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 was working with O.P-2 as store keeper w.e.f. 19.04.2005 having his employee code No.E/2092. It is alleged that O.P-2 had provided a group medical policy to complainant through the O.P-1 and deducted Rs.1,069/- from the salary of complainant in the month of August 2009 towards group medical policy. It is further alleged that O.P-1 has provided its services/ product i.e. group medical policy to the complainant vide policy No.214300/48/10/1031 for the period from 13.06.2009 to 12.06.2010 through its Noida Branch. On 30.10.2009 the complainant was hospitalized for his ailments i.e. acute dengue fever and malaria in Pushpawati Singhania Research Institute, Sheikh Sarai, New Delhi and discharged from there on 06.11.2009 after his treatment. It is alleged the said hospital has submitted the claim/ bill for treatment for a total sum of Rs.1,42,732/- as same were charged by them for medicines and other charges, but the said claim were rejected by O.P-1, therefore, the complainant was compelled to pay the above said amount to the above said Hospital. It is further alleged that O.Ps have failed to reimburse the claim amount to the above said hospital and arbitrarily rejected the claim and failed to give any reason due to which they have rejected the claim. It is alleged that complainant has also served a legal notice dated 03.12.2010 but to no avail. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.1,42,732/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P-2 did not put an appearance despite service and accordingly it was proceeded ex-parte on 21.11.2011. O.P-1 appeared and filed its 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 exclusion clause 4 read with clause No.4.9 of the insurance policy under the head exclusions:- “the company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all the expenses arising out of any condition directly or indirectly caused by, or associated with Human T-cell Lymphotropic Virus Type III (HTDL-III) or Lymohadinopathy Associated Virus (LAV) or the Mutants Derivative or Variations Deficiency Syndrome or any Syndrome or condition of similar kind commonly referred to as AIDS, HIV and its complications including sexually transmitted diseases.” It is further alleged that under the terms, conditions and exclusion of the policy the claim of the complainant was held to be not payable. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint and has proved documents exhibited as Ex. CW-1/1 to CW-1/23. On the other hand Shri R.K. Sharma, Sr. Divisional Manager has filed affidavit in evidence on behalf of O.P-1 (OIC) 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 submission of Ld. Counsel for the O.P.
5. The dispute between the parties is as to whether the O.P were justified in repudiating the claim of the complainant on the basis of exclusion clause. The plea taken by the O.P is the terms and conditions which formed part of the policy clearly indicate that if the insured being a case of HIV is not been entitled to the medical claim as per exclusion clause 4 read with clause No.4.9 of the insurance policy under the head exclusions which reads as under:- “the company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all the expenses arising out of any condition directly or indirectly caused by, or associated with Human T-cell Lymphotropic Virus Type III (HTDL-III) or Lymohadinopathy Associated Virus (LAV) or the Mutants Derivative or Variations Deficiency Syndrome or any Syndrome or condition of similar kind commonly referred to as AIDS, HIV and its complications including sexually transmitted diseases.” It is true that insured was diagnosed as case of HIV. Now the question arises as to whether the claim was rightly repudiated by the O.P. The answer is in the negative. The insured initially suffered malaria fever and later was diagnosed as patient of HIV. He was also treated of diabetes mellitus. It is now well settled law that insurance company can rely on the terms and conditions of the policy only if the said conditions form part of the policy itself. The insurance company is also under duty to establish that the terms and conditions were duly furnished to the insured. The record shows that there is no mention of the terms and conditions in the policy itself. Rather terms and conditions is a separate full-fledged document which was never furnished/ supplied to the insured. Therefore, the insurance company cannot be permitted to take recourse to so called terms and conditions which were never supplied to the insured. 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 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, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone. Thus the mere fact that it has come in the discharge summary that complainant was a known case of dilated cardiomyopathy since 2000 cannot be turned as a pre-existing disease because such disease can only be detected by the medical expert.
6. Even otherwise the insurance can repudiate the claim only if the pre-existing disease was very much in the knowledge of the insured at the time of taking policy and he clandestinely concealed the said material facts from the insurance company. No such record has been placed by O.P about active concealment of pre-existing disease by insured. Furthermore it is a duty of the insurance company to prove the pre-existing disease of the insured by leading cogent medical evidence but nothing in this regard has been done by the insurance company. Therefore, we are of the opinion that the repudiation of the claim of the insured by O.P was unwarranted and un-justified.
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.1,42,732/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.3,000/- towards harassment mental agony loss of time and Rs.1,500/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 14th day of January, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
