ORIENTAL INSURANCE CO LTD Vs. BRAJENDRA SWAROOP AGARWAL

JUDGEMENT

(1.) Mr. Justice Sunil Kumar Garg, President-This appeal has been filed by the appellant against order dated 3.5.2003 passed by the District Forum, Kota by which the complaint of the respondent was allowed in the manner that the appellant Insurance Company was directed to pay Rs.2 lakh as amount of expenses incurred by the respondent in respect of medi-claim policy within 90 days failing which the appellant would pay interest @ 12% p. a. and further to pay Rs.1,000 as amount of costs.

(2.) The necessary facts giving rise to this appeal are as follows : that on 13.4.2000 the respondent complainant had filed a complaint before the District Forum, Kota inter alia stating that he had taken an Insurance Policy No.243024/48/99/0007 for the period of 12 months w. e. f.8.2.1999 to 7.2.2000 covering medi claim insurance for himself and his wife Smt. Meeta Agarwal for the sum of Rs.2,50,000 for the expenses of hospitalization and Rs.40,000 for domestic hospitalization. It was further stated in the complaint that in the second week of March 1999, the respondent had to go to Bombay where he felt swelling on his cheek on 10.3.1999 and thereafter he took consultation from Dr. Sanjay Gangawal and Dr. Gangwal asked him whether he was taking tobaco or not on which he had stated that he was taking tobaco and the doctor advised him to undergo for Biopsy as he was having some suspicion. The Deptt. of Pathology of Bombay Hospital and Medical Research Centre had given a report on 10.3.1999 about the biopsy of the respondent in the following manner : "serial section shows an invasive squamous cell carcinoma. The keratinized tumor cells are arranged in nests and irregular cords. The cells possess large, mitotically active, pleomorphic nuclei. " Squamous cell Carcinoma (grade III) of left buccal mucosa. " thus the cancer was detected. The further case of the respondent was that thereafter he was admitted as an indoor patient in Bombay Hospital on 18.3.1999 and operation was conducted on 23.3.1999 and on 24.3.1999 the following diagnosis was assessed: "microscopic AND DIAGNOSIS: squamous Cell Carcinoma (grade III) left buccal mucosa. : invasive cords, nests and sheets of neoplastic squamous cells : moderate nuclear anaplasia, brisk mitotic activity : tumor invading underlying muscle, fit and reaching skin : cutaneous and mucosal margins free. " Thereafter he was discharged on 31.3.1999 but he had taken the treatment and he was finally discharged on 15.4.1999. The further case of the respondent was that in getting treatment at Bombay he had to incurred Rs.2,73,625 in his treatment and for that he had preferred the claim before the Insurance Company, but that claim was repudiated by the Insurance Company through letter dated 28.2.2000 inter alia holding that since the disease of cancer was diagnosed within 30 days from issuance of the policy and since the cancer was of third degree, therefore, the respondent was a patient of cancer prior to issuance of the policy and thus as per terms of the policy in such a case payment was not payable to the respondent. Thereafter the claim was preferred by the respondent before the District Forum. A reply was filed by the appellant Insurance Company on 28.11.2000 and they have taken the same plea which they had taken in the repudiation letter dated 28.2.2000 and further since the disease cancer of the respondent was at the final stage and, therefore, to say that respondent was not having knowledge of the disease of cancer was wrong one on the part of the respondent and he had suppressed that fact at the time of issuance of the policy and further as per terms and condition of exclusion Clause 4.2 of the policy the expenses of hospitalisation would not be payable and thus claim was rightly repudiated. Hence complaint be dismissed. The District Forum after hearing both the parties allowed the complaint of the complainant respondent through impugned order dated 3.5.2003 in the manner that from the record the fact that the respondent had the knowledge that he was having cancer in his mouth before issuance of the policy had not been found established and, therefore, it was not a case of concealment. Aggrieved from that order this appeal has been filed by the appellant Insurance Company.

(3.) In this appeal the main contention of the learned Counsel for the appellant is that before issuance of the policy i. e. , on 8.2.1999 and since the cancer detected later on of third degree, the respondent was having the knowledge that he was a patient of cancer and that fact was suppressed by him at the time of effecting of the policy. In such a case the appellant company had legal right to repudiate the claim of the respondent complainant on the ground of suppression of material facts and further on the ground of exclusion Clause 4.2 of the insurance policy and thus illegality has been committed by the District Forum in decreeing the claim of the respondent and impugned order be set aside.