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Max Bupa Health Insurance Co. Ltd. Mohan Co-operative Industrial Estate, New Delhi & Another v/s Reji Paul

    Appeal No. 364 of 2017

    Decided On, 29 January 2020

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: K.J. Saji Isaac, Advocate. For the Respondent: Biju Abraham, Nikhil K. Narayan, Advocates.

Judgment Text

The opposite parties in C.C.562/2014 of the Consumer Disputes Redressal Forum, Eranakulam (hereinafter referred to as the District Forum for short) have filed this appeal against the final order dated 21.03.2017 passed against them. As per the order appealed against, thecomplaint has been allowed. The respondent hereinis the complainant. The complaint was filed in the following circumstances.

The respondent had purchased three insurance policies from the 1st appellant. The first one was a Critical Illness Policy, the second one was a Health Companion Silver Policy and a third one, the Personal Accident Policy. The policies were taken on 20.07.2012 and 21.07.2012. On 01.08.2013, the respondent had gone for a routine check-up to the Lakeshore Hospital, Kochi. During the said check-up a renal mass was detected on his right kidney. He was therefore examined by Dr.George P. Abraham the specialist, at the same hospital. A CT scan was immediately conducted,followed by other tests. It was confirmed that the respondent was suffering from cancer. He was then advised by the Doctor to undergo a partial nephrectomy surgery at P.V.S Hospital, Kochi.

Accordingly, on 10.08.2013, a surgery was conducted. It was followed by biopsy tests which confirmed that the mass found in the kidney of the respondent was Renal Cell Carcinoma. The respondent was discharged from the hospital after the surgery on 17.08.2013. The total hospital bill came to Rs.2,29,579/-.

After his discharge, the respondent preferred a claim with appellant, as per the claim No.51437 under the Health Companion Silver Policy.That claim was not accepted by the appellant pointing out that the claim had to be made under the Critical Illness Policy. Therefore another claim,No.58258 was preferred under the Critical Illness policy. However, the said claim was rejected by the appellants. According to the appellants, theclaim would fall within the scope of condition No. 2.2.6 of the policy. According to the respondent, his claim would not come under the said condition for the reasonthat, it related to kidney failure. Though the correspondence followed, the appellant did not respondproperly. Ultimately, a registered notice was issued to the appellants on 05.03.2014 pointing out that the reason for rejecting the claim was false and untenable. Thereupon, the appellants took the stand that the disease of the respondent was not actually cancer but "carcinoma in situ", which has been excluded from the coverage of the policy. According to the appellant, the said phenomenon was only a localised one that would not come within the scope of the coverage. It was aggrieved by the rejection of the claim that the respondent had filed the complaint before the District Forum.

According to the respondent, he had paid a huge amount of Rs.30,000/- as the insurance premium of the policy taken by him. He had taken the policy only for the purpose of covering the risks specified in each of the policies. The act of rejecting his genuine claim amounted to a deficiency in service on the part of the appellants, for which he was entitled to be granted compensation. He claimed reimbursement of the amount of Rs.2,29,579/- paid by him for his treatment. In addition, he claimed compensation for the trouble and mental agony caused to him and costs of the proceedings.

The complaint was contested by the appellants. According to their version, the insurance policy is a contract that is governed by the terms and conditions thereof. The policy conditions are to be strictly construed. According to them, the critical illness cover of the policy was intended to apply to only "a malignant tumour characterized by an uncontrolled growth of malignant cells with invasion and destruction of normal tissues", as defined under clause 2.2.1of the policy. The carcinoma of the respondent was not invasive as is evident from the pathology report which states that the cancer had not spread to any other organs and sections of other areas of his kidney showed normal histology. Therefore, the mass detected was "carcinoma in situ "which is not actually a cancer, but a pre-cancerous stage. Therefore, the respondent was not suffering from a Critical Illness covered by the policy. Since there was no kidney failure, clause 2.6.6 was not applicable. Therefore, the appellants sought for dismissal of the complaint.

The parties went to trial on the above pleadings. The respondent examined himself as PW1 and the Doctor who treated him was examined as PW2. Exhibits A1 to A6 documents were marked on his side. The appellants produced and marked Exhibits B1 to B7 documents on their side, but adduced no oral evidence.

The District Forum considered the rival conditions in the light of evidence on record and found that there was deficiency in service on the part of the appellants. They have also been found to have indulged in unfair trade practice. Therefore, a direction to settle the claim of the respondent within a period of one month from the date of receipt of a copy of the order has been issued. An amount of Rs.2 lakhs has been granted as compensation besides an amount of Rs.10,000/- as costs. It is aggrieved by the said order that this appeal is filed.

