O R D E R
SUBHASH GUPTA, MEMBER
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 Baroda Health Policy bearing No.354502/48/07/850000556 for the period from 18.09.2007 to 17.09.2008 this policy was renewed with policy bearing No.361501/48/08/850000651 for the period from 18.09.2008 to 17.09.2009. The said policy covered the complainant, her husband Sh. Radhey Shyam and children Gaurav Garg and Gagan Garg. It is alleged that the complainant regularly paid premium since 18.09.2007 annually toward Baroda Health Policy to O.P-1. It is further alleged that on 19.06.2008 the son of the complainant namely Gagan Garg after regular check-up and was admitted in St. Stephen Hospital on 14.10.2008 for operation and same was discharged on 17.10.2008. It is alleged that the complainant spent a sum of Rs.12,130/- on her son’s treatment. 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 her son’s treatment. It is alleged that on 29.01.2009 claim of the complainant was rejected by the O.Ps on the ground of pre-existing disease. 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 reimburse the mediclaim amount of Rs.12,130/- with interest and also to pay cost and compensation as claimed.
2. O.Ps appeared and filed their written statements. In its written statement, O.P-1 & 2 has not disputed that complainant had taken the policy referred to above, which covered the complainant, her husband and children. It is alleged that as per the opinion of the TPA and the documents submitted by the complainant the claim of the complainant fell under exclusion clause 4.1. It is further alleged that the case was related to pre-existing disease which is a standard exclusion in the mediclam policy under clause 4.1 of the policy. Hence the claim was inadmissible under pre-existing exclusion clause 4.1 and was repudiated. It is alleged that the O.Ps have rightly repudiated the claim and there is no deficiency in service on their parts. Dismissal of the complaint has been prayed for.
3. Complainant has filed her affidavit affirming the facts alleged in the complaint. On the other hand Mrs. Rashmi Bajra, Admn. Officer has filed affidavit in evidence on behalf of O.P-1 and Sh. Partiosh Aggarwal, Executive has filed affidavit in evidence on behalf of O.P-2 testifying all the facts as stated in the written statements. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have gone through the written submissions of 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. 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. 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 the date of policy. O.Ps have not led any evidence to prove it.
7. 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.12,130/- with interest @ 6% from the date institution of the complaint till payment, we further award of Rs.3,000/- 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
