Date: 17.08.2017

ORDER                                                        

Sh. K.S.Mohi, President

1. The complainant has filed the present complaint  on 22.06.2015 against the OPs under section 12 of the Consumer Protection Act 1986. The facts as alleged in the complaint  are that the complainant has purchased a mediclaim policy from opposite party no. 2 for his family (i.e. his wife and dependent children) commenced from 29.10.2005 and continued by the complainant till date. On 14.04.2013 the wife of the complainant was admitted in the hospital with the complaint of “Fibroid Uterus” and went through Total Laparoscopic Hysterectomy with Adhesiolysis which was done on 15.04.2013 and was discharged on 17.04.2013. The complainant requested OP1 for cashless facility however the same was denied by OP1 vide its letter dated 16.04.2013. It has been further stated by the complainant  that  he  was undergoing financial crisis, however with much hardship he  paid a sum of Rs. 98,060/- on the treatment  of his wife. On 01.06.2013 complainant received a letter from OP1 wherein OP1 requested him  to submit the insurance policies issued before 2012. Accordingly complainant on 05.06.2013 submitted the entire set of policies starting from 2005 till 2013. On 30.06.2013 complainant was  shocked after  receiving  repudiation letter dated 24.06.2013 from OP2 despite completing  all the formalities as requested by the OP1.   Aggrieved by this  the complainant has , therefore, claimed mediclaim of Rs.98,060/- with interest @ 18% and compensation for mental agony  Rs. 1,50,000/-  and Rs. 55,000/- as litigation cost. However, the counsel for complainant deleted prayer clause no. (ii) pertaining to compensation of Rs. 1,50,000/- for harassment , mental agony and giving wrong treatment/  negligence of OP.
2. The OP filed reply taking preliminary objections inter-alia  that instant complaint is false, malafide and is nothing but an abuse of process of law.  It is submitted that claim of complainant for reimbursement of medical expenses was declined as per terms and conditions of the policy.  The operation undergone by complainant was not covered for the first two years from the inception of the policy. OP prayed for dismissal of the complaint.
3. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand, Sh. Gulshan Ahuja, Senior Divisional Manager,  has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the submissions of Ld. Counsel  for the parties.
5.  The controversy in the present complaint revolves around the issue as to whether  the repudiation of claim of complainant was justified or not?  The OP  vehemently suppressed that since there was a gap in the policy which resulted in discontinuity of the previous policies and thus had taken the disease suffered by the insured out of the purview of consideration having been hit  by clause 4.3 of terms and conditions of the policy. It needs to be clarified that the insurance company can take advantage of the terms and conditions of the policy particularly the exclusion clause provided the said terms and conditions were supplied to the insured either at the time of inception of the policy or anytime subsequent thereto. Practically, the insurance companies keeps the terms and conditions under wraps and have recourse to the same as and when any claim is filed against it with the sole intent to thwart the legitimate claim of poor insured. This is what has happened in the present case. The OP had not placed on record any cogent evidence as to when  and in what   manner  the terms and conditions were furnished to the insured.  The law in this aspect is now very clear. 
6. Hon’ble Supreme Court in case titled Oriental Insurance Co. Ltd V/s Sony Cherian II (1999) CPJ 13 (SC) has held that the insurance policy  between insurer and the insured represents a contract between the parties thereby insurer undertakes to compensate the loss suffered by the insured on account of risks covered by insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. It has been further held that the court should give due weightage to the terms and conditions by giving a plain meaning thereto.  In case reported in III (1996) CPJ 8 (SC) titled United India Insurance Co. Ltd. V/s MKJ  Corporation  whereby the Hon’ble  Supreme Court held that it is the duty of the insurer or its agents to disclose all material facts and that the insured is not bound by subsequent exclusionary clause unless such terms and conditions are quoted as part and parcel of the policy undertaken by the insured. In another case cited as (I) 2006 CPJ 115 (NC) titled  Oriental Insurance Co. Ltd. versus Asim J. Pandya  the Hon’ble National Commission held  that if terms and conditions are not supplied to the insured , the same shall not be acted upon by the insurance company.  The Hon’ble National Commission in another case reported in IV 2005 CPJ 190 (NC)  held that exclusion if not incorporated , not part of policy shall not be binding on the insured. It was further observed that if anything purported to convey what is not a part of contract (policy) alien to it , company cannot take advantage of such situation.
7. The crux of the judgments referred to above would lead us to only one conclusion that insurance company  cannot not take shelter under the umbrella of so called terms and conditions of policy if the said terms were not supplied to the insured at the time of inception of policy or any time subsequent thereto.   The Hon’ble Supreme court in the cases cited  above has categorically ruled out  contract of insurance being a contract of bona-fide both parties should be honest to each other. We have seen that in the present case exclusion clause 4.3 does not at all form part of the insurance policy rather it has been incorporated in a separate full-fledged document called “terms and conditions” being kept in seclusion by the OP insurance company.
8. Considering the facts of the present case and decisions of the Hon’ble Supreme court as well Hon’ble National Commission we find that the repudiation of the claim of the complainant is highly unjustified and unwarranted and amounted to deficiency in service on the part of the OP. Therefore , we award a sum of  Rs. 98,060/-  along with interest @ 9% p.a. from the date of filing the present complaint till realization and Rs. 5000/- as litigation cost.

Copy of this order be sent to the parties as per rules. File be consigned to record room.

                   Announced this ___________day of __________2017.