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 in the year 2006. It is alleged that the policy was renewed from time to time and at the relevant time the policy bearing No.215201/48/2011/183 for the period from 27.04.2010 to 26.04.2011. It is further alleged that O.P Company has been issuing two pages policy without any its terms and conditions. It is alleged that during the subsistence of the policy for the period from 27.04.2010 to 26.04.2011 the complainant due to sudden pain got herself examined. It is further alleged that complainant was admitted in the Batra Hospital and Medical Research Centre for the treatment of Fibroids. It is alleged that complainant sought the cashless facility as being extended by the O.P company. However, the said facility was denied by the O.P company. It is further alleged that the complainant thereafter spent about Rs.60,000/- on her treatment. It is alleged that complainant after paying the said amount got herself discharged and submitted all the treatment record 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 only after lot of persuasion a letter dated 06.12.2010 was issued by the TPA of the O.P company submitting therein that the claim was not payable as per clause 4.3 (ix) of the policy. It is further alleged that claim has been sent to the concerned office. It is alleged that O.P has not given any claim to the complainant. It is further alleged that despite repeated visits made by the representative of the complainant the claim was not settled. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.60,000/- 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. It is alleged that the aforesaid complaint so made by the complainant under the explained circumstances is not tenable as per the law. It is further alleged that the treatment taken by the complainant for the UTERUS falls under the first two years exclusion but the policy in question was running in first year only. It is alleged that the policy in question was renewed after about more than 7 months of expiry of previous policy, hence, the policy in question will be treated as a fresh policy and there is no provision in the general insurance contract to continue the earlier benefits. It is further alleged that the complainant was duly informed vide letter dated 06.12.2010 sent by the TPA concerned and vide letter dated 13.12.2010 sent by the O.P company that, “this desease falls under first two years exclusion but this policy is running in first year only, hence, this claim stands non-payable under exclusion clause No.4.3 (ix) 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. P-1 to P-7. On the other hand Shri Lalit Kumar Bhall, 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 submissions of Ld. Counsels for the parties.
5. The main controversy existing in the present complaint is repudiation of the mediclaim of the complainant. The record shows that the O.P rejected the mediclaim of the complainant by letter dated 13.12.2010 Annexure OP/B of the ground that complainant was hospitalized as a diagnosed case of Fibroid Uterus surgically and discharge on 01.11.2010 and that as per policy condition this disease falls under first two years exclusion, whereas the policy was running in the first year only and thus the claim should non-payable because of clause No.4.3. It is 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. The insured in the complaint has categorically stated that he was given two page policy without its terms and conditions. Now the onus shifted on O.Ps to substantiate as to how in which manner the said terms and conditions were supplied to the insured. Unfortunately the O.P has not placed on record any cogent evidence in this regard. 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.60,000/- 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.3,000/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 16th day of December, 2015.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
