O R D E R
SUBHASH GUPTA, MEMBER
The complainants have filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainants are the joint mediclaim policy holders uninterruptedly since the year 1985-86 and having the current joint mediclaim policy bearing No.354100/48/05/8500001594 valid for the period from 01.10.2005 to 30.09.2006. It is alleged that in the month of September 2006 the complainant No.2 i.e. Mrs. Anita Goyal was having some chest congestion and related problem and was admitted in Pentamed Hospital, Gujranwala Town, Delhi on 16.09.2006 for treatment of Bronchial Asthma and was discharged on 19.09.2006. It is further alleged that an intimation to this effect was communicated to the O.P-1 on 16.09.2006 itself. It is alleged that the complainant No-2 spent a sum of Rs.26,886/- on her treatment. It is further alleged that the complainant No-2 submitted all the original medical Hospital bills etc. with the O.Ps for reimbursement of the said amount which was paid by the complainant No-2 for her treatment. It is alleged that on 26.12.2006 claim of the complainant No.2 was rejected as being Non-Tenable on baseless ground. It is further alleged that O.Ps has not given any claim to the complainant No.2. On these facts complainants prays that O.Ps be directed to reimburse the mediclaim amount of Rs.26886.50 with interest and also to pay cost and compensation as claimed.
2. O.P-1 appeared and filed its written statement. In its written statement, O.P-1 has not disputed that complainants had taken the policy referred to above. It is alleged that the complainant had pre-existing disease as the complainant was admitted and diagnosed case of Acute Exacerbation of Bronchial Asthma with chest infection and had episode of Asthma approximately four years back, since the said disease falls under the exclusion clause 4.1 of mediclaim policy terms and conditions, therefore, the claim was rightly refuted. Dismissal of the complaint has been prayed for.
3. Complainant No.1 has filed his affidavit affirming the facts alleged in the complaint. On the other hand Sh. Ashok Kumar Goyal, Divisional Manager, has filed affidavit in evidence on behalf of O.P-1 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 and have heard submissions of Ld. Counsel for the parties.
5. The main controversy involved in the present case is as to whether the repudiation by the O.Ps on the ground of pre-existing disease was justified or not. We have gone through the contents of the policy executed between complainant and the O.Ps. There is nothing on record that claim shall be rejected on the ground of pre-existing disease. The O.Ps has relied upon condition No.4.1 which according to them related to pre-existing disease and excluded the claim of the insured if he had pre-existing disease at the time of issuance of the policy. The complainant has placed on record various policies issued since the year 1987-88, and 2002 to 2006 in continuation annually. Even if the plea of O.Ps regarding clause 4.1 is accepted the ground for rejection of the claim cannot be justified as the O.Ps have failed to prove any pre-existing disease at the time of inception of the policy for the first time. The complainant in its rejoinder has pleaded that no terms and conditions of the policy were ever supplied and the policy issued by the O.P did not contain any terms and conditions. It has also come on record that O.Ps has not supplied the terms and conditions to the insured at the time of execution of contract of insurance. It is now well settled law that if the terms and conditions do not form part of the insurance policy or they were not furnished subsequently to the insured, the company cannot rely on the said terms and conditions for repudiation of the claim filed by the insured.
6. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, “the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced.”
7. Next question arises is whether the ailments suffered by the complainant is said to be pre-existing disease the answer is again in the negative. In Aviva Life Insurance Claim Department Vs Sharanjeet Kaur IV (2014) CPJ 124 (PUNJ), “death-claim was repudiated on ground of suppression of pre-existing disease. The court held that hypertension is a life style disease, easily controllable with conservative medicine. Insured not deliberately concealed material fact, repudiation was held unjustified. Insurer cannot repudiate the contract unless the fact is actually material. Insurer can avoid policy only by proving that the statement is false and fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone.” The O.Ps have failed to prove that the disease was prior to inception the date of policy. O.Ps have not led any evidence to prove it. Also the mediclaim policies in this case are continuous for a long period.
8. Keeping in view the discussion above the O.Ps repudiation of the claim was on frivolous grounds, therefore, O.Ps were deficient in service. We, therefore, award a sum of Rs.26,886.50 with interest @ 6% from the date institution of the complaint till payment, we further award a sum of Rs.5,000/- towards harassment mental agony and loss of time which will also include litigation expenses.
Copy of this order be sent to the parties as per rules.
Announced this 08th day of April, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
