IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7509 of 2008 SANTOSH KUMAR BANKA S/O SRI KAILASH PRASAD BANKA R/O 42, SARASWATI APPARTMENT, S.P.VERMA ROAD PS-GANDHI MAIDAN TOWN & DISTT-PATNA--PETITIONER Versus 1. THE NEW INDIA ASSURANCE CO.LTD AN INSURANCE COMPANY INCORPORATED UNDER THE GENERAL INSURANCE COMPANIES (NATIONALISATION) Act, 1972, HAVING ITS REGISTERED OFFICE AT 87, M.G.ROAD, FORT MUMBAI 400001 THROUGH ITS CHAIRMAN-CUM-MANAGING DIRDCTOR 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD. CITY BRANCH (540101), RAJGARIAH CENTRE, EXHIBITION ROAD, PATNA 3. THE DEVELOPMENT OFFICER, THE NEW INDIA ASSURANCE CO. LTD. CITY BRANCH (540101) RAJGARIAH CENTRE, EXHIBITION ROAD, PATNA 4. THE MEDICARE T.P.A. SERVICES (I) PVT. LTD. 6, BISHOP LEFROY ROAD, KOLKATA THROUGH ITS CHAIRMAN-CUM-MANAGING DIRECTOR-------------------------RESPONDENTS. ----------- For the Petitioner: Mr. Gautam Kejriwal, Advocate Mr. Akash Chaturvedi,Advocate For the Respondents:Mr. Sanjay Singh, Advocate Mr. Bimlesh Jha, Advocate ---------- 3 10.5.2010 Heard learned counsel for the parties. Petitioner haD taken a Mediclaim Policy being Medical Insurance Policy No. 540101/48/06/20/70000160. This was effective from 5.1.2007 to 4.1.2008. The terms and conditions of the policy are available in annexure-1 to the writ application. The background to filing of the present writ application is that during the pendency of the policy the petitioner felt certain discomfort in his chest on excess physical exertion. He decided to get himself checked up at Max Heart Hospital located at New Delhi. After investigation the doctors of Max Hospital came to an opinion that the reason for the discomfort of the petitioner was blockage of two arteries. Angiography revealed the same and the doctor treating him has indicated in his certification contained in annexure-4 that the petitioner had no past history of - 2 - Coronary Artery Disease (CAD). Learned counsel for the petitioner submits that Max Heart Hospital is an authorized chain of hospital, recognized of the Insurance Company and the persons covered by Mediclaim have right to avail cashless facility but the same was denied to him. Petitioner was asked to lodge his claim after the treatment which he did in terms of annexure-7 with all the corresponding bills in support of his claim. The matter was examined by the respondents and the claim was repudiated vide letter dated 2.11.2007 contained in annexure-8. This repudiation has brought the petitioner before the High Court in the present writ application. According to the respondents a reading of the reason would indicate that the claim of the petitioner fell foul of condition 4.1 of the policy. According to the opinion of the doctors obtained by the Insurance Company, the problem of the kind complained by the petitioner could not have developed over night. They are convinced that the patient was symptomatic prior to inception of the policy. They are also of the view that the petitioner ought to have knowledge about his problem which he developed prior to the policy taken by him and in a condition of this kind clause 4.1 will come into play. Clause 4.1 is quoted herein below for ready reference: 4.1: Pre-existing diseases/condition: All diseases/ injuries/conditions, which are pre-existing when the cover incepts for the first time (except as shown hereunder). Any complication arising from pre-existing disease/ailment/injury will be considered as a part of pre- existing condition. This exclusion will be deleted after four consecutive claim free policy years provided there was no - 3 - hospitalization for the pre-existing disease/ ailment/condition/injury during the said four years on insurance with our Company. Compulsory Coverage For Specific Pre- Existing Conditions: On payment of additional premium which is compulsory for persons suffering from the pre- existing conditions of Diabetes mellitus and Hypertension these specific pre-existing conditions only are covered in the following manner: 1st year No claim 2nd year No claim 3rd years 50% of admissible claim or 50% of the sum insured set for the individual whichever is less. 4th year 75% of admissible claim or 75% of the sum insured set for the individual whichever is less 5th year onwards 100% of admissible claim or sum insured set for the individual whichever is less. Learned counsel for the petitioner seriously contested this interpretation in view of clause 3.1 of the said policy. Clause 3.1 is quoted hereunder for read reference: 3.1: PRE-EXISTING CONDTION means any sickness/illness, which existed prior to the effective date of this insurance, whether or nor the insured person had any knowledge of symptoms related to the sickness/illness. Complications arising from a pre-existing condition will also be considered as a part of that pre-existing condition. According to him Clause 3.1 and 4.1 will have to be read in harmony and clause 4.1 cannot be used to demolish the claim of the petitioner when it was well within his knowledge on the assurance given that the insurance policy taken by him would take care of his claim arising from health problems as and when it may arise. - 4 - Petitioner categorically asserts that he was not put through any medical test or examination before the policy was issued by the Insurance Company. Insurance Company has no material to show that the petitioner had intentionally suppressed any vital facts including the fact that he was suffering from CAD and must have developed in the opinion of the panel of doctors of Insurance Company, prior to taking of the policy. According to the petitioner the opinion given by the doctors is only a guess work with a view to reject the claim of the petitioner. Learned counsel for the petitioner brings to the notice of this court a decision rendered in the case of Satwant Kaur Sandhu vrs. New India Assurance Company Limited reported in (2009) 8 SCC 316. He places emphasis on paragraph-18 of the said decision which is quoted hereunder for ready reference: Para 18: A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning the contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal from, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. (emphasis mine) His opinion of the materiality of that knowledge is of no moment (see Joel v. Law Union & Crown Insurance Co.) The stand of the respondent Insurance Company is that any person having taken the policy ought to have read the - 5 - terms and conditions included in the forms of policy and the Company has not done any wrong in repudiating the claim in view of the opinion of the so called panel of doctors that the problem of the petitioner for which he under went treatment must have pre- existed. He relies on a decision rendered in the case of Division Bench of Allahabad High Court which is the case of Shanta Bai vs Life Insurance Corporation of India & others reported in 2004 ACJ Vol. 4 1614. From a reading of the decision rendered by the Division Bench it is evident that there was element of suppression or fraud played by the person taking the policy. In the opinion of the Court petitioner had suppressed facts and given a kind of misstatement before taking a policy which goes to the root of the policy. There is no dispute with regard to the proposition that the insurance claim may be repudiated in such a circumstance. But in absence of any material or plea to show that the petitioner had prior knowledge and information and had deliberately suppressed facts while taking the policy and it was not mere coincidence Clause 4.1 will not come into play. It cannot be urged that the petitioner had intentionally suppressed certain information and material which will have a bearing on the insurance cover taken by him. The Court will have to test the claim of the petitioner vis-à-vis the stand of the respondents in the light of what had been observed by the Hon’ble Supreme Court in paragraph 18 - 6 - of Satwant Kaur Sandhu case (Supra). Petitioner has made out a case for interference. Annexure 8 and annexure-9A stand quashed. Direction is issued upon the respondent that they shall settle the claim of the petitioner preferably within a period of three months from the date of communication or production of a copy of this Court. This writ application is allowed with the above direction. RPS (Ajay Kumar Tripathi,J.)