Satish Chander Madan v. Bajaj Allianz General Insurance Co. Ltd.

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission Haryana in FA No. 305 of 2013 dated 16.072013, whereby the State Commission reversed the order of the State Commission and dismissed the complaint.

2. Briefly stated facts relevant for the disposal of the revision petition are that complainant purchased an Overseas Travel Insurance Policy from the respondent opposite party for sum insured US$ 2,00,000. As per the policy, against one ailment, the maximum insurance cover was 15000 US$ equivalent to Rs.7,50,000/-. The complainant reached London on 28.05.2010. Few days later, during the subsistence of the insurance policy, the complainant developed complaint of chest pain. He thus consulted the doctor and was admitted in Hospital at London on 03.06.2010 with problem of unstable angina. On the advice of doctor, the complainant underwent Coronary Bypass Graft Surgery at Wellington Hospital, London. He was discharged from the hospital on 14.06.2010. According to the complainant, he paid 12,005 pounds as expenses for surgery as also the consultation fee etc. The insurance claim for reimbursement of said amount was repudiated by the opposite party vide letter dated 06.07.2010 on the ground that claim was not payable because as per the medical record obtaining from the treating doctor / hospital, the complainant was having past medical history of hypercholestremia, Ischaemic Heart Disease as well as hypertension, which were excluded as per the insurance contract.

3. Being aggrieved of the repudiation of the insurance claim, the petitioner complainant raised a consumer dispute which was contested by the opposite party. The District Forum on consideration of the pleadings and evidence allowed the consumer complaint and directed the opposite party as under:

The respondent insurance company is directed to pay an amount of Rs.7,19,500/- to the complainant towards expenses of his treatment with interest @ 9% p.a. from the date of complaint i.e. 22.3.2012 till the date of payment and also to pay Rs.2200/- as litigation expenses.

4. Being aggrieved by the order of the District Forum, the respondent insurance company preferred an appeal. The State Commission on consideration of record and the submissions made on behalf of the parties came to the conclusion that respondent was justified in repudiating insurance claim because the complainant had obtained insurance policy by concealing the factum of his previous ailment, namely, hypertension, which has a nexus with the heart problem. Being aggrieved of the order of the State Commission, the petitioner complainant has filed the revision petition.

5. Learned counsel for the petitioner has contended that the impugned order of the State Commission has been passed on incorrect appreciation of fact. It is argued that State Commission failed to appreciate that insurance claim of the complainant was repudiated by the opposite party on the ground that claim in respect of the expenses incurred on the treatment of pre existing disease. It is contended that State Commission failed to appreciate that the opposite party had failed to lead evidence to show that the claim of the complainant was in respect of treatment taken for a pre existing disease. Instead, the State Commission on its own developed an argument that it is a case of concealment of material fact without making any reference to the information given by the complainant about his physical condition in the proposal form.

6. Learned counsel for the respondent on the contrary has argued in support of the impugned order. She has drawn our attention to the copies of treatment record of the complainant particularly medical report of Doctor David P Lipkin dated 04.06.2010 and letter dated 07.06.2010 wherein it is recorded that complainant is a known case to be hypertensive and is on medication. Learned counsel has argued that from said report it is clear that petitioner was hypertensive and was taking medication for the same at the time of purchase of insurance policy and since hypertensive can result into heart problem, the insurance company was justified in repudiating the claim on the basis of exclusion clause which excludes indemnification for the expenses incurred on pre existing disease.

7. We have considered the rival contentions and perused the record. On perusal of the impugned order, we find that the State Commission has allowed the appeal on the premise that the petitioner had obtained the insurance policy by mis representation and concealment of material fact regarding previous ailment. The aforesaid conclusion is based upon presumption. The State Commission has failed to consider that the concealment of material fact was not even a ground taken by the opposite party in the repudiation letter. Otherwise also, there is no evidence shown by learned counsel for the petitioner which would suggest that the petitioner despite of having knowledge of his heart ailment concealed this fact in the proposal form by giving a wrong information. Even the proposal form has not been filed or shown to us. Thus, in our view, the finding of the State Commission regarding supressing of material fact is based upon surmises and conjectures and it cannot be sustained.

8. Learned counsel for the respondent has contended that as per the terms and conditions of the insurance contract, the insurance company was not required to reimburse the petitioner complainant for expenses incurred by him on pre existing disease. Learned counsel has argued that from the medical report of the petitioner, it is clear that the petitioner was suffering from hypertension prior to the purchase of the insurance policy and since hypertension has a direct nexus with heart ailment, the respondent insurance company was justified in repudiating the insurance claim in view of the exclusion clause which excluded the expenses incurred on pre existing disease.

9. We do not find merit in the above contention. On perusal of the copy of the medical report of the petitioner dated 04.06.2010 issued by Dr. David P Lipkin as also the letter of the doctor dated 07.06.2010 addressed to Dr. M.Fertleman of Wellington Hospital would show that as per the observations of Dr. David P Lipkin, the petitioner had a previous history of hypertension and he was on BP medicine Telmisartan. The above referred reports do not mention that the petitioner disclosed any previous history of heart problem. Therefore, the only fact established by the above reports is that the petitioner prior to obtaining insurance policy was having history of hypertension. This, however, does not lead to conclusion that petitioner was also having previous history of heart problem. Therefore, the insurance claim submitted by the complainant for treatment of his heart problem cannot be termed as a claim in respect of a pre existing disease. Thus, repudiation of insurance claim by the respondent opposite party is not justified.

10. Learned counsel for the respondent has contended that it is established on record that the petitioner was having a previous history of hyper tension and since hypertension can lead to heart problem, the respondent was justified in repudiating the claim on the ground that the heart problem suffered by the petitioner was caused by pre existing hypertension. There is no merit in this contention. Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. Therefore, the argument advanced by respondent is far fetched and is liable to be rejected.

11. In view of the discussion above, it is clear that State Commission has committed a grave error in deviating from the real facts in allowing the appeal of the respondent resulting in dismissal of complaint on conjectures and surmises. The impugned order, therefore, cannot be sustained. We accordingly allow the revision petition, set aside the impugned order and restore the order of the District Forum. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER