Per Justice Shri S.B.Mhase, Hon’ble President:-         

Heard Adv.Ms.Prisila Samuel for the appellant.  Leave to amend.

          This appeal takes an exception to an order dated 30/03/2010 passed in consumer complaint no.121/2007 by District Consumer Disputes Redressal Forum, Thane.  The complaint which was filed by respondent was partly allowed and the appellant no.1 along with respondent no.2 was directed to make payment of `97,417/- along with interest @ 9% p.a. from the date of filing of the complaint.  The appellant and respondent no.2 are further directed to pay an amount of `10,000/- towards mental harassment and agony.  It is further directed that the appellant and respondent no.2 shall pay `4,000/- by way of costs of the complaint.  They are directed to pay these amounts within period of 30 days and failure to pay will carry interest @ 3% p.a. from the date of judgment till its final recovery.  The admitted facts are like this:

          So far as the respondent no.1 is concerned, respondent no.1 was/is taking mediclaim policies from the appellant since 16/10/1996 and/or year to year basis.  These polices have been extended by the respondents by paying appropriate mediclaims premiums.  Under these mediclaims,  the various members from the respondent’s policy were/are insured including the respondent.  The policies which are issued by the appellant since 1996-1997 on year to year basis have been produced along with appeal memo.  It is not disputed that in the year 2003-2004 the policy was issued in favour of respondents and in this year the respondent no.1 was admitted in the Bombay Hospital for period from 19/07/2004 to 23/07/2004 for disease of Menorrhagia and  incurred expenditure of `97,417/-.  Thereafter, the claim of insurance was made with the appellant.  The appellant company informed about the repudiation of the claim.  However, the appellants are relying upon a letter issued by Heritage Health Services, who is agent of the appellant.  This is a letter dated 22/07/2006.  In this letter it is stated that reason for repudiation of claim is as under:

“       As per the available information patient was admitted in Bombay Hospital for fibroid uterus with menorrhagia for which vaginal hysterectomy was done.  BUT AS POLICY IS IN FIRST YEAR running, THIS CASE FALLS UNDER EXCLUSIONS MENTIONED IN 4.3 WHICH STATES THAT THE company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person”.

          Thus, from this repudiation letter it appears that the appellant is relying on clause no.4.3.  Clause 4 is in respect of exclusion of liabilities and  clause no.4.3 is as follows:

“       During the first year of the operation of insurance cover the expenses on treatment of diseases such as Cataract, Benign prostatic Hypertrophy, Hysterectomy  for Mennorrhagia or Fibromyoma, Hernia, Hydicele, Congenital  internal diseases, fistula in anus, piles, Sinusitis and related disorders are not payable.  If these diseases are pre-existing at the time of proposal they will not be covered during subsequent period of renewal too”.

          This clause therefore requires to be considered in the facts and circumstances that the respondent herein is taking policies from the year 1996 on year to year basis as per the policies issued by the appellant.  From the policies which are record, we find that mediclaim policies are always  issued only for a year and insurance company is not issuing insurance policy which will cover period for more than one year.  Therefore, reading the clause as it is, all these diseases in the first year of policy will not be covered and even though the mediclaim exists, the person is not entitled to get benefits for these diseases as mentioned in clause 4.3.  This itself defeats the object of mediclaim.  This is unfair practice on part of insurance company.  However, we need not to go into this larger issue in the present case because present respondent is insured with the appellant since 1996.  It is not a case of appellant that the disease for which the respondent was treated by Bombay Hospital was pre-existing disease prior to year 1996.  It is to be noted that all the policies issued by appellant will have to be read together.  If policy is for a period of one year then at no point of time mediclaim can be made for Hysterectomy for mennorrhagia as per clause 4.3.  But in case of continuous renewed polices, the circumstances, interpretation of clause 4.3 will be change.  Therefore, when there are more than three continuously renewed policies of same family are insured, the benefit of medicalim can be extended to the insured, at least in the third year of policy treating all the policies a composite agreement of insurance.  Thus, interpreted respondent is entitle to benefit of insurance claim.  However, the policies continuously renewed, the complainant is entitled to get benefits of said policy in year 2003-2004 when the complainant was admitted.  The last line of said clause is very important, which states that

 “  If these diseases are pre-existing at the time of proposal they will not be covered during subsequent period of renewal too”.   Therefore, unless and until the appellant shows that this was pre-existing disease prior to 1996 when for the first time the policy was issued in favour of respondent no.1 on the basis of renewal,  the respondent/complainant is entitled to get benefits of the policy and therefore, we do not find any substance in the appeal.

          The appellants are aware of these facts.  However, they are interested in non-payment of amount to the respondent.  Therefore, they themselves denied the claim.  The agent is not supposed to refuse the claim.  The agent can make proposal to insurance company.  We can understand the agent making a proposal of claim and submitting it to the insurance company for getting mediclaim.  From the letter which is issued by the agent, the agent nowhere make a reference that appellant has authorized him to convey the repudiation to the respondent.  Not only that when for the first time insurance company was served by the District Consumer Disputes Redressal Forum, the company preferred to remain absent.  Thereafter, the appellant preferred an appeal being A.No.1572/2007 before State Commission.  It was decided on 07/10/2008 and State Commission having found that since it is decided ex-parte even though the appellant was served and there were no reasons to remain absent,  gave a chance by remanding the matter back to District Consumer Redressal Forum in the interest of justice.  Thereafter, case has been decided by District Consumer Disputes Redressal Forum, Thane.  Having found that this is a fit case, in fact the appellant should not have preferred an appeal.  Since they have animus of not to make payment to the respondent/complainant and harass the complainant by making him run from pillar to post to get amount, this appeal has been filed by the appellant.

          This reflects the malafide intention of the company and business to harass the complainant, who is taking continuously insurance policies from insurance company.  Ultimately, what we find that there is no substance in the appeal.  However, for a reason which is not justifiable, the appeal has been filed.  Reasonably sufficient time has been consumed in conducting the admission.  Hence, we pass the following order:-

                                                :-ORDER-:

1.       Appeal stands dismissed with cost of `10,000/-.

2.       Dictated on dais in presence of parties.

3.       Copies of the order herein be furnished to the parties.