Ex- P A R T E   O R D E R              

PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant has filed this complaint against the Opposite Parties on the ground that the Opposite Parties have wrongly repudiated the claim lodged by the Complainant as per part II of the schedule exclusion 3.3 expenses incurred on treatment of stones in the urinary and billary system within the first two years from the commencement of the policy will not be payable and hence, rejected vide its letters dtd.13/03/2010 i.e. Exh.‘G’ annexed to the complaint.

 2)        According to the Complainant, he had obtained Mediclaim Policy from the Opposite Party No.2 for the period of one year i.e. financial year 2008-2009 and paid premium of Rs.15,000/- on 02/05/2008.  The Opposite Parties had issued the Health Advantage Plus Insurance Policy to the Complainant.  Thereafter, the said policy was further renewed for further period of one year from 05/06/2009 to 04/06/2010 against the premium of Rs.15,000/-.  The said policy is at Exh.‘A’.  Exh.‘B’ are the copies of the information sheet and premium certificate issued by the Opposite Parties.  According to the Complainant, no other documents were furnished by the Opposite Parties except Exh.‘A’ & ‘B’, at the time of subscribing of the policy or at the time of renewal of the policy.  Opposite Party No.1 represented the Complainant that the policy issued by Opposite Party No.2 is one of the best policy having maximum coverage to the hospitalization and having the lesser exclusion of the disease. The Complainant states that on believing the said assurances and representations on the Opposite Party No.1 had subscribed the said policy and renewed the same.

 3)        According to the Complainant, in the month of Dec., 2009, the Complainant was having tremendous stomach ache in the right upper quadrant rid and therefore, he approached to Dr. Ajay Garg for preliminary examination as per the advised of Dr. Garg he had undergone certain tests from Dr. Bharat M. Gala (Radiologist) such as, abdomen sonography.  On receipt of the report of sonography Dr. Garg referred the Complainant to Dr. Kothari, who had also advised the Complainant to get certain tests done from Kokilaben Dhirubhai Ambani Hospital to know the definite cause of the said chronic pain.  Accordingly, the Complainant had undergone the said tests at the aforesaid hospital and incurred the amount for such tests.  The copies of invoices of such tests are at Exh.‘C’ & ‘D’.  The report of the said investigation showed multiple gall stones with CBD Stone.  The Complainant was advised to approach Dr. Hemant Vedeyar for the curative measures or surgery.  Accordingly, on 10/02/2010, as per the guidance of Dr. Vedeyar admitted in his hospital for extracting large CBD by performing mechanical Lithotripsy.  According to the Complainant, on 11/02/2010 ERCP was done and large CBD Stone extracted by mechanical Lithotripsy by Dr. Vedeyar. The Complainant was also advised to undergo Laparoscopic Cholecystectomy immediately.  The Complainant was discharged on 12/02/2010.  The Complainant has filed copies of discharge card and invoices for the said surgery and medicines at Exh.‘E’.  According to the Complainant, as per the advice referred above on 17/02/2010 eh was admitted in Kokilaben Dhirubhai Ambani Hospital for Curative Laparoscopy Cholecystectomy and the said was performed on 18/02/2010 and he was discharged on 20/02/2010.  The copies of said treatment and invoices including bills of medicines are filed at Exh.‘F

4)        The Complainant has alleged that for all the above treatment he incurred expenditure of Rs.1,93,691/-.  According to the Complainant, the coverage provided under the policy which he had obtained from the Opposite Parties was Rs.3 Lacs.  The Complainant therefore, lodged the mediclaim to the Opposite Party on 05/03/2010 and furnished the entire set of bills and treatment documents invoices raised by the concerned doctors.  It is alleged that after fling of the claim by the Complainant he received SMS on his mobile that his claim has been rejected.  The Complainant immediately vide his e-mail dtd.15/03/2010 contacted the Opposite Parties to know the reason as to why his claim has been rejected.  The Opposite Party vide its e-mail dtd.15/03/2010 informed that as per part II of Schedule Exclusion 3.3 of the policy will not be payable hence, rejected.  According to the Complainant, at no point of time during the period of one and half year it was ever disclosed to the Complainant that there was another part of the said policy.  As the copy of the same was never furnished to the Complainant.  Complainant on receipt of the said information immediately vide his e-mail dtd.17/03/2010 communicated the correct facts to the Opposite Party and stated that the Schedule II was never a part of his policy.  The Complainant also informed that only the exclusion clause shown on the information sheet was shown to him.  The Complainant by the aforesaid e-mail called upon the Opposite Party No.2 to clarify the said aspect by deputing any of their representatives.  The copies of the said e-mails are at Exh.‘G’.  It is alleged that in response to the e-mail dtd.17/03/2010 the Opposite Party vide its e-mail dtd.18/03/2010 forwarded the soft copy of the alleged Schedule II and III of the said policy.  On 22/03/2010 the Complainant vide his e-mail brought to the notice of the Opposite Party their dishonest intention behind no furnishing the said schedule and not informing the Complainant about the same while subscribing the said policy and demanded the hard copy of the same.  Such request was again made by the Complainant by his e-mail dtd.23/03/2010, 26/03/2010, 06/04/2010 and 10/04/2010 and also called upon the Opposite Party to specify the reasons as to why the said alleged schedules were not furnished to the Complainant.  According to the Complainant, inspite of his specific demands and calling upon explanation from the Opposite Party There is no reply as to why and so had furnished the copy of the said alleged schedules to the Complainant. It is submitted that therefore, the repudiation of the claim lodged by the Complainant to the Opposite Party as per Exh.‘G’. The Complainant has also filed the e-mail correspondence exchanged between the Complainant and the Opposite Party at Exh.‘H’.

