JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 17.9.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only ),vide which it accepted the complaint of the complainant (now respondent) and directed the OPs(now appellants) to pay a sum of Rs.41,121/- to him for the expenses incurred by him, for necessary hospitalization and follow up treatment of his wife. The District Forum also directed the OPs to pay a compensation of Rs.25,000/- for causing harassment and mental agony to the complainant. It was further directed that the OPs shall pay Rs.7000/- as litigation expenses. 2. The complainant, and his wife Mrs. Saira, took Hospitalization benefit policy/Mediclaim Policy (2007) bearing No.353000/ 34/07/11/0000184- from OP No.2, which was valid for the period from 12.11.2007 to 11.11.2008. A sum of Rs.13572/- as premium was paid by the complainant. The Policy was got renewed from OP-1, for the period from 10.11.2008 to 11.11.2009, by paying Rs.13212/- for such renewal. The wife of the Complainant, namely Smt. Saira, fell sick and she was got admitted in Dogra Nursing Home and Endoscopy Centre, # 8, Sector 19-A, Chandigarh, on 15.11.2008. She remained admitted there from 15.11.2008 to 18.11.2008. The Complainant paid the bill to the tune of Rs.28700/- vide receipt No.362, dated 18.11.2008. It was further stated that the treatment, provided to the wife of the complainant, was essential, in order to avoid any further complication. The Complainant filed his claim with the OPs, but the same was rejected by them. A legal notice was sent by the complainant, to the OPs, but they did not, redress his grievance. Left with no other alternative, a complaint under the Consumer Protection Act,1986(hereinafter to be referred as the Act only), was filed, claiming Rs.41121/-, as expenses, incurred by the complainant, for the survival of his wife ; Rs.75000/- on account of deficiency in service and Rs.21000/- as litigation expenses. 3. The OPs appeared and filed reply wherein it was pleaded that the complaint was not maintainable. It was stated that the wife of the Complainant filled up the claim form, and as per the instructions of IRDA, the mediclaim policies are to be settled by the Third Party Administrator (TPA). In this policy, the TPA appointed was M/s Raksha TPA Pvt. Ltd. The documents provided by the Complainant regarding the treatment of his wife, were sent to M/s Raksha TPA Pvt. Ltd., by the OPs, which rejected the claim of the complainant, as the same did not fall within the purview of the terms and conditions of the aforesaid policy. It was further stated that there was no deficiency in rendering service, by the OPs. 4. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum accepted the complaint, in the manner, referred to, in the opening para of the judgment. 5. Feeling aggrieved, the instant appeal, was filed by the Opposite parties/Appellants. 6. We have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 7. The Counsel for the appellants, submitted that, no doubt, the aforesaid policy was taken by the complainant, and his wife. He further submitted that alongwith the cover note of the policy, the terms and conditions of the same were also attached. He further submitted that since Hysterectomy Operation of the wife of the complainant was conducted within two years of obtaining the policy i.e. 15.11.2008, as per clause 4.3 of the terms and conditions of the said Policy, the complainant was not entitled to, the claim filed by him. He further submitted that the claim was, thus, rightly repudiated by the appellants, in pursuance of the terms and conditions contained in the Mediclaim Policy. He further submitted that the District Forum was, thus, wrong in coming to the conclusion, that there was deficiency, in rendering service, on the part of the OPs. He further submitted that the order of the District Forum, being illegal and perverse, is liable to be set aside. 8. On the other hand, the Counsel for Complainant/Respondent submitted that alongwith the Insurance Cover Annexures C-1 & C-2, terms and conditions of the mediclaim policy were not supplied to the complainant or his wife. He further submitted that even orally, the concerned agent, did not disclose the terms and conditions of the policy, either to the complainant, or his wife. He further submitted that, under these circumstances, even if, hysterectomy operation was conducted within a period of two years, from the date of the policy, the complainant was entitled to the hospitalization charges, as also to other sums claimed by him, by way of compensation and litigation expenses. He further submitted that the repudiation of the claim, by the OPs, was completely and wholly illegal. He further submitted that the order passed by the District Forum, being based, on due appreciation of the facts, evidence and law on the point, deserves to be upheld. 9. After giving thoughtful consideration to the rival contentions advanced by the Counsel for the parties, in our consideration opinion, the appeal, deserves to be accepted, for the reasons to be recorded hereinafter. There is no dispute between the parties that the Mediclaim Policy, aforesaid, Annexure C-1 was taken by the complainant and his wife. The first policy, which was obtained, was for the period from 12.11.2007 to 11.11.2008, and it was got renewed again, from 11.11.2008 to 11.11.2009. The question arises, as to whether, the terms and conditions of the mediclaim policy, which was originally obtained and again got renewed after one year, were supplied to the complainant or not. There is not even a whisper, in the complaint, filed by the complainant, that alongwith the cover notes, the terms and conditions of the mediclaim policy were not supplied to him and his wife. Had the terms and conditions of the mediclaim policy been not supplied to the complainant, or his wife, he would have immediately written a letter to the OPs for supply of the same. There is