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.121300/48/2011/2558 for the period from 06.06.2010 to 05.06.2011. It is alleged that the policy gives the coverage to the complainant and his wife Mrs. Pushpa Jain. During the covered period aforesaid policy the wife of the complainant Mrs. Pushpa Jain fell ill and got treatment from Sant Parmanand Hospital, Multi Super Speciality as an indoor patient from 03.10.2010 to 08.10.2010. It is further alleged that the complainant thereafter spent about Rs.2,22,600/- on the treatment of his wife. It is alleged that complainant submitted all the relevant documents alongwith bills with the O.P company seeking the reimbursement of the same. It is further alleged that O.P company after the receipt of documents started delaying the settlement of the claim and raising one or the other frivolous plea. It is alleged that despite repeated visits made by the representative of the complainant the claim was not settled. Complainant has also sent a legal notice dated 04.03.2011 but to no avail. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.2,22,600/- alongwith interest and also to pay cost and compensation as claimed.
2. O.Ps appeared and filed the written statement. In its written statement O.P-1 has not disputed that complainant had taken policy refer to above. It is alleged that the disease was developed many years ago while the present policy was taken by the complainant only for the first time and the said disease of joint pains was not a newly arisen disease. The knee replacements advised by the doctors could only occur when the same becomes incurable since long. It is further alleged that the claim of the complainant was thus rightly rejected by the O.P-1 and the same is not covered under the terms and conditions of the mediclaim policy. It is alleged that the mediclaim policy has two basic plans namely Crown Plan and Royal Plan. Crown Plan covers pre-existing disease only after four claim free years whereas in Royal Plan, pre-existing diseases clause is deleted (refer to clause 5.4 of the policy conditions). On the other hand O.P-3 in its written statement stated that the answering O.P has no liability regarding said policy. The complainant has purchased said policy only through the answering O.P, therefore, there is no deficiency of service on the part of answering O.P and hence is not liable for same. Dismissal of the complaint has been prayed for.
3. Complainant has filed her affidavit affirming the facts alleged in the complaint and has proved documents exhibited as Ex. CW-1/1 to CW-1/13. On the other hand Mrs. Ragini Mehrotra, Manager has filed affidavit in evidence on behalf of O.P-1 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 submissions of Ld. Counsels for the parties.
5. The main controversy involved in the present case is as to whether the repudiation by O.P is justified or not. The only ground passed into service by the O.P for rejection of the claim is that there was gap in the continuity of the previous policies and relying on clause 5.4 of the policy conditions, the claim was repudiated. In order to appreciate the stand of the O.P it is relevant to reproduce condition 5.4 of Crown Plan availed by the petitioner which is as under;
“In case the policy is running for the fourth consecutive year and thereafter the claim payable shall be upto 100% of the admissible claim amount. The onus of proving the existence of previous uninterrupted covers from an insurance company will be on the insured and should be provided at the time of inception of this policy. In Royal Plan….
In Crown Plan, Clause No.4.1 of exclusion of pre-existing disease applies in policy terms but this exclusion will be deleted after four consecutive claim free policy years provided there was no hospitalization for the pre-existing disease/ ailment/ condition/ injury during the said four years if it is renewed with our company. Except in Royal Plan, this exclusion will also apply to any complications arising from pre-existing ailment/ disease/ injuries. Such complications will be considered as a part of the pre-existing health condition or disease.”
The bear perusal of the aforesaid condition makes it crystal clear that claim shall be not payable unless the policy in the fourth year is in uninterrupted phase. However, according to O.P the last policy i.e. effective from 06.06.2010 to 05.06.2011 had a gap because the previous policy ended on 23.05.2010. The claim of the complainant on the other hand is there has been complete continuity of all the insurance policies because complainant had make payment on 18.05.2010 but the O.P issued policy only on 06.06.2010. He has also contended that the terms and conditions which are now relied upon by O.P were never furnished to him at the time execution of the policy or thereafter. Counsel for complainant has also relied upon authorities reported as New India Assurance Co. Ltd. Vs Arun Krishan Puri, III (2009) CPJ 6 (NC) and United India Insurance Co. Ltd. Vs Manoj Kumar S. Sheth, II (2003) CPJ 455.
6. The record of the case would show that the policy in question i.e. on 06.06.2010 to 05.06.2011 clearly mentioned the number of previous policy with expiry date i.e. on 23.05.2010. There is also mentioned in the said policy (insurance without break since from 1 year) which means that insurer admitted that the insurance policy of complainant was in continuity for the last 1 year. Apart from this clause 5.4 relied upon by the O.P for rejection of claim of the complainant shows that for running of the fourth consecutive year, the complainant shall be entitled to 100% of the admissible claim amount and the onus of proving the existence of previous uninterrupted covers would be on the insured and should be provided at the time of the inception of this policy. It means that the insured shall be duty-bound to provide the detail of all the previous insurance policies at the time of execution of policy in question. It would further show that O.P must have seen all the previous policies of complainant and that despite little gap between the 3rd and 4th policy, the O.P ventured to issue the present policy and subsequently took shelter under clause 5.4 for repudiation. It has also come on record that the terms and conditions of the policy were never supplied to the complainant. Now it is to be seen whether the O.P can all of a sudden use the terms and conditions as shelter which were never supplied to the complainant. In case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. In another case titled III (2009) CPJ 246 (NC) United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr., it was held that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the terms and conditions of the insurance policy were not supplied to the complainant, it was neither aware of the exclusions, nor was bound by the same.
7. In view of the aforesaid discussion and circumstances of the case, we are of the considered view that the complainant was never supplied with the terms and conditions of the policy. Hence, the O.Ps cannot take help of the said terms and conditions. Accordingly the repudiation by O.P is held to be unjustified.
8. 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.2,22,600/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.10,000/- 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.
Announced this 24th day of February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