 5)        It is alleged that as per I.R.D.A.’s guidelines it is mandatory to the Insurance Company to expressly disclosed all the schedules to the policy holder.  In the present case the Opposite Parties had not done such exercise in respect of the Complainant hence, at belated stage they cannot take shelter to serf their legal liability.  The Complainant has therefore, prayed that the Opposite Parties be directed to reimburse the aggregate amount of Rs.193,691/- incurred by the Complainant towards his medical treatment together with interest @ 18% p.a. from the date of repudiation of the claim i.e. 15/03/2010 till its realization.  The Complainant has claimed in view of the deficiency on the part of Opposite Parties he has also entitled for adequate compensation of Rs.1 Lac towards mental agony and mental harassment and cost of Rs.25,000/- towards the present proceedings.  The Complainant has therefore, totally claimed Rs.3,18,691/- from the Opposite Parties.  

 6)        The Opposite Parties were served with the notices of this complaint and therefore they were marked as ex-parte in this proceeding.  The Complainant has filed claim affidavits and notes of arguments. We also heard the Ld.Advocate for the Complainant, Shri. S.B. Prabhavalkar. 

 7)        While considering the claim made by the Complainant and by referring the documents filed alongwith the complaint it appears that the Complainant has placed on record all the relevant documents regarding his medical treatment mentioned in the complaint and the claim lodged with the Opposite Parties, it is a fact that the policy obtained by the Complainant was valid and subsisting during the period when he had obtained the medical treatment as alleged in the complaint.  It is pertinent to note that in the information sheet in exclusions in Clause ‘F’ it was informed to the Complainant that certain ailments will be excluded from treatment for two years : Cataract, Hernia, Benign, Prostatic, Hyper Therapy, Hydrosol, Sinusitis and related disorders, Arthritis, Gastric and Duodenal ulcers etc.  In the said exclusions mentioned on information sheet of the policy documents issued to the Complainant there is no mention that there is two years waiting period as per part II of the Schedule Exclusion 3.3, expenses incurred on treatment of stone in the urinary and billary system within the first two years from the commencement of the policy and the same will not be payable.  It is pertinent to note that the Complainant has specifically informed to the Opposite Parties that they kept hidden Schedule II & III to him while issuing policy.  We have gone through the e-mail and correspondence placed on record addressed by the Opposite Parties to him, it appears that the Opposite Parties have not made it clear as to how and when the Schedule II & III were delivered to the Complainant.  The evidence of Complainant filed on record by his affidavit goes unchallenged.  The Opposite Parties have not contested the allegations made against them regarding non disclosure of clause 3.3 as per part II of the Schedule.  There is also confusion in the e-mail forwarded by the Opposite Party regarding exclusion clause in the e-mail dtd.17/03/2010 issued by the Opposite Parties.  The Exclusion clause pointed out as 2.2.  The Hon’ble Supreme Court in the case of M/s. Modern Insulators Ltd. V/s. The Oriental Insurance Co. Ltd. in Civil Appeal No.6895 of 1997 decided on 22/02/2000 observed as under –

“It is the fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non disclosure of the facts who is the party know.  The insured as a duty to disclose and similarly it is the duty of the Insurance Company and its agent to disclose all material facts in their knowledge since, obligation of good faith applied to both equally.  In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct.  As the above terms and conditions of the Standard Policy wherein the exclusion clause was includes, were neither the part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause therefore, the finding of the National Commission is untenable in law”.  In the said case the Hon’ble Supreme Court held that if the exclusion clause has not been communicated to the insurer the Insurance Company cannot claim the benefit of the said exclusion clause. We therefore, hold that in view of the case made out by the Complainant and as the Opposite Party has not contested the claim before this Forum, the allegation made by the Complainant can be accepted to be true.  The Complainant has claimed an amount of Rs.1,93,691/- towards his treatment and also produced the documents to that effect therefore, we hold that the Complainant is entitled for the said amount from the Opposite Parties.   The Complainant has claimed interest @ 18% p.a. from the date of repudiation of the claim i.e. 15/03/2010 till its realization.  We hold that the said rate of interest is exorbitant, in our view interest @ 9% p.a. on the amount of Rs.1,93,691/- from 15/03/2010 till its realization would be just and proper.  The claim made by the Complainant regarding compensation for deficient services on the part of the Opposite Parties of Rs.1,00,000/- is also much excessive and exorbitant. We hold that an amount of Rs.25,000/- would be just and proper towards the mental agony and harassment suffered by the Complainant.  We also hold that the Opposite Parties are liable to pay cost of Rs.5,000/- towards this complaint to the Complainant.  In the result following order is passed –

O R D E R

i.                    Complaint No.254/2010 is partly allowed.

ii.                 The Opposite Parties jointly and/or severally do pay an amount of Rs.1,93,691/- (Rs. One Lac Ninety Three Thousand Six Hundred Ninety One Only) together with interest @ 9% p.a. from 15/03/2010 till its realization to the Complainant.

iii.               The Opposite Parties do pay jointly and/or severally an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) towards their deficiency of service and mental agony and harassment suffered by the Complainant.

iv.               The Opposite Parties do pay cost of Rs.5,000/- (Rs. Five Thousand Only) towards this proceeding to the Complainant. 

v.                  The Opposite Parties shall jointly and/or severally comply with the aforesaid order within 1 month from the receipt of the copy of this order.

vi.               Certified copies of this order be furnished to the parties.