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 bearing No.215402/48/2014/3039 for the period from 14.03.2014 to 13.03.2015. It is alleged that complainant was feeling uneasiness with severe pain in upper abdomen when he was taken to Max Super Speciality Hospital on 25.01.2015 when various test were performed on him by the said hospital and complainant was diagnosed as Acute Interstitial Pancreatitis Sepsis. It is further alleged that the complainant was admitted in ICU by Hospital with provisional diagnosis of Acute Pancreatitis without any pas history of similar complaints and complainant remained in the hospital w.e.f. 25.01.2015 to 10.02.2015 where he was treated by the doctors as per the discharge summary of the hospital. It is alleged that complainant spent a sum of Rs.4,06,440/- on his treatment. It is further alleged that intimation about the admission of the complainant was lodged immediately to the O.P through hospital and O.P was requested to register the claim and to authorize the hospital for the claim expenses of the complainant. It is alleged that the TPA of O.P rejected the cashless facility to the hospital/ complainant. It is further alleged that complainant submitted all the relevant documents alongwith bills with the O.P company seeking the reimbursement of the same. It is alleged that to the utter surprise of the complainant, O.P repudiated the claim by letter dated 09.03.2015 and 13.04.2015 under exclusion clause 4.8 of policy whereas no such clause was supplied to complainant with the policy. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.4,06,440/- 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 refer to above. In its written statement O.P has stated that complaint is not maintainable and is liable to be dismissed as the same is beyond the purview of insurance contract since the disease for which treatment was taken as per the discharge summary of hospital was not covered under the policy on account of exclusion clauses 4.08 of the insurance policy issued to the complainant. It is alleged that the disease was not covered as per the records available with the O.P and on account of exclusion clauses 4.8 of the insurance policy and especially the undertaking/ declaration being singed by the person while entering into the contract with the O.Ps, the claim of the complainant was repudiated as Not Payable vide letter dated 09.03.2015 by answering O.P as per recommendation of TPA. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit affirming the facts alleged in the complaint. On the other hand Mr. Umesh Mehta, Sr. Dvisional Manager has filed affidavit in evidence on behalf of O.P 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 complainant and Ld. Counsel for the O.P.
5. The O.P repudiated the claim filed by the complainant on the basis of report of Dr. Vipin Gupta. The contents of repudiation letter dated 09.03.2015 are reproduced herein below;
“SINCE THE PRESENT AILMENT IS DUE TO ALCOHOLISM AND POSITIVE HISTORY AND DOCUMENTATIONS CONFIRM THE SAME.” HENCE PRESENT CLAIM FALLING UNDER EXCLUSION CLAUSE 4.8 OF MEDICLAIM POLICY. THEREFORE, THE CLAIM IS BEING DENEID AND SAME IS NOT PAYABLY.”
The aforesaid repudiation letter makes it clear that while relying upon the exclusion clause 4.8 of mediclaim policy, the claim was rejected. The counsel for complainant on the other hand vehemently stressed that complainant was not a case of alcoholism and drew my attention towards letter of Dr. Rohit Goyal of Max Health Care Hospital, who reported that complainant was under his treatment for Acute Pancreatitis and it was case of idiopathic and there was no history of alcohol. Now difficulty arises as to which medical report of the doctor should be acted upon to decide the claim of complainant. So far as the report given by Dr. Vipin Gupta on behalf of O.P is concerned it is only based on the medical documents and he has not filed any medical material to indicate that Pancreatitis happens only in case of high alcoholism whereas the positive evidence of Dr. Rohit Goyal who treated the patient as O.P.D contradicts the opinion of Dr. Vipin Gupta. We are of the opinion that report of Dr. Rohit Goyal being treating doctor of the insured is believable and thus is acted upon. Besides this the O.P cannot be permitted to press into service the exclusion clause 4.8 because the said terms and conditions admittedly were never supplied to the complainant at the time of execution of the policy. It is now well settled law that the insurance policy can take shelter of the terms and conditions including the exclusion clause only when the said conditions are duly furnished to the insured. It has also come on record that the terms and conditions of the policy 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.
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.4,06,440/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.5,000/- 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 04th day of March, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
