O R D E R
K.S. MOHI, PRESIDENT
The complainant has 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 complainant had taken a mediclaim policy bearing No.350304/48/08/8500002327 in sum of Rs.5,00,000/- issued by O.P-1. It is alleged that unfortunately the complainant was diagnosed with relapse of the disease suffered by him i.e. marginal cell lymphoma for which complainant was treated in year 2006 and received 8 cycles of CHOP and his evaluation showed completed regression, however, on a biopsy conducted on 06.04.2009 complainant was re-diagnosed with almost similar problem i.e. splenic marginal zone lymphoma. It is further alleged that thereafter complainant was immediately admitted in Rajiv Gandhi Cancer Institute and was administered R-CVP based chemotherapy on three occasions from 06.04.2009 to 06.05.2009 and thereafter chemotherapy continued for further cycles but that is not relevant for the present complaint. It is alleged that complainant spent a sum of Rs.1,94,433/- within the period of 30 days from the date of first admission and 60 days after the date of last discharge i.e. on 06.05.2009. It is further alleged that the complainant submitted all the original medical Hospital bills etc. with the O.Ps for reimbursement of the said amount which was paid by the complainant for treatment. It is alleged that claim of the complainant was repudiated vide letter dated 25.03.2010 by the O.Ps. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.1,94,433/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P-1 & 2 appeared and filed the written statement. In its written statement O.P-1 & 2 has not disputed that complainant had taken policy referred to above. It is alleged that the complainant had not intimated the O.P-2 about the said hospitalization and his treatment. It is further alleged that the complainant filed his claim before the O.P-2 after a long delay and as such the claim of the complainant was rejected by the O.P-2. It is alleged that as per the clause No.5 (5.3) of the terms and conditions of the policy the complainant is required to intimate the O.P-1 within seven days of the hospitalization. It is further alleged that the complainant failed to intimate the O.Ps within seven days from the date of hospitalization and did not submit the claim with the O.Ps within 30 days as required under clause 11 of the terms and conditions of the policy and as such the claim was rightly repudiated by the O.P-2. It is alleged that the complaint is barred under the terms and conditions No.5 (5.3) and 11 of the policy. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint. On the other hand Sh. Manohar Lal, Deputy Manager has filed affidavit in evidence on behalf of O.P-1 testifying all the facts as stated in the written statement and Dr. Zaful-Ul Abideen, has also filed evidence by way of affidavit on behalf of the O.P-2. 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. Counsels for the parties.
5. The main controversy revolves round the issue is as to whether insurance company was justified in repudiating the claim submitted by the insurer on the ground of delay in intimation. The answer is in the negative. The plea of the Insurance is that the claim was repudiated under clause 5 (5.3) and 11 of the terms and conditions of the Insurance Policy. It has also come on record that the terms and conditions of the policy were never supplied to the complainant. Now it is to be seen whether the O.Ps can, all of a sudden, use the terms and conditions as shelter which were never supplied to the complainant. In case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that 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, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. In another case titled III (2009) CPJ 246 (NC) United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr., it was held that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the terms and conditions of the insurance policy were not supplied to the complainant, it was neither aware of the exclusions, nor was bound by the same.
6. In view of the aforesaid discussion and circumstances of the case, we are of the considered view that the complainant was never supplied with the terms and conditions of the policy. Hence, the O.Ps cannot take help of the said terms and conditions. Accordingly the repudiation by O.P is held to be unjustified.
7. Keeping in view the discussion above the O.Ps repudiate the claim on frivolous grounds, therefore, deficiency in service. We award a sum of Rs.1,94,433/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.10,000/- towards harassment mental agony loss of time which will also include cost of litigation.
Copy of this order be sent to the parties as per rules.
Announced this 24th day of May, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
