Delhi

West Delhi

CC/08/806

MADHU KAPOOR - Complainant(s)

Versus

NATIONAL INSURANCE - Opp.Party(s)

21 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST)

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

CASE NO. 806/08

Madhu Kapoor     W/o Arum Kumar Kapoor              R/o BN-21, East Shalimar Bagh,    Delhi-110088                                                               …….. Complainant

VERSUS

National Insurance Co.   Through  Senior Division Manager,     Division No.8, First  Floor,   Pooja  House, C-3,   Community  Center    Karmpura, New Delhi                                                  ....…. Opposite Party

       

O R D E R

 

 

K.S. MOHI, PRESIDENT

 

The complainant has filed the present complaint against the O.P under section 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that the complainant is beneficiary of  Medical Insurance Policy bearing No. 360300/48/05/8500001137 for a sum of Rs. 1,50,000/- for the period  from 30.09.2005 to 29.09.2006 the aforesaid  policy was  taken by husband  of the complainant  for himself  and his wife i.e.  the complainant.   It is stated that  the complainant  was admitted in Delhi Heart and Lungs Institute with  symptom of sever Hemoptysues.  Hospital authorities forwarded the request of complainant to OP with the request  for approval of claim upon which OP approved a sum of Rs. 75000/- for treatment  of the complainant.   The complainant  remained admitted in the hospital  from  28.02.2006 to 09.03.2006  and  at the  time of discharging  a sum of Rs.1,42,589/-  was given to the complainant. After deduction the advance amount of Rs. 1,75,000/- a  sum of Rs. 32,411/- was refunded to the complainant.  It is crystal clear that a sum of Rs. 75,000/- received by the hospital from OP.  However the respondent has refused to pay sum of Rs.75,000/- towards medical bills.  The complainant learned and was shocked to know that the approval/ sanction of Rs.75,000/-  for medical treatment  of complainant  stood withdrawn by OP  without any  intimation.  Therefore, the husband of the complainant was forced to make payment of outstanding 1amount of Rs.75,000/- to the hospital. The complainant  has claimed insured sum of  Rs. 1,50,000/- with compensation  of Rs.50,000/-  for harassment  and medical expenses.   

2.     The OP  filed  written submission taking preliminary objection  that no cause of action has arisen against  the OP to file the present complaint rather the claim filed by complainant was rejected on the basis of clause 4.1. of terms and conditions of the  Insurance Policy  which provides that company  shall not be liable to make payment in respect of pre existing  disease in the instant case the complainant suffered from a pre existing  disease  for which he was duty bound to inform the OP in the Declaration Form  thus  the complainant  concealed material facts at the time of  insurance of policy, therefore the claim was rightly repudiated by the OP. 

3.     Complainant has filed her affidavit in evidence testifying all the facts stated in the complaint along with  documents exhibit CW-1/1 to CW- 1/7.

 

On the other hand Sh. Ajay Kumar Jain Investigator  of National  Insurance  Co.  Ltd.  has filed his affidavit in evidence on behalf  of  O.P.  Written submissions have also been filed by both the parties.

4.     We have heard  Counsel for parties  and perused the record.

5.     The controversy in the present case  is as to whether    complainant is entitled to the  claim amount or not.  The factual position is not in dispute  OP categorically admitted  the issuance  of policy in the present case also a treatment  given to the complainant and the period of admission is also not in dispute.  The only issue raised by the OP is that complainant was suffering from pre-existing disease at the time of issuance of policy,  therefore, her claim was hit by clause  4.1.  of terms and conditions.  First of all  we need to clarify  that the terms  and conditions being relied  upon by the  OP should form part and parcel of the Insurance policy but in the present case terms and condition is a separate full-fledged document which was intentionally kept under wraps by OP so as to  press into service  only when the claim shall be filed before it.  It is now  well settled law that  terms and conditions of  contract  cannot be pressed  into service unless and until the same are duly supplied to the insured at the time  of inception of contract of insurance.  Perhaps this condition has not been complied with  by OP. Apart from this the plea taken by OP as to the  pre existing disease  having been  suffered  by complainant does not hold water, firstly, because  no declaration form  has been placed on record  by the OP not  any medical record   has been submitted  for perusal by the Forum  whereby the complainant had received prior medical treatment for  the same illness .  It is now the well settled proportion of law that every disease can not be construed as pre  existing disease. Our Hon’ble State Commission in case titled National Insurance Co. Ltd.  Vs  Smt. Krishna Avtar Aggarwal II (2005) CPJ 747,  held as under:

“Insurance- Mediclaim policy- Repudiation of claim- Concealment of pre-existing disease alleged- Complaint allowed by Forum- Hence appeal- Non-disclosure of disease for which insured was treated 15/ 20 years before, not amounts to concealment- Word ‘existing’ means disease which exists at time of taking the policy- O.P. should have ensured that person in whose favour policy was being given was entitled to same or not- Contributory negligence on part of O.P. cannot be ruled out- O.P. liable under policy- Order of Forum upheld.”

 

Therefore, it conveys that pre-existing disease would be one which was suffered by the insured soon before taking the policy and for which the complainant was hospitalized or has undergone surgery in the hospital.  Even otherwise a duty is cast upon O.P to establish pre-existing disease by leading cogent medical evidence that insured was having pre-existing disease.  No evidence has been placed on record by O.P in this regard.

6.     Keeping in view the circumstances and reasons stated above,  we are of the opinion that the repudiation of claim of the complainant was highly unjustified, unwarranted and unfounded, therefore, it amounted to deficiency in service on the part of O.P.  Therefore, we award a sum of Rs. 75,000/- with interest @ 6% p.a. from the date institution of the complaint till payment.  We further award a sum of Rs.20,000/- 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.

   File be consigned to the record room. 

  Announced this___21^th  ___ day of __August_______ 2018.

 

                                                                                                                       ( K.S. MOHI )                                                    (PUNEET LAMBA)                                                                                      PRESIDENT     

                  MEMBER