainant, the critical illnesses covered therein included one under the heading “stroke” at Item No. 2.  It states that –

          “2.       Stroke

The first occurrence of an acute neurological event caused by a cerebral or intracranial haemorrhage, cerebral embolism or cerebral thrombosis where the following conditions are met:

(i)        There is an acute onset of objective and ongoing neurological signs that are expected to be permanent; and

(ii)       Findings on Magnetic Resonance Imaging, Computerised Tomography, or other reliable imaging techniques, demonstrate a lesion consistent with the acute haemorrhage, embolism or thrombosis.  Brain damage due to an accident, infection, vasculitis or an inflammatory disease, are excluded”.

15.    It has been argued on behalf of the Petitioners that even if the most important/likely site for “Impaction” on account of “Pulmonary Embolism’ is the cerebral area, still the Insurance coverage would come into effect only if the stage actually impacting had already been reached.  In other words, the coverage would become operative when the Pulmonary Embolism emanating from the chest had caused any damage or effect in the cerebral area, for which recourse to any cerebral surgical procedure would become necessitated.  Undisputedly, according to the Insurance, Policy terms pertaining to category “Critical Illnesses”, Pulmonary Embolism was not covered.  Its impact in the cerebral sphere which would have otherwise been covered under the ‘Critical Illnesses’ categorised as “Stroke” had also not occurred, and even otherwise there was an additional Exclusion  Clause to the effect “brain damage due to an accident, infection, vasculitis, or an inflammatory disease” are excluded.  Consequently, the Insurance Company was certainly justified in repudiating the insurance claim on account of any treatment/ surgical procedure undergone by the Complainant for the malady of “Pulmonary Embolism” in his chest area which was not included in the coverage.  The State Commission only noted that “Embolism” was covered as a “critical illness” but ignored the fact that it was “cerebral embolism” in the brain area which was covered under the “Critical Illness” of “Stroke” and not of “Pulmonary Embolism”, which pertains specifically to the chest area and was not included in the list of “Critical Illnesses”.  Consequently, the State Commission erred in setting aside the well-reasoned Order of the District Forum which had rightly dismissed the complaint.

16.  The Hon’ble Supreme Court in the case of “Export Credit Guarantee Corporation of India Limited Vs. Garg Sons International” which was delivered in deciding Civil Appeal No.1557 of 2004 alongwith other connected Appeals on 17/01/2013, had not endorsed the liberal attitude adopted by this Commission in awarding insurance claims in favour of the Complainants by extending interpretation of the terms of Insurance Policy beyond the words specified in the document itself, which was deprecated.  Consequently, the Appeals against  15 out of the 17 Respondents in whose favour the insurance claims had been allowed by this Commission, and who had not strictly fallen within compliance of the specific terms and conditions of the Insurance Policy were allowed by the Apex Court.

17.    The relevant extracts from the aforesaid decision of the Apex Court are set out is as below:-

“8.      It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words.  It is also well settled, that since upon issuance of an account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer.  Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the Parties (Vide Suraj mal Niwas Oil Mills (P) Ltd. V. United India Insurance Co. Ltd., MANU/SC/0814/2010 : (2010) 10 SCC 567).

9.        The insured cannot claim anything more than what is covered by the insurance policy.  “….the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the Parties adversely.”  The clauses of an Insurance Policy have to be read as they are….. Consequently, the terms of the Insurance Policy, that fix the responsibility of the Insurance Company must also be read strictly.  The Contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon.

  (Vide: Oriental Insurance Co. Ltd. v. Sony Cheriyan MANU/SC/0495/1999: AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd. MANU/SC/1019/2004: AOR 2005 SC 286; Sumitomo Heavy Industries Ltd. v. Oil and Natural Gas Co. MANU/SC/0540/2010: AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. Dean Chand Ram Saran MANU/SC/0327/2012: AIR 2012 SC 2829).

10.      In Vikram Greentech (I) Ltd. and Anr. v. New India Assurance co. Ltd. MANU/SC/0519/2009 SC 2493, it was held:

  An Insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself…. The Endeavour of the Court must always be to interpret the words in which the contract is expressed by the Parties.  The Court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the Parties.

(see also Sikka Papers Limited v. National Insurance Co. Ltd. and Ors. MANU/SC/0907/2009: AIR 2009 SC 2834)

11.      Thus it is not permissible for the Court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance.  No exceptions can be made on the ground of equity.  The liberal attitude adopted by the Court, by way of which it interferes in the terms of an insurance agreement, is not permitted.  The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”   (Emphasis added)

18.    A similar approach had also been adopted by this Commission in “Liberty Videocon General Insurance Company Ltd. Vs. Shivbhajan Sahu and Another in 2018 SCC Online NCDRC 872” in an earlier Revision Petition No.1871 of 2016 decided on 20.03.2018.

19.  In view of the decision of the Apex Court in “Export Credit Corporation Limited (Supra)” there can be no doubt that the Forum which decides on an insurance claim cannot go beyond the specified terms and conditions specified within the words used in the policy or the relevant scheme, and cannot under the guise of a Social Welfare Interpretation extend the meaning of those words artificially.

20.    For the aforesaid reasons, this Commission finds merit in the contentions raised on behalf of the Petitioner/Insurance Company.  The Revision Petition is, therefore, allowed after setting aside the Impugned Order of the State Commission, and restoring the decision of the District Forum.

21.    Parties to bear their own costs.

22.    Pending application(s), if any, also stand disposed off.