Judgment:
J.D. Kapoor, President:
1. This appeal arises out of Mediclaim Policy obtained by the respondent from the appellant for himself and for his wife for a period of one year commencing from 7.2.1996. Claim of Rs. 2,00,000/- spent by the respondent on her treatment of operation for âCoronary artery bypass grafting was repudiated by the appellant on the ground of respondent having concealed the fact that the disease was pre-existing at the time of taking the policy. Feeling aggrieved the respondent approached the District Forum by way of filing the complaint under Section 12 read with Section 17 of the Consumer Protection Act, 1986. Vide impugned order dated 7.7.2000 the complaint was allowed and the appellant was directed to pay Rs. 1,00,000/- as per terms of the policy with interest @ 9%.
2. Through this appeal the appellant has assailed the impugned order mainly on the ground that the respondent had concealed the factum of history of in-patient and out-patient during the years 1994 and 1996 for the following disease:
(i) -C/O inferior wall myocardial infarction in 1980
(ii) -Non-Q Arterior Mycardial infarction in 1981 (D.C. shock) following which he remained Asymptomatic and now had one episode of Angina about 1 month back.
3. There is no dispute with regard to the following primary facts:
(1) At the time of taking the said policy the respondent mentioned in Column 13(h) of the proposal form that he had been operated upon for cataract for both eyes and lenses had been fitted in his eyes.
(2) That he had been operated for tonsil and appendicitis about forty years ago besides going for angiography in 1994 at Escorts Hospital.
(3) That she remained admitted in the Escorts Heart Institute and Research Centre from 6.12.1996 to 20.12.1996 and was treated and operated for Coronary Artery Bypass Grafting by Dr. Naresh Trehan and Dr. R.R. Kasliwal and incurred an expense of Rs. 2,00,000/- for the said treatment.
(4) As per insurance policy the reimbursable amount was Rs. 1,00,000/- only as the policy itself was for the said amount.
(5) That on receiving the claim the appellant deputed Dr. A. Batra to check the record from the Escorts Heart Institute. As per his report dated 4.8.1997 the respondent had two myocardial infarctions in 1980-81 and this fact has not been disclosed by the respondent in his proposal form. Report of Dr. A.K. Batra is reproduced as under:
âOn 4.8.1997 I revisited the hospital, after prior appointment with Dr. Satyendra Singh, when the in-patient records and the out-patient records of Mr. K.A. Aggarwal for the years 1994 and 1996 were shown to me. The same were studied and the history, as recorded in 1994 records, was noted word by word and it read as under:
Mr. K.A. AggarwalâEHIRC No. 94/50208.
Cardiac Clinic Record - 29.11.1994-Diabetic. Hypertensive.
Ex-smoker-10 years; Negative family story of Ischaemic Heart Disease.
C/o-inferior Wall Myocardial Infarction in 1980
-Non-Q Anterior Myocardial Infarction in 1981 (D.C. shock) following which he remained asymptomatic and now had one episode of Angina about 1 month back.
3.12.1994-TMT done on 30.11.1994-moderately+ve
-Echo was also done on 30.11.1994.
Final diagnose-Old Myocardial Infarction, Angina on Exertion Mild left ventricular Dip function : Hypertentia and diabetes Mellitusâ
It has further been observed by Dr. Batra in his report that:
From the above information it is apparent that Mr. K.A. Aggarwal is a known patient to diabetes since 1971 hypertensive for an unspecific duration, coronary artery disease with history of Myocardial infarction in 1980-81 and unstable Angina since October, 1994 and had undergone coronary angiography on 14.12.1994 at Escorts Heart Institute confirming 100% blockages of the left interior descending coronary artery and right coronary artery. He had taken mediclaim policy from the Oriental Insurance Co. Ltd. from 11.2.1991 to 10.2.1996 without break and had renewed the policy from your office on 7.2.1996 when he had not declared about his having two myocardial infarctions in 1980-81. The chest pain was replied as âNoâ. He had not declared about having Angina on exertion in 1994. He had stated in Col. 14 of the proposal form that he was cured of angiography to the contrary he had 100% block in left anterior descending and right coronary arteries.â
(6) That on the aforesaid report of Dr. A.K. Gupta the claim of the respondent was rejected vide letter dated 28.11.1997 on the ground that the disease for which she was operated upon and treated was pre-existing and, therefore, the respondent was not entitled to the claim by virtue of Exclusion Clause of 4.1 of the insurance policy which is as under:
Exclusions:
40. The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:
â4.1 All diseases Injuries which are pre-existing when the cover incepts for the first time.â
4. Counsel for the appellant has under the shelter of above exclusion clause vehemently contended that on the premise of the aforesaid facts the District Forum erred in concluding the appellant has miserably failed to prove that the respondent had suffered from any heart disease in 1980-81 and also failed to prove by any reliable evidence that the said disease existed in 1988 and it has also failed to prove the allegation that the respondent had concealed the material facts fraudulently and submitted false information in the proposal form.
