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 (family) bearing No.354100/48/06/8500002823 for the period from 04.02.2007 to 03.02.2008 from the O.P-1. It is alleged that Deepak Parashar, son of the complainant, was admitted in the Ekansh Nurshing Home, Sahabad Delhi on 18.07.2007 and was discharged on 23.07.2007. It is further alleged that later on the complainant paid all the hospital bills and submitted his claim for reimbursement of Rs.18,983/- to the O.P-2. It is alleged that inspite of submitting all the papers the O.P-2 passed an amount of Rs.13,983/- and disallowed the sum of Rs.5,000/- on the vague and false ground of Extra Nursing charges and extra room rent. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.5,000/- towards the deducted amount of claim alongwith interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P-1 & 2 appeared and filed its written statement. In the written statement O.P-1 & 2 have not disputed that complainant had taken policy referred to above. It is alleged that the total claim of the complainant was for a sum of Rs.18,983/- and the O.P-2 allowed the claim for a sum of Rs.13,983/-. The complainant having received the sum of Rs.13,983/- is not entitled to any further amount as the amount of the Rs.5,000/- was not found to be payable as under the terms and condition of the policy. It is further alleged that the O.P-2 did not find Rs.5,000/- to be payable as the same was for extra nursing charges and for extra room rent. It is alleged that O.P-2 had explained the same to the complainant and as such the complaint of the complainant is liable to be dismissed.
3. Complainant has filed rejoinder reiterating all the facts as mentioned in the complaint. He has also filed his affidavit affirming the facts alleged in the complaint. On the other hand Mr. H.P. Srivastava, Asstt. Manager has filed affidavit in evidence on behalf of O.P-1 testifying all the facts as stated in the written statement and Mr. Ajay Roy, Authorized Signatory has also filed his 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. In this case the stand taken by O.Ps is that it had already allowed the claim of the complainant for the sum of Rs.13,983/- on the recommendation O.P-2. However, the complainant was not entitled to further amount of Rs.5,000/- as per the terms and conditions of the policy. Needless to say that complainant had filed a claim of Rs.18,983/- out of which the O.P allowed to the tune of Rs.13,983/- leaving an amount of Rs.5,000/- being now entitled to. It is strange that O.Ps has nowhere mentioned even in written statement, evidence or in written submissions as to what were the terms and conditions under which it disallowed the amount of Rs.5,000/-. The so called terms and conditions relied upon by the insurance by disallowing the total amount of claim is Ex. RW-1/1. Admittedly, these terms do not form part of the insurance policy. Rather it is a full-fledged separate document term 1.0 of which talks about the payment for medical claim with regard to room/ boarding/ nurshing expenses. It has also circumscribed the maximum limit payable by the O.P. Now the question arises whether the O.P was justified in relying upon the terms and conditions contained in Ex.RW-1/1 for deductions. The answer is in the negative. It is now well settled law that terms and conditions can be relied upon by the insurance company only if the same were furnished to the insured either at the time of execution of the policy or thereafter. It has also come on record that the terms and conditions of the policy were never supplied to the complainant. In case titled 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. This was also held in this case that as per settled principle of law, it is responsibility of the Insurance Company to prove the pre-existing disease by leading medical evidence which has not been done in the present case.
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.5,000/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.5,000/- 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 04th day of March, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
