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 23.02.2014 to 22.06.2014 vide policy bearing No.212700/48/2014/3262. It is alleged that the proposal form was submitted by the complainant with all formalities required by the O.P. which received the premium amount of Rs.5,262/-. The aforesaid policy coverage, inter-alia was medical expenses i.e. reimbursement of medical expenses of insured person during the period of insurance to the tune of US $50,000/-. It is further alleged that the complainant left New Delhi on 23.02.2014 at 12:55 PM and arrived Sydney (Australia) on 24.02.2014 at 10:45 AM. On 01.03.2014 complainant felt heaviness in chest and breathing difficulty and was admitted in Westmead NSW 2145. It is alleged that the complainant was treated in the said Hospital where a drug eluting stent was implanted in one coronary artery of the complainant on 02.03.2014 and was discharge on 05.03.2014. It is alleged that complainant incurred a total sum of Australian Dollar $20,355.43 on his medical expenses. It is further alleged that the complainant submitted all the original medical Hospital bills etc. with the O.Ps to reimbursement of the claim which was paid by the complainant for his treatment. It is alleged that O.Ps have not given any claim to the complainant. It is further alleged that complainant orally requested the O.Ps and also wrote a representation and emails to the O.Ps to reimburse the claim amount but of no avail. Complainant has also sent a legal notice dated 14.10.2014 but all in vain. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount Australian Dollars $20,355.43 equivalent to Rs.11,60,260/- 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 there is a breach of overseas mediclaim policy condition No.10B & C which clearly stipulate that pre-existing disease is excluded for which the insured person has sought medical treatment in the preceding 12 months prior to the commencement of the travel. It is further alleged that the complainant was “known case of Hypertension 10 years on treatment, had syncopal attack once in Jan.2012, was diagnosed LBB, high AB block was given DDDR implant (pacemaker).” It is alleged that the complainant was having a pre-existing disease which is not covered under the terms and conditions mentioned above of the overseas mediclaim policy. 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 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 Rajender Kumar, 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. In this case the controversy existing between parties is as to whether the O.P is justified in repudiating the claim of the complainant on the basis of exclusion clause pertaining to pre-exiting disease. The complainant has categorically stated in the complaint that at the time of execution of insurance policy he had vividly disclosed each and everything regarding his physical conditions which find mentioned in the policy itself to the effect “known case of Hypertension 10 years on treatment, had syncopal attack once in Jan.2012, was diagnosed LBB, high AB block was given DDDR implant (pacemaker)” and as such the O.P were well aware of physical conditions of the insured and now it doesn’t lie in their mouth to repudiate the claim. The O.P on the other hand maintained that insurance policy is subject to certain terms and conditions which are bound to be adhered to by the insured and would be operated at the time of assessment of claim of the insured. The repudiation appears to have been effected by the O.P relying upon clause 10 (b) and 10 (c) which relate to Pre-existing diseases. The question now arises as to whether the insurance was justified in relying upon the exclusion clauses particularly when the insured had disclosed about his physical conditions in the policy itself at the time of taking policy. Needless to say the insurance company has not placed on record any disclosure/ proposal form alleged to have been executed by the insured. However, the disclosure of insured about his health conditions in the policy itself is a clear cut proof of bonafide of the insured. The insurance policy appears to have repudiated the claim on incorrect and flimsy ground.
6. It is a well settled law that where medical claim is sought by the insured the terms and conditions of the policy will automatically come into play and would decide the real controversy existing between the parties. However, the O.P has taken the shield to evade the claim under the so called terms and conditions which do not form part of the policy but it is a separate document which was never furnished to the insured at the time of execution of the policy. Therefore, the O.P was unjustified in rejecting the claim of insured on the basis of terms and conditions which were never supplied to him. 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. In another 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.
7. Keeping in view the statement discussion above the plea of insurance fails on two counts one there is a clear disclosure of health conditions by the insured in the policy itself. Secondly, the terms and conditions were never supplied to the insured. Thus it is a case of deficiency in service. We direct the O.P to pay Australian Dollars $20,355.43 equivalent to Rs.11,60,260/- with interest @ 6% from the date institution of the complaint till payment. We further award of Rs.5,000/- 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 08th day of January, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
