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.360701/48/07/8500001519 for the period from 11.12.2007 to midnight of 10.12.2008. It is alleged that unfortunately the complainant felt acute chest pain on 18.02.2008 and was admitted to the Delhi Heart and Lung Institute for treatment. It is further alleged that on 01.03.2008 complainant was discharged from the hospital and a bill of Rs.2,40,096/- was raised towards his hospitalization expenses. It is alleged that the complainant submitted all the original medical Hospital bills etc. with the O.Ps to reimbursement of the said amount which was paid by the complainant for his treatment. It is further alleged that O.Ps has not given any claim to the complainant. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.2,40,096/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P appeared and filed its written statement. In its written statement, O.P has not disputed that complainant had taken policy referred to above. It is alleged that there is violation of terms and conditions of the insurance policy by the insured as the insured has deliberately suppressed certain material facts from the O.P while taking the policy and as such the complainant is not entitled to claim any amount from the answering O.P. It is further alleged that while taking the mediclaim policy, the claimant has deliberately concealed the fact about the pre-existing disease from the insurance company and as such the policy has been obtained just to take undue advantage and misuse of public money and as such the same is required to be dismissed with heavy costs.
3. Complainant has filed his affidavit affirming the facts alleged in the complaint. On the other hand Shri Balwan Singh, A.O. has filed affidavit in evidence on behalf of O.P 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 submission of Ld. Counsel for the complainant.
5. The main controversy involved in the present case is as to whether the repudiation by the O.P on the ground of pre-existing disease was justified or not. I have gone through the contents of the policy executed between complainant and the O.P. There is nothing on record that claim shall be rejected on the ground of pre-existing disease. The O.P 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 execution of the policy. Unfortunately the O.P has not placed on record the copy of terms and conditions. It has also come on record that O.P 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. Next question arises is whether the ailments suffered by the complainant 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, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone.
7. Even otherwise it has come on record that hypertension was mistakenly written in the medical record by the Hospital. Also hypertension cannot said to be a pre-existing disease because it has been laid down that hypertension is a lifestyle ailment which can be controlled by traditional treatment, therefore, can never be said to be a pre-existing disease.
8. Keeping in view the discussion above the O.P repudiate the claim on frivolous grounds, therefore, deficiency in service. We award a sum of Rs.2,40,096/- with interest @ 6% from the date institution of the complaint is date 17.02.2010 till payment, the further award of Rs.10,000/- towards harassment mental agony 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 February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member