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 for the period from 14.02.2012 to 13.02.2013 vide policy bearing No.212700/48/2012/3004 for a sum insured/ basic cover insured of Rs.3,00,000/-. It is alleged that as per the said insurance policy the father of the complainant Sh. Kuljeet Singh Bhatia was also insured being dependent of the insurer/ complainant along with other relevant insurance benefits, as applicable. On 02.07.2007 complainant’s father Sh. Kuljeet Singh Bhatia suffered with some health problem i.e. hearth trouble and was admitted in National Hearth Institute at 49-50, Community Centre, East of Kailash, New Delhi, wherein father of the complainant was diagnosed with CORONARY ARTERY DISEASE and accordingly on 04.01.2013 was operated for “Coronary Artery Bypass Grafting at the National Heart Institute as advised by the concerned doctors and was discharge on 11.01.2013. It is alleged that complainant incurred a total sum of Rs.1,94,321/-, the bills raised by the said Hospital for treatment. It is further alleged that the complainant submitted all the original medical Hospital bills etc. with the O.P to reimbursement of the said amount which was paid by the complainant for treatment. It is alleged that O.P have not given any claim to the complainant. It is further alleged that complainant orally requested the O.P and also wrote number of letters to the O.P to reimburse the above said amount but of no avail. Complainant has also sent a legal notice dated 07.05.2013 but all in vain. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.1,94,321/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P appeared and filed its written statement. In its written statement O.P has not disputed that complainant had taken policy refer to above. It is alleged that the said policy was subject to conditions, clauses, warranties and endorsement and the claim of the complainant is not payable under the exclusion clause 4.1 and 4.3 of the terms and conditions of the policy. It is further alleged that this exclusion will also apply to any complications arising from pre-existing ailments/ diseases/ injuries. It is 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’s have filed his affidavit affirming the facts alleged in the complaint. On the other hand Shri Rajiv Gupta, Sr. Divisional Manager has filed affidavit in evidence on behalf of O.P (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 complainant and Ld. Counsel for the O.P.
5. The main controversy involved in the present case is as to whether the repudiation by the O.P on the ground of pre-existing disease was justified or not. It has come on record that O.P while relying on exclusion clause 4.1 and 4.3 repudiated the claim. Both the conditions stated above are reproduced as under;
Clause 4.1
“As per the clause 4.1 pre-existing health condition or disease or ailment/ injuries, any ailment/ disease/ injuries/ health condition which are pre-existing (treated/ untreated, declared/ not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person up to 4 years of this policy being in force continuously.”
Clause 4.3
“As per the clause 4.3 during the period of insurance cover, the expenses on treatment of following ailment/ disease/ surgeries for specified periods are not payable if contracted and/ or manifested during currency of the policy, if these are pre-existing at the time of proposal the exclusion No.4.1 for pre-existing condition shall be applicable in such cases.
The counsel for the O.P also cited 1966 ACJ, 267 The General Assurance Society Ltd. Vs Chandmull Jain and Another and submitted that when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy between the parties. He further submitted that where the contract to insure or issue a policy of fire insurance does not specify the terms and conditions of the policy, it is a general rule that the parties will be presumed to have contemplated a form of policy containing such conditions and limitations as are usual in such cases. The counsel for the complainant on the other hand submitted that the insurance company cannot repudiate the claim on the basis of pre-existing disease and also were relying on the exclusion clauses of terms and conditions of the policy which, in fact, were never furnished to the insured at the time of creating the contract. It is true that the clause 4.1 and 4.3 were never supplied to the insured. The observation made by Hon’ble Supreme Court in the case The General Assurance Society Ltd. Vs Chandmull Jain and Another (Supra) is not applicable to the present case.
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 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.
7. Keeping in view the discussion above the O.P repudiated the claim on frivolous grounds, therefore, deficiency in service. We award a sum of Rs.1,94,321/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.6,000/- towards harassment mental agony loss of time which will also include litigation expenses.
Copy of this order be sent to the parties as per rules.
Announced this 2nd day of February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
