O R D E R
K.S. MOHI, PRESIDENT
The complainants have 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 No.1 had taken a mediclaim policy bearing No.272500/48/2011/590 for the period from 11.06.2010 to 10.06.2011 which was renewed vide policy bearing No.272500/48/2012/758 for the period from 11.06.2011 to midnight of 10.06.2012. The complainant paid requisite premium for sum insured of Rs.2,00,000/-. The policy covered herself, her husband and her son and also paid Rs.6,455/- as premium to O.P No.1. On 20.03.2012 husband of the complainant suffered health problem i.e. Disc problem (as per the diagnosis of Hospital) and was admitted in Santom Hospital, Prashant Vihar, Outer Ring Road, Rohini, Delhi. It is alleged that intimation was also given to M/s Park Mediclaim Consultants Pvt. Ltd. i.e. O.P-2 for cashless treatment in Hospital however the O.P-2 sent a letter dated 21.03.2012 to Hospital whereby denied to provide the cashless medical treatment and further suggested the complainant No.2 to submit all the documents of treatment and expenses paid for the same after discharge from the Hospital. It is also alleged that after due treatment on 22.03.2012 the complainant No.2 was discharged from the hospital and he paid Rs.21,100/- as hospital expenses and Rs.3,996/- and Rs.338/- as medicine expenses. It is further alleged that after discharge from the hospital, complainant approached O.P-1 and O.P-2 for reimbursement of the expenses incurred on the aforesaid medical treatment. Complainants also sent a letter dated 26.03.2012 along with all the documents pertaining to treatment and bills for treatment expenses to both the O.Ps as per direction in earlier letter dated 21.03.2012 of O.P-2. It is alleged that complainants received a letter dated 12.04.2012 from the O.P-1 whereby assured that complainant will get the proper reply from the policy issuing office however, till date no reply has been given by the O.P-1 and O.P-2. On these facts complainants pray that O.Ps be directed to pay the mediclaim amount of Rs.25,434/- with interest @ 18% p.a. and also t pay cost and compensation as claimed.
2. O.Ps appeared and filed their written statement. In its written statement, O.Ps have not disputed that complainants had taken policy refer to above. It has also not been disputed that Sh. Narender Garg, husband of the complainant was admitted in Hospital where he remained admitted for treatment of Disc problem for the period from 20.03.2012 to 22.03.2012. It has also not been disputed that the complainants have filed a claim in respect of the said treatment. However, its case is that the disease viz. disc problem is excluded disease during the first two years of the operation of the mediclaim policy under exclusion clause No.4.3 of a mediclaim and therefore, the claim is not admissible for the said disease. It is alleged that as per record the complainant got the aforesaid disease during the first year of the policy. It is also alleged that the mediclaim policy No.272500/48/2012/758 was obtained from the O.P w.e.f. 11.06.2011 but in view of the submission stated above the complainant is not entitled to claim the alleged amount. It is alleged that under these circumstances as stated above the TPA rightly repudiated the claim of the complainant invoking clause 4.3 of the terms and condition of the mediclaim policy. It is also alleged that there is no deficiency at all in service in terms of the provision of the Consumer Protection Act on the part of the O.Ps. Dismissal of the complaint has been prayed for.
3. Complainant No.2 has filed his affidavit affirming the facts alleged in the complaint. He has also proved documents exhibited as Ex. CW-1/A to CW-1/I. On the other hand Shri Chander Shekhar, 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 submission of Ld. Counsels for the parties.