5. Counsel for the appellant has heavily relied upon the affidavit filed by Dr. A.K. Batra wherein Dr. Batra has given the report on the basis of the record of the Escorts Hospital wherein the history was recorded on the representation of the patient and his relatives before taking treatment. Further, if the respondent could have disclosed about his having been operated upon for tonsils 40 years ago there was no reason for not disclosing about having been treated for Angina and other like diseases in the year 1980-81 and non-disclosure of this fact reflects the mala fide of the respondent in obtaining the policy fraudulently knowing it well that he had already been operated upon for the same disease in the year 1980-81.
6. Discharge summary prepared by the Escorts Heart Institute and Research Centre where the respondent had been treated has been heavily relied upon by the respondent and, therefore, needs to be reproduced for proper appreciation of the proposition in question.
âResume of History
Mr. Aggarwal is a 63 years old pleasant gentleman, who is hypertensive, diabetic, ex-smoker and has positive family history of ischaemic heart disease. He sustained accute M in 1980 and then reinfarction 7-8 months later. Subsequently he was well on medical therapy. He started having angina on exertion class II one month back. TMT done was positive for RMI. Echo showed no RWMA, EF 50% with diastolic dysfunction. He has past history of haemetemesis. He was admitted to this hospital for CART.
On examination, his pulse was 80/min. and BP was 140/90 mmHg. There was no pallor, cyanosis, clubbing, jaundice, or edema. JVP was not raised and lungs were clear. Precordial and rest of the systemic examination was unremarkable.â
7. So far as the interpretation of Clause 4 is concerned, there is unvarying unanimity of opinion and we have also taken the view in large number of cases that unless and until the disease which is not existing at the time of taking the policy it cannot be termed as pre-existing disease. The purpose and object of incorporating exclusion Clause 4 in the policy is to avoid false claims by the insured by cancealing information about the disease he was suffering from at the time of taking the mediclaim policy.
8. Even if we accept the contention of the Counsel that the respondent was operated upon for tonsil and angina though the record shows that he had only suffered from the aforesaid disease way back in the year 1980-81 and was treated, therefor.
9. After having closely perused and scrutinised the report of Dr. Batra as well as the above report of discharge slip or history we find that the respondent sustained acute MI in the year 1980 and reinfarction 7-8 months later and became well on medical therapy.
As we have observed as to the import and significance of the word âpre-existing disease we find that a person who does not suffer the same disease which he suffered and was treated for more than 15 years back is neither supposed nor expected to disclose that he was still suffering from the said disease in the year 1994 when he took the mediclaim policy. Thus there was no concealment on the part of the respondent about the disease suffered from at the time of taking the policy.
10. As a matter of fact it was for the appellant to get a general medical check up of such persons who are old and take mediclaim policy as the insured is supposed to only disclose the factum about the disease which was immediately existing and not that existed 5 years back or 10 years back and for which he was given treatment and thereafter remained well and free from any complications for 15 long years.
11. If the concept of pre-existing disease is stretched to such an extent then the very purpose of a person getting treatment for the same and keeping well and remaining well for years together would loose its significance and purpose so far as taking of mediclaim policy is concerned and even the disease for which he was treated 40 years before would come within the ambit of âpre-existing disease. Word âexisting means the disease which exists at the time of taking the policy.
12. Though it was not a case of concealment of pre-existing disease but the contributory negligence by the appellant cannot be ruled out as the appellant before giving mediclaim policy was to ensure whether the person in whose favour the policy was being given was entitled to the same or not. In the given circumstances that the respondent had a treatment of the same disease about 20 years back and as per understanding of a reasonable person, disease for which he was treated 20 years before, non-disclosure of this fact is not a concealment much less a fraudulent one.
13. Foregoing reasons persuade us to dismiss the appeal being completely devoid or merit.
14. Appeal is dismissed.
15. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
16. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to record room. A copy of this order be also placed in the other file also.
Appeal dismissed.