O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant had taken a mediclaim policy from the O.P. It is alleged that the policy was renewed from time to time and at the relevant time the policy bearing No.271601/48/2008/3496, Cover Note No.270000413927 for the period from 15.12.2007 to 14.12.2008. It is further alleged that in February, 2008 during the current insurance policy the complainant due to excessive and constant bleeding approached Dr. Neeraj Chopra of Raghav Diagnostic Centre and got ultrasound conducted and when no abnormality was found there was no need for continuation of treatment. It is further alleged that again the said problem was complained in June, 2008 and being a teacher employed with the Govt. of NCT, of Delhi the complainant approached Sunder Lal Jain Hospital, which is on the penal of Govt. Departments for the treatment. It is alleged that the doctors got prepared the report of the diagnosis of the disease of the complainant. It is further alleged that on the night of 18.10.2008 there was heavy bleeding when the complainant was admitted in the Jaipur Golden Hospital and the Emergency report was prepared and she was told that her case will be handled by TPA M/s Vipul Med Corp TPA Pvt. Ltd. and the complainant was advised to contact the said agency instead of the O.P company. It is alleged that the complainant must have been admitted in such Hospital which was approved and empaneled with CGHS but due to the assurance given the complainant was satisfied that she is in such a Hospital which is covered by the insurance company. It is further alleged that there was no privity of contract between the complainant and M/s Vipul Med Crop TPA Pvt. Ltd. yet the complainant was assured that she will be given cashless facilities and the said TPA also did not disclose that the case of the complainant does not fall within the ambit of claim as it is now given to understand to the complainant by the letter under reference. It is alleged that while preparing the report Ms. Shilpa Sharma on account of human error made some corrections, which created suspicion when the complainant was referred to Vipul Med Corp TPA Pvt. Ltd. for cashless facility being an insured person. On their turn the said TPA wrote to the Jaipur Golden Hospital and asked for the prescription for the doctor and original report and to reconfirm the exact duration of complaints of diagnosis and treatment taken on 20.10.2008 when the complainant again felt the same problem and she was admitted in Jaipur Golden Hospital, New Delhi. It is further alleged that the complainant thereafter spent about Rs.70,978/- on her treatment. 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 further alleged that despite repeated visits made by the complainant the claim was not settled. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.70,978/- alongwith interest and also to pay cost and compensation as claimed.
2. O.P appeared and filed the written statement. In its written statement O.P has not disputed that complainant had taken policy referred to above. It is alleged that the complainant had very cleverly not filed the complete policy including the terms and conditions. It is further alleged that the claim of the complainant falls under the exclusion clause No.4.1 of the terms and conditions of the policy. 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-1/10. On the other hand Shri A.K. Goel, 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 submissions of Ld. Counsels for the parties.
5. The main controversy involved in the present case is as to whether the O.P was justified in repudiating the claim submitted by the complainant on the basis of exclusion clause forming part and parcel of terms and conditions of the policy. The case of the complainant is that they were never provided with the terms and conditions of the policy. Admittedly, the complainant has been continuing the policy for the last about four years but at the relevant time there was gap of less than two months for renewal of the policy from 20.10.2006 to 15.12.2006. The O.Ps have mainly repudiation the claim stating that there was no continuity of insurance policy and there being gap of about two months in the last policy, therefore, the policy shall be treated as new policy and the ailment suffered by complainant was excluded for the first 4 years of the continuous policy. Therefore, the issue revolves round the fact as to whether O.P has validly invoked the applicability of terms and conditions. It is now well settled law that terms and conditions to be relied upon by the insurance company should have been furnished to the insured or in the alternative. The insured must be made aware of the said terms and conditions at the time of execution of insurance policy or there should be clear proof of supplying the said terms and conditions to the insured. The aforesaid test is the touchstone for applicability of terms and conditions. As discussed above there is no documentary evidence placed on record by the insurance company as to when and in which manner the terms and conditions were supplied to the insured. Needless to say that terms and conditions do not form part of the policy, rather it is a full-fledged separate document. 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.
6. 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.P cannot take help of the said terms and conditions. Accordingly the repudiation by O.P is held to be unjustified.
7. Keeping in view the discussion above the O.P repudiate the claim on frivolous grounds, therefore, deficiency in service. We award a sum of Rs.70,978/- 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.2,000/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 21st day of December, 2015.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
