ORDER
Dr. V. K. DABAS, MEMBER
The case of the complainant is that he had subscribed to mediclaim policy (Happy Family floater Schme) policy from Oriental Insurance Company Ltd on 22-7-2013 which was effective from 18.8.2013 to 17.8.2014. It is alleged that wife of the complainant fell ill and was admitted on 22.2.2014 with complaint of
Acute Severe Headache and Vertigo in Pentamed Hospital , Gujrawalan Town, Delhi-110009 and was discharged on 25.2.2014. He had incurred a sum of Rs. 56699/- as expenses on the treatment. He had filed a claim with OP1 for the reimbursement which was repudiated vide letter dated 13.6.2014. It is alleged by the complainant that the repudiation of the claim was arbitrary and with malafide intention. Hence, this complaint.
OP1 has contested the complaint and has filed a written statement. In the written statement, it has denied any deficiency in service on its part and has justified the repudiation of the claim on the plea that it was in accordance with the terms and conditions of the insurance policy. Para4 of the preliminary objections of the written statement is relevant for the purpose of disposal of this complaint and is reproduced as under:-
4.That the complainant has not come before this Hon’ble Forum with clean hands and has concealed and suppressed the true and material facts from this Hon’ble Forum. It is submitted that the patient namely Mrs. Nirdesh Tyagi was admitted as a Lumber DISC Prolapse with Thecal SAC compression. During hospitalization, MRI was done and the changes seen in MRI report are not of sudden onset. Since, the changes seen in MRI report are not of sudden onset and the policy being in first. year with oriental insurance co. ltd, the claim is not admissible under clause 4.1 of the policy. The Answering Respondent has carefully considered the claim andfound it falling within the specific exclusion of the policy and hence, the liability of the claim was denied. The copy of letter of TPA and MRI Report of Saral Diagnostics are enclosed herewith as Annexure- R‘2 & R3’. The complainttherefore does not lie within the provisions of the Consumer Protection Act, 1986and the same merits to be dismissed for this reason alone. It is submitted that thecomplainant has very cleverly not filed the policy terms and conditions. A copy of the said policy along with the terms and conditions as issued to the complainantand complainant has filed only insurance policy on court record. It is further submitted that the claim of the complainant lies under the exclusion clause no.4.l of the terms and conditions. of the policy,
The exclusion clause is read as under:
4. Exclusions
The Company shall not be liable to make payment under this policy in respect of any eXpenses whatsoever incurred by any insured person in connection with or in respect of:
4.1 Pre-existing health condition or disease or ailment / injuries : Any ailment/disease injuries / health condition which are pre-existing (treated luntreated, declared / not declared in the Proposal Form), when the cover incept for the first time are excluded upto 4 Years of this policy being in force continuously. This exclusion will also apply to any complications arising from pre-existing ailments / diseases / injuries.
OP1 has contested the complaint on merits and has prayed that the complaint is liable to be dismissed on merit.
We have heard arguments advanced at the bar and have perused the record.
The sole question for consideration before us is whether OP1 was justified in repudiating the claim lodged by the complainant. OP1 has contended that the claim is not payable as per exclusion clause no. 4.1 of the terms and condition of the policy of Insurance purchased by the complainant. The relevant portion of clause 4.1 of terms and conditions of the policy is reproduced as under:
4.1 Pre-existing health condition or disease or ailment / injuries : Any ailment/disease injuries / health condition which are pre-existing (treated luntreated, declared / not declared in the Proposal Form), when the cover incept for the first time are excluded upto 4 Years of this policy being in force continuously. This exclusion will also apply to any complications arising from pre-existing ailments / diseases / injuries.
For the purpose of applying this condition, the date of inception of this mediclaim policy taken from Oriental Insurance Company shall be considered, provided the renewals have been continuous and without any break in period.
The learned counsel for OP1 has stressed / emphasis during arguments that the complainant had purchased the policy from OP1 for the first time on 22.7.2013 and therefore, it was treated as a fresh policy and as such the OP1 was justified in repudiating the claim under clause 4.1 of the terms and conditions of the policy.
The learned counsel for the complainant on the other hand has contended that the complainant is a policy holder since 2008-2009 from M/s National Insurance co. Ltd and had renewed the policy regularly till 18-8-2012 to 17-8-2013. The complainant has placed on record the photocopy of the said policies issued by NIC. He had only shifted the mediclaim policy (Happy Family Floater Policy Scheme) floated by OP1 which was effective for the period 18-8-2013 to 17-8-2014. Hence, the claim lodged by the complainant does not fall within the ambit of clause 4.1 of the terms and conditions of the Insurance policy as OP1 has failed to give the benefit of health insurance portability as per IRDA guidelines.
No proposal form has been placed on record by OP1 which suggests that no fresh proposal was sought by it and the policy was taken as a renewal of the earlier policies purchased by the insured for NIC. The learned counsel for the complainant has also contended that no proposal form was filled up by the complainant and the policy was granted by OP1 in continuity to the previous policies issued by the NIC.
We have considered the contentions on both sides. IRDA has issued guidelines on 9/9/2011, under the head Protability, it reads
1.1 Portability : Portability means the right accorded to an individual health insurance policy holder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.
1.2 Break in policy: A break in policy occurs when the premium due on a given policy is not paid on or before the premium renewal date or within 30 days thereof.
On the basis of the aforesaid guidelines issued by IRDA it is quite clear that the policy purchased by the complainant from OP1 in the year 2013 could not have been taken as a fresh policy. As per above guidelines the complainant was entitled to transfer the credit against him for pre-existing conditions and time bound exclusions provided the previous policies had been maintained without any break. OP1 had failed to prove any break in the earlier policies purchased by the complainant. We are, therefore, of the considered opinion that exclusion clause 4.1 of the terms and conditions of the policy could not have been applied to repudiate the claim lodged by the complainant, As such we hold that the OP was deficient in rendering services to the complainant and direct it as under:-
- Pay to the complainant a sum of Rs. 56699/- ( Rs Fifty Six Thousands Six Hundred & Ninety Nine Only) along with interest @ 10 % p.a. from the date of filing of this complaint i.e. 4-7-2014 till payment.
- Pay to the complainant a sum of Rs. 10,000/- as compensation for pain and agony suffered by him.
- Pay a sum of Rs. 5000/- as cost of litigation.
The OP1 shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. IF the OP1 fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
