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2010 DIGILAW 5039 (MAD)

New India Assurance Co. Ltd. v. D. Manoharan

2010-11-15

M.DURAISWAMY

body2010
JUDGMENT : Duraiswamy, J. 1 The above second appeal arises against the judgment and decree in A.S. No. 113 of 2006 on the file of Principal District Court. Chengalpattu modifying the judgment and decree in O.S. No 246 of 2001 on the file of Subordinate Court, Kancheepuram. The defendant in the suit is the appellant in the above second appeal and the respondent was the plaintiff. 2. The plaintiff filed the suit in O.S. No. 246 of 2001 on the file of Subordinate Court, Kancheepuram for recovery of a sum of Rs. 2,10,370 with damages of 12 per cent. 3. The brief case of the plaintiff in the suit is as follows: According to the plaintiff, he is a senior leading practising surgeon having founded the Manohar General Hospital at Kancheepuram. He took a mediclaim policy for the year 2000-01 which expired on 17.1.2001 and based on the renewal offer and notice sent by the defendant, the plaintiff renewed his mediclaim policy on 12.2.2001. The defendant branch issued the fresh policy in continuation of the previous policy. Unfortunately, the plaintiff had to undergo bypass surgery for the blockade of arteries and the same was performed at Malar Hospital by Dr. V.V. Bashi on 19.2.2001 and was discharged on 2.3.2001. He has incurred medical expenses of Rs. 2,10,370 and paid the same on 2.3.2001 to the hospital. He made a claim with the defendant. Since he did not receive any reply from them, he sent legal notice on 29.1.2001 (sic) and for which, the defendant sent a reply on 20.11.2001. Therefore, the plaintiff filed the suit. 4. The brief case of the defendant is as follows: According to the defendant, mediclaim policy for the year 2000-01 had expired on 17.1.2001 and based on the renewal offer and notice, the plaintiff renewed his policy on 12.2.2001. The defendant branch issued a fresh mediclaim policy for a sum of Rs. 1,00,000 to the plaintiff. The said policy dated 12.2.2001 is a fresh policy under the terms and conditions of the mediclaim policy and it is not a continuation of previous policy which expired on 17.1.2001. After a lapse of 25 days, the plaintiff paid the premium for the policy on 12.2.2001. The plaintiff was admitted in the hospital on 11.2.2001, i.e., a day prior to the commencement of the policy. After a lapse of 25 days, the plaintiff paid the premium for the policy on 12.2.2001. The plaintiff was admitted in the hospital on 11.2.2001, i.e., a day prior to the commencement of the policy. The plaintiff paid the premium through some third party on 12.2.2001, and on 15.3.2001, i.e., after discharge from the hospital, the plaintiff handed over his filled up proposal form for the mediclaim insurance policy. Thereby, the plaintiff has taken a fresh mediclaim policy for a sum of Rs. 1,00,000. Since no mediclaim policy was in force on the date of admission of the plaintiff, he is not entitled to claim any amount from the defendant. The plaintiff is not entitled to claim a sum of Rs. 2,10,370 from the defendant even assuming that the policy is in force, since he has taken the policy only for a sum of Rs. 1,00,000. In these circumstances, the defendant prayed for dismissal of the suit. 5. Before the trial court, on the side of plaintiff, the plaintiff was examined as PW 1 and 8 documents, Exhs. A1 to A8, were marked and on the side of the defendant, defendant No. 4 was examined as DW 1 and 6 documents, Exhs. B1 to B6, were marked. 6. The trial court, after taking into consideration the oral and documentary evidence of both sides, decreed the suit as prayed for. 7. Aggrieved over the judgment and decree of the trial court, the defendant preferred appeal in A.S. No. 113 of 2006 on the file of Principal District Court, Chengalpattu and the lower appellate court, after taking into consideration the materials available on record, modified the judgment and decree of the trial court by reducing the decree amount to Rs. 1,00,000. 8. Aggrieved over the judgments and decrees of the courts below, the defendant has filed the above second appeal. 9. Heard Mr. K.S. Narasimhan, learned counsel appearing for the appellant. 10. Though notice was served on the respondent-plaintiff, none appeared on behalf of the respondent-plaintiff. 11. 1,00,000. 8. Aggrieved over the judgments and decrees of the courts below, the defendant has filed the above second appeal. 9. Heard Mr. K.S. Narasimhan, learned counsel appearing for the appellant. 10. Though notice was served on the respondent-plaintiff, none appeared on behalf of the respondent-plaintiff. 11. The appellant has raised the following substantial questions of law in the above second appeal: (a) Whether the lower appellate court has failed to appreciate the term 'renewal' policy as it is commonly called, but no such presumption can be made under law since a contract of insurance is for a stipulated period and failed to appreciate the ruling of Karnataka High Court which means that the party to contract is not new customer? (b) Whether the lower appellate court has failed to note that the contract commences only from 12.2.2001 onwards and on 11.2.2001, there was no policy covering the risk and failed to appreciate the ruling of the Apex Court in Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, (1998) 1 SCC 365 (c) Whether the lower appellate court has failed to note that the terms and conditions of the policy have to be construed strictly and failed to appreciate the ruling of Apex Court Constitutional Bench reported in New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, (2002) 2 SCC 278 and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644 ? (d) Whether the lower appellate court has erred in discussing unwarranted factual position and observation of Delhi High Court, which are not applicable to the facts of this case, when there was no privity of contract on 11.2.2001 and when there is a break in the policy? 