BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01/08/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition (MD) No.5254 of 2008
and M.P.(MD)No.1 of 2008
M. Manivasagam,
S/o. Maruthanayagam,
Old No.A-100/2, New No.45,
Kamala Lakshmi Illam,
Sundarar Street,
Alagappa Nagar, Madurai. ...... Petitioner
Vs
1. The Branch Manager,
National Insurance Company Ltd.,
Branch Office - 1,
6, West Masi Street,
Madurai - 625 001.
2. The Chief Executive Officer /
The Authorized Officer,
Medi Assist India Private Ltd.,
No.797, Annapoorna, 10th Main,
4th Block, Jaya Nagar,
Bangalore - 560 011. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the impugned order passed by the second respondent in his
proceeding dated 25.04.2008 and quash the same, consequently direct the
respondents to pay a sum of Rs.1,41,406/- as per the Medi Claim Policy.
!For Petitioner ... Mr. D. Saravanan
^For Respondents... Mr. S. Ramachandran
- - - - - - - -
:ORDER
The petitioner has approached this Court, with a prayer for issuance
of a Writ, in the nature of Certiorari, for quashing the order dated 25.04.2008,
vide which the medical claim of the petitioner under the Insurance Policy stands
repudiated by the respondent company.
2. The petitioner was insured under the Scheme of Medical Claim
Policy in the year 2001, and the policy was subsequently renewed regularly. The
policy was in force from 01.12.2008 to 30.01.2009.
3. The policy taken out by the petitioner was to cover unexpected
hospital expenses, sudden illness, injury, disease and other domiciliary
hospitalization.
4. It is the case of the petitioner, that the petitioner felt Chest
pain on 03.08.2007, and accordingly, approached his family Doctor, who advised
the petitioner to undergo a test of Coronary Angiogram. As per the result of the
Angiogram, the petitioner was advised to undergo a bye-pass surgery. The
petitioner was in the very serious state at that time.
5. The case of the petitioner, is that it was only after
hospitalization, that he had come to know that he had pre-existing disease
called “Diabetic Mellitus”. The petitioner, after undergoing surgery, filed the
claim with the Insurance Company.
6. As the petitioner was denied cash less hospitalization, the
petitioner filed W.P.No.8331 of 2007. On notice, the Insurance Company took a
stand, that the petitioner had approached this Court, without raising claim with
the Insurance Company. In the counter affidavit, the respondents had undertaken
to consider the claim of the petitioner when submitted. The petitioner, was
directed to submit his claim by supporting documents to the Insurance Company,
within a period of one week of the receipt of a copy of the order, with a
direction to be considered it in the terms of Medical Claim Policy taken out by
the petitioner.
7. The petitioner accordingly filed the claim, vide the impugned
order, the claim of the petitioner stands rejected.
8. The impugned order reads as under:-
“Dear Insured,
Subject: Liability Under Your Policy
We confirm receipt of your claim as per the reference given above.
We state our inability to admit liability due to the following:
Clause
Description
4.1
All diseases / injuries which are pre-existing when the cover incepts for the
first time. For the purpose of applying this condition, the date of inception of
the initial mediclaim policy taken from any of the Indian insurance Companies
shall be taken, provided the renewals have been continuous and without any
break.
The insurance policy was taken for the first time on 06.11.2011, in 2003
the policy was renewed on 01.12.2003 with a break, hence this policy is to be
considered as fresh policy and continuous policy coverage is taken from this
date only as per Insurance rule. The Diabetes Mellitus of over six years has a
definite bearing to this claim as hypertension and diabetes mellitus are
considered to have damaging effects especially on the blood vessels of the vital
organ like heart, Kidney and eyes. Diabetes Mellitus being pre-existing and a
major life-long ailment related to damage of the coronaries is a complication of
the pre-existing ailment as per the Insurance Policy clause 4.1. Therefore, we
express our inability to admit this liability under this claim as the claims
falls under clause 4.1 of the policy (pre-existing ailment with related
complicates) and the non-disclosure clause of the policy.
In case you have further facts or information to substantiate your claim,
please forward the same to us.”
9. The petitioner challenged the impugned order on the ground that
the stand taken by the Insurance Company, is contrary to the earlier stand taken
before this Court, as at that time, the eligibility was not disputed.
10. The contention of the learned counsel for the petitioner is,
that the stand of the respondents now is an attempt to deny the claim of the
petitioner under the Medical Claim Policy.
11. It is also the contention of the learned counsel for the
petitioner, that the reasons recorded, are wrong, as the petitioner did not
suppress any material from the Insurance Company, while taking out the Medical
Claim Policy.
12. The case of the petitioner, is that in Column 17, it was
categorically mentioned that petitioner suffers from “Diabetus Meletus”, which
at the time of renewal, was again reasserted.
13. Learned counsel for the petitioner placed reliance on the
Judgment of the Hon’ble Supreme Court in the case of LIFE INSURANCE CORPORATION
OF INDIA AND OTHERS ..VS.. ASHA GOEL (SMT) AND ANOTHER (2001 (2) S.C.C. 160) to
contend that the writ petition against the Insurance Company was competent.
14. It is also the contention of the learned counsel for the
petitioner, that suppression by policy holder must be fraudulent, and mere
inaccuracy or falsity cannot be a ground to deny the benefit under the policy.
It is thus contended that the impugned order cannot be sustained.
15. The learned counsel for the petitioner placed reliance on the
Judgment of the Hon’ble Supreme Court in BIMAN KRISHNA BOSE ..VS.. UNITED INDIA
INSURANCE CO., LTD., AND ANOTHER (2001 (6) S.C.C. 477) wherein the action of the
Insurance Company, refusing to renew the policy was held to be bad in law.
16. It is the contention of the learned counsel for the petitioner,
that the Insurance Company is State, within the meaning of Article 12 of the
Constitution of India, thus amenable to Writ jurisdiction.
17. This writ petition is opposed by the learned counsel for the
respondents, by contending that disputed question of facts have been raised
regarding the suppression of material facts while taking out the policy.
18. It is also the contention of the learned counsel for the
respondents, that contrary stand has been taken by the petitioner, as one side
it is stated that the petitioner came to know about the factum of suffering from
“Diabetic Mellitus” only after hospitalization, whereas now the stand is that
the factum was not suppressed.
19. On consideration, I find that the writ petition is not competent
before this Court. It cannot be disputed that the Insurance Company is “STATE”
within the meaning of Article 12 of the Constitution of India, therefore,
amenable to writ jurisdiction, but at the same time, the disputed question of
facts cannot be gone into in the writ petition, as the remedy with the
petitioner is to take out appropriate proceedings before the Consumer Court,
regarding the deficiency in service or appropriate Civil remedy, in accordance
with law, where disputed question of facts can be gone into.
20. This Court, in exercise of writ jurisdiction cannot adjudicate
the disputed question of facts.
21. Consequently, this writ petition is dismissed as not
maintainable. The liberty is granted to the petitioner to avail his alternative
legal remedy, in accordance with law.
22. The petitioner has been prosecuting his remedy before this Court
bonafide since 2008. In case, the petitioner chooses to avail alternative
remedy, he shall be entitled to the benefit of Section 14 of the Limitation Act,
in those proceedings.
No costs. Consequently, the connected M.P.(MD)No.1 of 2008 is
closed.
Dpn/-