5. The real controversy in this matter is as to whether the illness suffered by the complainant was outside the purview of the terms and conditions of the policy. Thus it would be appropriate to discuss the terms and conditions of the contract of insurance entered into between the parties. It would not be out of place to mention here that execution of the policy is not disputed. The complainant insisted that it has come in the policy that the O.P shall “pay for hospitalization expenses for medical/ surgical treatment at any Nursing Home/ Hospital in INDIA as an in-patient defined in the policy.” But there is another clause just above the aforesaid clause to the effect that the insurance under this policy is subject to conditions, clauses, warranties, endorsements as per forms attached. The case of the insurance on the other hand is that the terms and condition appended with the policy are also part and parcel of the policy entered into by the insured. The counsel for O.P drew my attention towards clause 4.3 which reads as under:-
“The expenses on treatment of following ailment/ diseases/ surgeries for the specified periods are not payable if contracted and/ or manifested during the currency of the policy. Sub-Clause XX Surgery for prolapsed inter vertebral disk unless arising from accident for 2 years.”
6. Admittedly the policy was taken on 11.06.2010 and husband of the complainant suffered Disc problem on 23.03.2012 meaning thereby the patient suffered aforesaid illness before expiry of two years of the insurance policy. The perusal of clause 4.3 sub clause XX makes it crystal clear that the complainant shall not be entitled to the insurance claim, if he suffered the particle diseases i.e. surgery of Disc within two years operation of insurance policy.
7. The counsel of the complainant in support of the submission drew our attention towards authority reported as B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. II (1996) CPJ 28 (SC), wherein court observed that exclusion clause was not applicable to the accident of insured vehicle where driver instead of 6 passengers allowed 9 passengers to travel in the goods vehicle. The court held the addition of the more passengers would not be construed to have breached the condition of the policy. The aforesaid authority obviously is not applicable to the matter in issue. On the other hand counsel for the O.P has relied upon an authority reported as Export Credit Guarntee Corpn. Of India Ltd. Vs. Garg Sons International 2013 STPL (Web) 36 SC, wherein the Hon’ble Supreme Court has held that it is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance and it is not open for the court to add, delete or substitute any word. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavor of the court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s/ Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd., (2010)10 SCC 567).
8. The insured cannot claim anything more than what is covered by the insurance policy. “…the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely.” The clauses of an insurance policy have to be read as they are…Consequently, the terms of the insurance policy, that fix the responsibility of the insurance company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reasons that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide: Oriental Insurance Co. ltd. Vs. Sony Cheriyan AIR 1999 SC 3252; Polymat India Pvt. Ltd. Vs. National Insurance Co. Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. Vs. Oil & Natural Gas Company, AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. Vs. M/s Dewan Chand Ram Saran AIR 2012 SC 2829).
In Vikaram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. AIR 2009 SC 2493, it was held:
“An insurance contract is a species of commercial transactions and must be construed like any other contract to its own terms and by itself.”
(See also: Sikka Papers Ltd. Vs. National Insurance Co. Ltd. & Ors. AIR 2009 SC 2834).
9. We have considered the submissions of the counsels for parties and have also perused the record.
10. There is no gainsaying that the terms and conditions of the insurance policy should be construed and interpreted in a strict sense as held by Hon’ble Supreme Court in Export Credit Guarantee Corpn. Of India Ltd. (Supra). However, at the same time it has to be substantiated that the terms and conditions of the policy including the exclusion clause relied upon by the insurance company, were clearly conveyed/ furnished to the insured. In the instant case the insurance policy does not find mentioned the details of terms and condition including the exclusion clause. The terms and conditions appear to be a separate document which obviously was never conveyed to the insurer. The insurance company has not placed on record any reliable evidence as to when and in which manner the said terms and condition were supplied/ conveyed to the insurer. 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. Thus relying upon the aforesaid authority, this forum is of the considered view that the insurance company whimsically refuted the claim of complainant. Therefore, the forum direct the O.Ps to pay a sum of Rs.25,434/- along with interest @ 6% from the date of filing the complaint till realization. We also award compensation of Rs.3,000/- towards mental and physically harassment suffered by the complainant and Rs.1,500/- towards litigation costs.
Copy of this order be sent to the parties as per rules.
Announced this 7th day of December, 2015.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