12. On a careful consideration of the materials available on record and the submissions made by learned counsel appearing for appellant, it could be seen that the only legal issue that arises in this second appeal is whether the respondent-plaintiff is entitled to claim the amount from the appellant-defendant, when there was no subsisting mediclaim policy. It is not in dispute that the mediclaim policy taken for the year 2000-01 under Exh. B2 expired on 17.1.2001. It is also not in dispute that the respondent-plaintiff got admitted in Malar Hospital, Chennai to undergo bypass surgery and he underwent bypass surgery on 19.2.2001. On 12.2.2001, the respondent-plaintiff renewed mediclaim policy under Exh. A8. It is not in dispute that the mediclaim policy taken for the year 2000-01 under Exh. B2 expired on 17.1.2001. It is also not in dispute that the respondent-plaintiff got admitted in Malar Hospital, Chennai to undergo bypass surgery and he underwent bypass surgery on 19.2.2001. On 12.2.2001, the respondent-plaintiff renewed mediclaim policy under Exh. A8. As per Exh. A1 medical bills, it could be seen that the respondent-plaintiff was admitted on 11.2.2001 and underwent surgery on 19.2.2001. Therefore, on the date of admission in hospital, respondent-plaintiff did not have mediclaim policy. 13. The learned counsel for the appellant relied upon the following judgments in support of his submissions: (i) M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, (1997) 1 SCC 66 . wherein the Supreme Court held as follows: But in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4 p.m. on 25.10.1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company. (ii) Smt. Asma Begum and others Vs. Nisar Ahmed and others, AIR 1990 Kar 353 , wherein a Division Bench of Karnataka High Court held that "renewal policy do not give the policy a retrospective effect; each policy is separate and independent and holds good only for the period mentioned in the policy". (iii) National Insurance Co. Ltd. Vs. Geetha and Others, (2004) 2 MLJ 296 , wherein a Division Bench of this court held that insurance company is not liable to pay compensation since the insurance policy was issued with specific mention of time and date of commencement of insurance and accident took place before the time mentioned in the policy. 14. In the present case, admittedly, the respondent-plaintiff took policy only on 12.2.2001. He was admitted in the hospital for undergoing bypass surgery on 11.2.2001 and he underwent surgery on 19.2.2001. Therefore, on the date of admission in the hospital, the respondent-plaintiff was not having the mediclaim policy. 15. So far as mediclaim policy is concerned, it is a fresh policy and each policy is separate and independent and valid only for the period mentioned in the policy. Since the respondent-plaintiff was not having valid mediclaim policy on the date of admission in the hospital, the appellant insurance company is not liable to reimburse the medical bills. 15. So far as mediclaim policy is concerned, it is a fresh policy and each policy is separate and independent and valid only for the period mentioned in the policy. Since the respondent-plaintiff was not having valid mediclaim policy on the date of admission in the hospital, the appellant insurance company is not liable to reimburse the medical bills. 16. The trial court decreed the suit for a sum of Rs. 2,10,370. Admittedly, the policy was taken only for a sum of Rs. 1,00,000. That being the case, the trial court erroneously decreed the suit as prayed for. 17. Lower appellate court modified the judgment and decree of the trial court by reducing the decree amount to Rs. 1,00,000. However, since there was no policy on the date of admission in the hospital, appellant-defendant is not liable to pay any amount to the respondent-plaintiff towards the medical expenses. The judgments relied upon by the learned counsel for the appellant squarely apply to the facts and circumstances of the present case. Therefore, the judgments and decrees of the courts below are liable to be set aside. In these circumstances, the relevant questions of law are decided in favour of the appellant. The judgment and decree of the courts below are set aside. The above second appeal is allowed. Consequently, connected miscellaneous petition is closed. However there shall be no order as to costs. After the judgment had been pronounced, the learned counsel for the appellant had represented that pursuant to the orders of this court in M.P. No. 1 of 2008, dated 5.2.2008, directing the appellant to deposit the entire decree amount, the appellant deposited the amount to the credit of the suit in O.S. No. 246 of 2001, on the file of the Subordinate Court, Kancheepuram. Since the judgments and decrees of the courts below are set aside, appellant may be permitted to withdraw the amount deposited pursuant to the orders passed by this court. Having regard to the submissions made by the learned counsel for the appellant, the appellant insurance company is permitted to withdraw the amount deposited by them before the trial court on production of a copy of this judgment.