According to the Counsel for the appellants, the District Forum has wrongly allowed the complaint of the respondent. The District Forum ought to have given full effect to the terms and conditions of the insurance policy that governs the rights of parties. It is pointed out that, the policy would apply only if the cancer had spread to other areas of the body, which has not happened in the present case. In the case of the respondent, the cancer has not affected even the kidney in full. The Counsel places reliance on the pathology report to contend that, only a portion of the kidney on which nephrectomy was done, was affected, indicating that the major portion of even the infected kidney was perfectly healthy. Therefore, it cannot be said that there was an uncontrolled growth and spread of the malignant cells. In view of the above, it is said that the claim of the respondent was rejected by the appellant on valid grounds.There was no deficiency in service on their part. Nor had they indulged in any unfair trade practice. Therefore, the Counsel seeks interference with the order of the District Forum. In support of his contention that the terms of an insurance policy are to be strictly given effect to, the Counsel places reliance on the decision of the apex Court in Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International [(2014) 1 SCC 686]. The learned Counsel on the above grounds, contended that this appeal may be allowed and the order of the District Forum be set aside.

The Counsel for the respondent on the other hand contended that, the disease of cancer itself is a critical illness, it is only the extreme good fortune of the respondent that it had not spread to other areas of his body. The respondent was fortunate that the disease was detected at an early stage. As part of treatment of the disease, a portion of the respondent’s kidney has been removed. The respondent has only claimed the expenses for his treatment, which the appellant had rejected raising, unsustainable objections. Therefore, the District Forum has rightly allowed the complaint and granted compensation.

Heard. We have considered the contentions raised before us anxiously. We have gone through the Lower Court Records and have perused the evidence, both oral and documentary that are available. It is not in dispute that, a valid insurance cover was available at the relevant point of time for the treatment of the respondent. It is not in dispute that, the disease from which the respondent was suffering was cancer, detected at a routine check-up undertaken by him. It was not a pre-existing condition. The only objection against admitting the claim is that, the ‘carcinoma’ that was detected on the respondent would not answer the definition of cancer contained in the clause 2.2.1 of the insurance policy. The clause 2.2.1 that defines cancer is extracted hereunder

“A malignant tumour characterized by the uncontrolled growth and spread of malignant cells with invasion and destruction of normal tissues. This diagnosis must be supported by histological evidence of malignancy and confirmed by a pathologist. The term cancer includes leukemia, lymphoma and sarcoma”.

Going by the above definition, a malignant tumour under clause 2.2.1 is characterized by an uncontrolled growth and spread of malignant cells with invasion and destruction of normal tissues, the “Carcinoma in situ" is excluded. In this connection, we note that, the Doctor who treated the respondent when examined as PW2 has stated that, “Carcinoma in situ” is the early stage in urinary bladder detected only in biopsy. He has deposed that the respondent was suffering from kidney cancer. Though he has been cross examined by the appellant’s Counsel, nothing has been brought out to discredit his testimony. PW2 being an expert and an independent professional who has no interest in the present dispute can be safely relied upon. This is especially so in a situation where, as in the present case, there is no evidence to the contra. As rightly pointed out by the respondent, cancer is a disease that is caused by an uncontrolled growth of cells. The only the difference in the present case is that, such uncontrolled growth was detected at an early stage, before it had spread to the other regions of the respondent’s kidney and other organs of his body. The fact that the disease was detected at an early stage cannot be the reason for rejection of the claim of the respondent. It was to cover the risks of similar nature that the policy was taken by the respondent, in the first place. The fact that, the mal

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ignancy had infected a portion of the kidney of the respondent to such an extent as to necessitate the removal of the infected portion as part of the treatment process, to save the respondent’s life is sufficient to prove that he was suffering from a critical illness. The “Carcinoma in situ”, even according to the literature on which reliance is placed by the appellants, is a term used to indicate the pre-malignant stage where it does not cause any threat to the life of the patient. The doctor’s certificate Exbt.A6 as well as the biopsy report confirm that the respondent was suffering from cancer. Therefore, there is no justification for the contentions of the appellants that the respondent was not suffering from a critical illness covered by the policy issued by them. The District Forum was therefore fully justified in allowing the complaint and granting compensation in the present case. We find no infirmity in the order appealed against, warranting an interference with the same. For the foregoing reasons, the appeal fails and is dismissed with costs quantified at Rs.15,000/-.