1.                 This appeal by complainant Sulakhan Singh Mangat who is husband of Ms. Gurdip Kaur insured, since deceased is directed against the order dated 5.2.2009, whereby his complaint case No.922 of 2008 was dismissed.  

2.                Parties hereinafter shall be referred to as per their ranking before the learned District Forum.                

3.                In nutshell, facts culminating to the commencement of this appeal may be recapitulated thus; 

                    Complainant had filed a complaint before the District Forum with the averments that his wife Mrs. Gurdip Kaur got herself insured for an amount of US$ 50,000/- from OP before going to Canada by paying a premium of Rs.21,743/- on 19.6.2007. The policy was valid from 25.6.2007 to 15.12.2007. It has been stated that during the validity period of Policy on 28.10.2007 on feeling uneasy breathing, she was taken to local family Physician at Placentia and then referred to Eastern Health St. John’s New Found Land Canada, where a few preliminary tests were conducted and she had to go under various tests and was diagnosed as Adeno Carcinoma of Lungs + Metastasis  and spent US$ 4620.77 on diagnose tests; plus US$6309.00 on transportation, oxygen cylinder, upgradation of executive class and two attendants. She was entitled for total amount of US$10929. Thereafter she was brought to India on 18.11.2007 for treatment, which was done in Fortis Mohali and ultimately, she expired on 22.2.2008 at Chandigarh. The Complainant made a claim to the OPs in respect of amount spent on tests in Canada and transportation to India and not with regard to the amount spent on treatment of Cancer at Fortis, but the OPs had repudiated the same vide letter dated 13.3.2008. Discontented with the repudiation of claim, a legal notice dated 17.4.2008 was served upon the OPs, but his claim was not processed. Hence, alleging deficiency in service on the part of the OP, complainant filed complaint before the District Forum. 

4                      The case of the OP No.1 before District   Forum was that the treatment taken by the Complainant’s wife was for Cancer, which was outside the ambit of the terms and conditions of the Policy. Further, the Complainant’s wife was a known case of hypertension, which was pre-existing and had not been disclosed at the time of taking the policy. Thus, the Complainant was not entitled for any amounts claimed as per the terms, conditions, exclusions and limitations of the Insurance Policy as per Sec.B; Scope of Cover (2). However,  despite service none appeared on behalf of OP No.2, hence it was proceeded against ex-parte.

5                 Learned District Forum after going through the evidence and hearing counsel for the parties  came to the conclusion that the case of the complainant fell under the exclusions clause (f) of the Policy (Annexure C-1). Thus the complainant was not entitled for any compensation and as such his complaint was dismissed as indicated in the opening part of this order. This is how feeling aggrieved by the impugned order of learned District Forum, the complainant has come up in this appeal.

6.                We have heard learned  counsel for the parties and also have gone through the record received from the District Forum concerned and grounds of appeal carefully.   

7.                Before proceeding further in the matter it is pertinent to mention here that both the learned counsel for the parties are relying upon clause (f) relating to the exclusion of policy (Annexure C-1), which is reproduced as under;

                   Exclusions :

The insurer shall not be liable for any claim under this cover that is caused by, attributable to, arises out of or is howsoever connected to any of the following :

                    a) to e)       xxx                        xxx                        xxx

                   f)       Cancer treatment, unless the medical attention is unforeseen, and is necessary to avert a clear and material danger to the insured’s life.

                   g) to m)        xxx                       xxx                       xxx

8.                We have minutely gone through the terms and conditions of the policy and Annexure C-1 and specially the exclusions clause and find force in the plea of the counsel for the complainant that he is not claiming any amount spent on the treatment of Cancer of the deceased but he is claiming the amount spent by him on the tests conducted in Canada and transportation of the insured to India, which he is legally entitled. He further submits that he is not claiming any compensation on account of the treatment of Cancer of the deceased. No doubt that complainant is not entitled to the treatment of Cancer as per the terms and conditions of the policy but at the same time it is very clear in the  aforesaid clause that his entitlement cannot be denied if the medical attention is unforeseen and is necessary to avert a clear and material danger to the insured’s life.  Herein in the instant case had it been a known case that his wife was  suffering from lung cancer it could have been treated to be a pre-existing disease and any treatment taken to cure or subside it, could have been termed as a treatment attributable to cancer.           It is a well known fact, of which we can take a judicial notice that the disease of cancer is seldom detected in advance and one comes to know it only when it has reached its final stage, which ultimately proves fatal. In the absence of any such thing either proved or alleged by the Opposite party against the complainant, the complaint could not have been rejected by the learned District Forum-I.

9.                In view of our foregoing discussion the treatment taken by the wife of the complainant in Canada cannot be said to be caused by, attributable to or arising out of or connected with the disease of cancer.  In fact, it is well established on the file that neither the complainant nor his wife had ever known about this disease of Cancer prior to the tests conducted in Canada and so the amount incurred on these tests cannot be attributed to have been spent on a disease of Cancer.  It is well proved from the details of receipts placed on file that in all complainant has spent a total amount of US$10,929.77  prior to the detection of Cancer disease including the expenses of upgrading  her ticket and return with medical equipment and two attendants for getting Cancer treatment in India. 

10.              In this view of the matter and our above discussion, we allow this appeal and consequently, the impugned order is set aside.  In the result, complaint filed by the complainant is allowed and he is held entitled to the claimed amount of US$10,929.77 as per prevailing rate of Indian currency on the date of deposit before the concerned District Forum or payment through demand draft to the complaint. It is further directed that the if the aforesaid amount is not paid within a month from the date of receipt of copy of this order, the complainant shall also be entitled for interest on the above said amount @9% per annum from the date of receipt of copy of this order and till actual realization.

11.              Before parting with this order, it is ordered that amount, if any, deposited by the complainant/appellant at the time of filing of this appeal be refunded to him against proper receipt and identification. 

12.              Copies of the order be sent to the parties free of charge.