ORDER                                        Dated:  24.08.2017

Sh. K.S. Mohi, President

1.  The complainants have filed the present complaint on 29.10.2015 U/s 12 of the Consumer Protection Act, 1986 .  The facts as alleged in the complaint that the deceased husband of the complainant no. 1 had taken a happy family floater policy  -silver policy bearing no. 252108/48/2014/1359 valid from 28-03-2014 to 27-03-2015 from OP1.  The  deceased  (husband of complainant no. 1 ) felt lower abdominal pain and was admitted at Pushpanjali Medical Center and was again  admitted in hospital from 04.09.2014 to 10.09.2014 and discharged on 10.09.2014 and  a total expense of Rs. 1,10,931/-  was incurred for the treatment in hospital. At the time of discharge complainant further deposited a sum of Rs. 47,600/-. Complainant’s deceased husband submitted the claim forms along with necessary document to OP2 for reimbursement of  the amount of Rs. 1,10,931/- however the claim was rejected by OP1  under clause 4.8  of the policy. It has been further alleged that Dr. Neeraj Jain, the treating doctor of the deceased  has mentioned in his report that the deceased had been taking some alcohol and that too he left 4 to 5 months back before he being admitted to the hospital for treatment and also mentioned that in April 2013, the deceased was suffering from jaundice and according to the report of the jaundice test, the liver of the deceased was perfectly working and reports of Hepatitis B and C also come negative thereby showing that there was no effect of occasional alcohol. The   complainants have therefore   claimed mediclaim of Rs. 1,10,931/-  as the cost of the treatment   with interest  , Rs. 2,500/- as cost of visiting expenses and Rs. 25,000/-  as compensation for mental agony.
2. Notice was served to OPs. As nobody appeared on behalf of the OP2 , OP2 was proceeded with ex-parte on 15-12-2016.
3.  OP1 filed reply taking preliminary objections inter-alia  that  there was no deficiency in service on its part  the  complainant no.1 concealed the second discharge summary of the hospital which clearly states that the deceased (Mr. Mukesh Gupta) was admitted as a case of chronic liver disease resulted by consuming alcohol regularly. Infact , the claim of the complainant falls under exclusion clause 4.8 of terms and conditions which clearly stipulates that “Convalescence, general debility, “run down” condition or rest cure, congenital external and internal disease or defects or anomalies , sterility , any fertility , sub fertility or assisted conception procedure, veneral disease, intentional self-injury / suicide , all psychiatric and psychosomatic disorders and / or use, misuse or abuse of drugs/ alcohol or use of intoxicating substances or such abuse or addiction etc.”. Hence the claim of the insured (deceased) was not payable. OP1 prayed for dismissal of the complaint.
4. Complainant no.1 has filed her own affidavit affirming the facts alleged in the complaint. On the other hand, Sh. M.K.Sharma , Deputy  Manager,  has filed affidavit in evidence on behalf of O.P. 1testifying all the facts as stated in the written statement. Complainant and OP1 have also filed their respective written submissions.
5. We have carefully gone through the record of the case as well as written submissions filed by the parties and have also heard the submissions of Ld. Counsel  for the parties.
6.  The controversy in the present complaint revolves around the issue as to whether  the repudiation of claim of complainant was justified or not? OP1 rejected the claim on the basis of concealment of second discharge summary of the hospital in which Dr. Neeraj Jain had categorically admitted that the deceased was a case of CLD (alcohol related ) the CLD stands for chronic liver disease alcohol and therefore as per clause 4.8 of terms and conditions of the policy , the claim was not payable for the disease occurred because of consumption of high degree of alcohol.  The repudiation by the insurance company (OP1) on the aforesaid counts appears to be fallacious and unwarranted. Firstly, there is no mention in the discharge summary that CLD was  because of consumption of alcohol regularly.   The literature placed on record by complainant clearly indicates that alcohol is not the cause of liver damage and there are other factors which can harm to the liver. Secondly, clause 4.8 of the insurance policy does not appear to be incorporated in the insurance policy rather it is mentioned in a separate full fledged document cleverly shown as “terms and conditions” of the policy. It is well settled law unless the terms and conditions are mentioned in the insurance policy itself insurance company cannot have recourse to the same or if the said terms and conditions are mentioned in a separate brochure the same should have been supplied to the insured at the time of inception of the policy. In this case the OP1  has not filed any document to show that the said terms and conditions were ever supplied to the insured.  The OP1  appears to be under misconception  to label the claim of the complainant as a pre-existing disease. It needs to be clarified that preexisting disease is one which was existing just at the time of taking the policy or for which the insured had taken medical treatment or had undergone surgery immediately before inception of the policy.
7. Keeping the discussion stated above  we are of the considered view that OP has committed deficiency in service by not paying the legitimate claim of the complainant we therefore award a sum of Rs. 1,10,931/- with interest @ 9% p.a.  from the date of institution of this complaint till realization. Complainant is further awarded compensation of Rs. 10,000/- towards harassment which also includes cost of litigation.
8. The OP1 shall comply the order within 30 days from the date of receipt of this order failing which interest @ 10% shall be payable on the entire above mentioned amount from the date of this order till realization.

 Copy of this order be sent to the parties as per rules. File be consigned to record room.

                   Announced this ___________day of __________2017.