no document, on the record, that the complainant, or his wife, wrote letter(s) to the OPs, that since the terms and conditions of the policy had not been supplied, the same be supplied to them. On the other hand, it is evident from the Annexures C-1 & C-2, the cover notes that the policies were subject to ‘ Mediclaim Policy (2007) clause attached herewith’. These cover notes clearly go to show that the terms and conditions, of the Policy, were attached with the cover notes. The initial onus, which lay on the OPs that the terms and conditions of the policy were supplied to the complainant was discharged by them. The complainant , as stated above, neither took a plea in the complaint that he was not supplied the terms and conditions of the policy nor did he state anything, in this regard in his statement by way of affidavit. The complainant concocted, a plea to the effect, that since, he was not supplied the terms and conditions of the Policy, as such, he was not bound by the same. Since, it is established that the terms and conditions of the Policy, were supplied to the complainant, the parties were bound by the same, and could not wriggle out of the same. Clause 4.3 of Mediclaim Policy 2007, copy of whereof is Annexure R-1, reads as under ; “4.3 Waiting period for specified diseases/ailments/conditions; From the time of inception of the cover, the policy will not cover the following diseases/ailments/conditions for the duration shown below. This exclusion will be deleted after the duration shown, provided the policy has been continuously renewed with our Company without any break. Sr.No | Name of Disease/Ailment/Surgery not covered for | Duration | 1 | Any Skin disorder | Two years | 2 | All internal 7 external benign tumors, cysts, polyps of any kind, including benign breast lumps | Two years | 3 | Benign Ear, Nose, Throat disorders | Two years | 4 | Benign Prostate Hypertrophy | Two years | 5 | Cataract & age related eye ailments | Two years | 6 | Diabetes mellitus | Two years | 7 | Gastric/Duodenal Ulcer | Two years | 8 | Gout & Rheumatism | Two years | 9 | Hernia of all types | Two years | 10 | Hydrocele | Two years | 11 | Hypertension | Two years | 12 | Hysterectomy for Menorrhagia/Fibromyoma, Myomectomy and Prolapse of uterus | Two years | 13 | Non Infective Arthritis | Two years | 14 | Piles, Fissure and Fistula in Anus | Two years | 15 | Pilonidal Sinus, Sinusitis and related disorders | Two years | 16 | Prolapse Inter Vertebral Disc unless arising from accident | Two years | 17 | Stone in Gall Bladder & Bile duct | Two years | 18 | Stones in Urinary Systems | Two years | 19 | Unknown Congenital internal disease/defects | Two years | 20 | Varicose Veins and Varicose Ulcers | Two years | 21 | Age related Osteoarthritis & Osteoporosis | Four years | 22 | Joint Replacement due to Degenerative Condition | Four years |
10. The aforesaid clause of Mediclaim Policy, being unambiguous and clear, admits of no doubt . R-5 copy of the opinion of the doctor who treated the wife of the complainant, reads as under ; “Patient admitted and diagnosed bulky uterus, adenomyosis, LAVH done. As the policy is in 2nd year of inception and Hysterectomy comes under first two years of exclusion. Hence the claim is non payable as per clause 4.3 of the Policy. Bulky uterus, adenomyosis.” It was, therefore, that on the basis of the opinion of the doctor that the claim of the complainant was repudiated vide letter annexure R-4. It is evident from the aforesaid clause that, from the time of inception of the cover, the policy will not cover the diseases/ailments, one of which was “Hysterectomy for Menorrhagia/Fibromyoma, Myomectomy and Prolapse of uterus” for a period of two years. Since, the parties were bound by the terms and conditions of the policy, and Hysterectomy was done within two years of the inception of policy, the same fell under the exclusion Clause 4.3 of the terms and conditions referred to above. In National Insurance Co. Ltd. Vs Arun Kumar Goyal I(2011)CPJ 266, the complainant took a mediclaim policy. As per the terms of the policy, claim for congenital disease was not payable in the first year of Policy. The complainant was having internal heart disease right from birth. He underwent open heart surgery, as advised by the doctor in the first year of the Policy. His claim was repudiated under exclusion Clause 4.3. He filed a complaint, claiming the amount spent by him for his operation etc. His complaint was accepted by the District Forum. An appeal filed by the Insurance Company in the State Commission was dismissed. The Hon’ble National Commission, accepted the aforesaid Revision Petition, and set aside the orders of the Lower Foras, on the ground, that since the open heart surgery was conducted within one year of the policy, the case fell within the exclusion Clause 4.3 of the terms and conditions of the policy. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The learned District Forum, thus, was wrong, in coming to the conclusion, that no evidence was produced, on record, by the OPs, that the terms and conditions of the policy, were supplied to the complainant, or his wife. The District Forum, also failed to take into consideration the exclusion Clause 4.3 of the terms and conditions of the policy, as a result whereof, it fell into an error in accepting the complaint. The OPs, in our considered opinion, rightly repudiated the claim of the complainant vide letter dated 13.1.2009, in view of Clause 4.3 of the Terms and Conditions of the Policy. The complaint, was, thus, liable to be dismissed. The order of the District Forum suffers from illegality, warranting interference of the Commission. The appeal deserves to be accepted. 11. For the reasons recorded above, the appeal is accepted, with costs, quantified at Rs.3000/-. The order of the District Forum is set aside. The complaint shall stand dismissed.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
