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2010 Supreme(Cal) 84
High Court of Calcutta
Ashok Bhan & B.K. Taimni, JJ.
Bipul Chanda – Appellant
Versus
Royal Sundaram Alliance Insurance Company Ltd – Respondent
Revision Petition No. 3962 of 2006
Decided On: Feb 01, 2010
Advocate Appeared:
Prasanta Banerji, Debashish Nath.
A certificate issued by a doctor stating that gall bladder stones caused pancreatitis in 2001 does not prove that the insured had stones in gall bladder at the time of taking the Policy.
Headnote:
HEALTH INSURANCE - REPUDIATION OF CLAIM - PRE-EXISTING DISEASE - INSURANCE COMPANY RELIED ON CERTIFICATE ISSUED BY DOCTOR STATING THAT GALL BLADDER STONES CAUSED PANCREATITIS IN 2001 - HELD, CERTIFICATE ISSUED ON BASIS OF PROBABILITY AND DOES NOT PROVE THAT INSURED HAD STONES IN GALL BLADDER AT TIME OF TAKING POLICY - CLAIM ALLOWED.
Fact of the Case:
Petitioner's mother was admitted to hospital for treatment of gall bladder stone and petitioner submitted claim for reimbursement of medical expenditure with respondent-Insurance Company - Insurance Company repudiated the claim on the ground of pre-existing disease - Petitioner filed complaint before District Forum which was dismissed - Petitioner filed appeal before State Commission which was also dismissed - Petitioner filed Revision Petition before National Commission.
Finding of the Court:
Certificate issued by doctor stating that gall bladder stones caused pancreatitis in 2001 does not prove that insured had stones in gall bladder at the time of taking policy - Discharge summary issued by hospital also does not indicate that insured was having stones in gall bladder in 2001 - Insurance Company did not take the ground that complaint is liable to be rejected on the ground that petitioner had suppressed the material facts by not disclosing in the proposal form the fact of his mother suffering from pancreatitis - Complaint allowed.
Issues: Whether the insured had suppressed the fact of pre-existing disease at the time of taking the Policy?
Ratio Decidendi: The certificate issued by Dr. J. S. Rajkumar, relying upon which the District Forum as well as the State Commission have recorded the finding that the insured had suppressed the fact of preexisting disease at the time of taking of the Policy, was issued on the basis of probability and does not prove that the insured had stones in gall bladder at the time of taking the Insurance Policy.
Final Decision: Order passed by the District Forum as well as that of State Commission is set aside and the Complaint filed by the petitioner is allowed - Respondent-Insurance Company is directed to pay to the petitioner/complainant Rs. 34,094/-, i.e., the amount claimed in the Complaint along with interest @ 9% p.a. from the date of filing of the Complaint till its realisation - A sum of Rs. 15,000/- is awarded by way of compensation for mental agony and undue harassment caused to the petitioner and Rs. 10,000/- are awarded are costs.
1. BRIAN, President The present Revision Petition has been filed by Bipul Chanda petitioner herein who was the complainant before the Calcutta District Consumer Disputes Redressal Forum, Unit-I (hereinafter referred to as 'the District Forum' for short) against Order dated 10.08.2006 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as 'the State Commission' for short) whereby and whereunder the State Commission dismissed the appeal of the petitioner/complainant.
2. BRIEFLY stated, the facts leading to filing of this Revision Petition are as under: It is alleged in the complaint that the petitioner is a credit card holder of American Express Bank Limited and he received a proposal through the card division of the bank for purchasing Mediclaim Insurance Policy of the respondent-Insurance Company for himself and other members of his family by paying Rs. 16,955/- towards the premium. That on receipt of the premium, the respondent-Insurance Company issued a health shield certificate bearing No. HA0000617000101 for the period from 16.10.2002 to 15.10.2003. Policy was renewed for the period from 16.10.2003 to 15.10.2004 by paying a premium of Rs. 17,936/-. That the mother of the complainant, Smt. Rekha Chanda, was admitted to Wockhard Hospital and Kidney Institute, 111 -A, Rash Behari Avenue, Kolkata-700 029 for treatment of gall bladder stone which was detected by Dr. B. Ramana after thorough investigation and check up. Dr. Raman advised complainant's mother for operation and operated complainant's mother for gall bladder stone on 08.01.2003 on which an expenditure of Rs. 34,094/- was incurred. As per the Policy Norms, complainant submitted the claim form for reimbursement of medical expenditure with the respondent-Insurance Company on 25.11.2003 at their Kolkata Office along with all related documents. Respondent-Insurance Company, vide its letter dated 10.02.2004, repudiated the claim on the ground of pre-existing disease. Being aggrieved by the same, petitioner/ complainant filed the Complaint before the District Forum.
On being served, the respondent-Insurance Company filed its Written Statement denying all the allegations. It was stated that the petitioner did not produce the USG report in respect of the treatment of Pencreatitis in the year 2001 at time of taking the Insurance Policy.
3. THE District Forum, after taking into consideration, the pleadings and the evidence lead by both the parties, dismissed the Complaint.
4. AGGRIEVED by the Order passed by the District Forum, petitioner filed an Appeal before the State Commission. The State Commission dismissed the Appeal holding that no evidence was adduced by the petitioner/complainant before the District Forum to substantiate the allegation that the claim was repudiated on unjustified reasons. That the petitioner mainly depended on his argument and pleading. That the discharge certificate of the treating hospital also confirms that the disease 2 years old which proves a nexus between the ailment of pancreas in 2001 and gall bladder stone in 2003. That since no documentary evidence was adduced by the petitioner to prove the allegation made in the Complaint, the State Commission dismissed the same holding that the disease was pre-existing.
Aggrieved by the Order passed by the State Commission, petitioner/complainant has preferred this Revision Petition.
5. COUNSEL for the parties have been heard at length.
6. STATE Commission, in paragraph 4 of its Order, has recorded the following findings:-
"We have perused the memo of appeals, the impugned judgment passed by the learned Forum and the written objection filed by the Respondent. We have also examined the documents placed before us by both sides. We find that no evidence was adduced by the Appellant before the learned Forum to substantiate his allegation that the claim was repudiated without justified grounds. The appellant mainly depended on his argument and plead
