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2010(2) CPR 355
DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.D. Kapoor, President and Ms. Rumnita Mittal, Member
The Oriental Insurance Company Ltd. —Appellant
versus
Mr. Vidya Sagar Vohra & Ors. —Respondents
Appeal No. FA-08/98
Decided on 13.3.2008
IMPORTANT POINT
Unless and until a person is hospitalized for treatment of any disease or undergone any operation in the near proximity of taking the policy, say a year or two before, he cannot be accused of concealing the factum of any disease, which can be termed as pre-existing disease.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Insurance claim under mediclaim policy—Policy was taken on 2-12-2003—Respondent-insured was injured due to fall on road on 7-4-09 and his kneecaphad to be replaced—Claim repudiated on ground of concealment of pre-existing ailment of Osteo-arthritis—Distt. Forum allowed claim—Appeal—plea that necessity for replacement of kneecap could not arise suddenly in six months unless disease of Osteo-Arthritis was pre-existing a long time—Doctor examined by complainant stated that Osteo-arthritis could be aggravated due to any injury, stress, trauma and could lie in document state of several years—Contract of insurance were for benefit of insured and any other approach which was not in consonance with beneficial inter pre-tation was bad in law—Expression “Pre-existing disease” meaning and interpretation—Order impugned called for no interference. (Paras 5 to 11 and 15 to 17)
J.D. Kapoor, President—On account of having suffered injury due to fall necessitating replacement of the knee, the District Forum has vide Order dated 08-11-2007, directed the appellant-company to pay a sum of Rs.1,71,960/- as insurance amount and also Rs. 40,000/- as compensation for the mental agony and Rs.10,000/- as cost of litigation to the respondent. Feeling aggrieved the appellant has preferred this appeal.
2. The short question arising for determination in this appeal is, “Whether the respondent was guilty of concealment of factum of existence of a disease known as Osteo-arthritis, at the time of obtaining the insurance policy, which got aggravated due to a fall on the road and as such disentitled himself for reimbursement of the medical expenses incurred in the treatment?”
3. The case of the respondent in brief is that he obtained a mediclaim policy vide cover note dated 02-12-2003 the appellant company. The respondent was injured due to a fall on the road on 07-04-2004 and was admitted to Sir Ganga Ram Hospital on 09-04-2004 and the appellant company reimbursed a sum of Rs. 17,328/- as expenses incurred in the said hospital. Since the pain persisted in the knee, the respondent went to Indraprastha Apollo Hospital who advised surgery and this fact was brought to the notice of the appellant company even before the surgery. The complainant submitted a claim of Rs. 1,71,957/- alongwith full details and bills. However, the appellant company repudiated the claim. Feeling aggrieved the complainant filed the instant complaint before the District Forum.
4. While justifying the rejection of the, claim, the appellant took the plea that the ailment for which replacement of kneecap done at the Apollo Hospital could not have been caused by- an accident as the necessity for replacement of kneecap cannot arise suddenly or in six months period unless the disease of Osteo-arthritis pre-existed for a long time. In support of this plea, the appellant also placed reliance on the opinion of their own panel doctors which is as under:-
“Under the Instructions of TPA, I visited Apollo hospital on 08-07 -2005 at 10-00AM after obtaining the letter from the office and also consent from insured and examined case sheet. I also obtained photocopy and same is enclosed. I observe that:
The said claim under mediclaim wherein Mr. Vidya Sagar Vohara had preferred a claim for treatment of self for c/o pain Rt. Knee after Injury in April, 2004. He was earlier admitted at Ganga Ram Hospital and after investigation was managed for ligament tear. MRI showed at that time Osteoarthritis. Presently he was admitted for Total Knee Replacement. He was managed surgically. TKR done and was discharged with advice of follow up.
I observe that:
The insured had been having osteoarthritis both knees which cannot develop in 7 months as it is a degenerative disease. MRI report also confirms same as degenerative disease. CRP is also high which is a marker of chronic Inflammation. As a result of the same there was reduction of joint spaces, osteophyte formation and cartilage destruction and associated soft issue oedema. All these changes had resulted in his sustaining injury in April, 04 for which he was managed conservatively. I feel that the Injury after falling in April is because of his pre-existing Osteoarthritis resulting in restriction of mobility and locking leading to fall. Even at Apollo hospital the diagnosis is Bilateral, Osteoarthritis admitted for total knee replacement. There is no mention of any damage done to knee Due to fall requiring knee replacement.
Previous Detalls/ Follow Up Report:
The policy is mediclaim and insured is covered.
The claim of Mr. Vidya Sagar Vohra is not admissible under terms of the policy as the disease is a chronic degenerative disease and pre-existing at the inception of policy. TKR has not been done because of his injury sustained after fall in April, 2004.
Amount Payable: ZERO
Sd/-
Dr. Arun Agarwal”
“Sub: Record veri
