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 (Happy Family Floater Policy) bearing No.271700/48/2012/2462 valid for the period from 08.02.2012 to 07.02.2013 from the O.P-1. It is alleged that complainant’s daughter namely Shivani Jain had problem in stomach and got admitted in the Hospital three times and discharged after treatment any the complainant lodged three claims with the O.P as under:- i) claim No.100071204804 dated 25.07.2012 amounting to Rs.17,230/-, ii) claim No.100081201431 dated 07.08.2012 amounting to Rs.27,360/- and iii) claim No.100081206692 dated 30.08.2012 amounting to Rs.72,491/-. It is further alleged that against the above three claims the complainant approached to the O.P so many times and after repeated demands, requests and reminders, the complainant received one cheque No.960110 dated 23.11.2012 for Rs.14,112/- against claim No.100071204804 but did not get cheques of two other claims till date. It is alleged that complainant orally requested the O.P-1 to reimburse the above said amount but all in vain. Complainant has also sent a legal notice dated 23.12.2013 but of no avail. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.99,851/- alongwith interest and also to pay cost and compensation as claimed.
2. O.P-1 appeared and filed its written statement. In its written statement O.P-1 has not disputed that complainant had taken policy refer to above. It has also not been disputed that complainant was admitted in Hospital for treatment of stomach. It has also not been disputed that the complainants have filed a claims in respect of the said treatment. It is alleged that the treatment taken from ‘Jain Charitable Hospital by the daughter of the complainant which was process and two queries were raised by the TPA but the complainant miserably failed to comply with the queries till date due to which the claim of the complainant was processed as No-Claim and the complainant was duly informed about the same vide letter dated 15.03.2013 and 31.03.2013. However, the treatment taken from Max Balaji Medical and Diagnostice Research Centre by the daughter of the complainant was presented with diagnosed case of acute GI infection with repeated intestinal colic to R/O intestinal koch’s, report are normal & admitted for diagnostic purpose only, celiac disease is genetic disorder and as per policy terms and conditions it is not payable, cashless was also rejected under reason, liability of the case cannot be ascertain at this juncture”, hence, case was repudiated. Which comes under the definition of “Genetic Disorder” and the claim of the complainant pertains to the treatment as alleged with recurrent infection, hence, under the terms, conditions and exclusions clause 4.10 & 4.15 the claim of the complainant was held to be not payable by the TPA and the complainant was informed accordingly. 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/A to CW-1/T. On the other hand Shri Khem Chand, Divisional Manager has filed affidavit in evidence on behalf of O.P-1 (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 Ld. Counsel for the O.P-1.
5. In this case the complainant had filed three distinct claims of mediclaim policy. The O.P said payment for the first claim to the tune of Rs.14,112/- but did not process the other two claims to the tune of Rs.99,851/-. The ground of repudiation is the exclusion clause relied upon by the insurance company. The exclusion clause No.4.15 of the policy terms and conditions provided that no claim shall be paid for ‘Genetic Disorder and Stem Cell Implantation/ Surgery.’ Now the question arises whether the O.P was justified in repudiating the claim by putting to service exclusion No.4.15. The answer is in the negative. The bear perusal of the policy makes it abundantly clear that the policy shall “pay for hospitalization expenses for medical/ surgical treatment at any Nursing Home/ Hospital in INDIA as an in-patient defined in the policy.” The policy further states that it is subject to ‘conditions, clauses, warranties, endorsements as per forms attached.’ Needless to say that the so called terms and conditions do not find mention in the insurance policy itself, rather it is a full-fledged separate document containing the terms and conditions which obviously was never supplied to the insured at the time of execution of policy. The insurance company has miserably failed to place on record any cogent evidence about supply of terms and conditions to the insured at any point of kind. The complainant has categorically denied that he was ever supplied with the said terms and conditions. The insurance policy cannot takes support of terms and conditions which were never supplied to the insured. 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.
7. Keeping in view the discussion above the O.Ps rejected the claim on whimsical reasons, therefore, deficiency in service. We direct the O.P-1 to pay a sum of Rs.99,851/- to the complainant alongwith interest @ 6% from the date institution of the complaint till payment, the further award of Rs.2,000/- towards harassment mental agony loss of time and Rs.1,000/- 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
