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.361501/48/07/8500000528 for the period from 08.09.2007 to 07.09.2008 from the O.P-1 which covers the complainant, his wife, daughter for a sum insured of Rs.2,50,000/- for himself, Rs.2,00,000/- for his wife and his daughter for a capital sum insured of Rs.1,00,000/-. It is further alleged that complainant also paid the consideration amount of Rs.8,812/- to the O.Ps in lieu of the same which covers cashless facility also. It is alleged that O.Ps only gave a computerized policy and have not given any terms and conditions alongwith. It is further alleged that complainant was feeling uneasy when he visited Ganga Ram Hospital on 09.05.2008 when after checkup it was found that the complainant was suffering from HYDRADENITIS and the complainant was advised for admission in the Hospital and to undergo an operation by Dr. S.S. Saha after various test were performed. It is alleged that complainant immediately intimated O.P-1 when he was advised to send intimation to O.P-2 which was sent by fax about the case to M/s Genins India Ltd., the TPA authorized by the complainant as desired by them and submitted a detailed form giving the duration and expenses involved in the treatment which were to the tune of Rs.1,50,000/-. It is further alleged that the said TPA was also requested to give approval for cashless facility as per the contract of insurance. It is alleged that the TPA i.e. M/s Genins India Ltd., O.P-2 informed Ganga Ram Hospital on 07.06.2008 that cashless facility cannot be granted to the complainant. It is further alleged that complainant got himself admitted in Sir Ganga Ram Hospital on 23.07.2008 by depositing an amount of Rs.35,000/- vide receipt No.2008/33841, where required treatment was started/ conducted by Sir Ganga Ram Hospital on 23.07.2008. The complainant hospitalized till 29.07.2008 when he was discharged. It is further alleged that complainant spent a sum of Rs.1,28,000/- for the same as per hospital bill No.2008-2009/Ca/I/0017533 dated 29.07.2008. It is alleged that complainant paid advance sum of Rs.35,000/- on 23.07.2008, Rs.75,000/- on 28.07.2008 and Rs.18,542/- on 29.07.2008. It is further alleged that intimation about the admission was lodged immediately by the complainant with the O.Ps. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.1,28,542/- with interest @ 24% p.a. 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 complainant had taken policy referred to above. It is alleged that the as per report of the TPA of answering O.P, the TPA has not received the reimbursement claim papers from the insured/ complainant. It is further alleged that the TPA had received only cashless request and same was denied by TPA under clause 4.1 of the insurance policy. Dismissal of the complaint has been prayed for.
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 Mrs. Savitri Raghuraman, Divisional Manager has filed affidavit in evidence on behalf of O.P testifying all the facts as stated in the written statement and Mrs. Sunita, Deputy Manager has also filed additional evidence by way of affidavit on behalf of the O.P i.e. National Insurance. Co. Ltd. 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 as to whether insurance company was justified in repudiating the claim submitted by the insurer on the ground of pre-existing disease. The answer is in the negative. The plea of the Insurance is that the claim was repudiated under clause 4.1 of the Insurance Policy which excluded a number of diseases as pre-existing diseases. It is now well settled law that the insurance can repudiate the claim on the ground of pre-existing only if, firstly the insurance has been able to prove the pre-existing disease and secondly the terms and conditions of Policy were duly intimated to the insurer at the time of exclusion of Insurance Policy. Unfortunately, both the conditions have not been met by the Insurance. There is no iota of evidence or any documentary medical evidence which could link the pre-existing disease. Secondly, Insurance has also not been able to substantiate as to how and in which manner they furnished the terms and conditions of policy to the insurer. It is also well settled law that the Insurance policy cannot invoke the terms and conditions which were never supplied to the insurer. In case titled III (2012) CPJ 322(NC) NIC Vs. Girin R. Shah the court held as under:- Consumer Protection Act, 1986 – Sections 2(I)(g), 21(b) – Insurance (Mediclaim) – Abscess inside the anus developed- Surgery performed – Death of insured – Suppression of pre-existing disease alleged – Claim repudiated – Alleged deficiency in service – District Forum dismissed complaint – State Commission allowed appeal – Hence revision – Insurance Co. failed to establish link between any pre-existing disease and the abscess for which insured was operated - State Commission rightly held that condition No.4.1 of insurance policy document could not be applied for rejecting the claim of expenses for the treatment – Deficiency in service on part of Insurance Company proved – Compensation awarded.
6. 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 and it was held that Insurance Co. has failed to prove the same.
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.1,28,542/ with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.2,000/- towards harassment mental agony loss of time and Rs.4,000/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 05th day of January, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
