Delhi

West Delhi

CC/14/324

Harinder Pal Singh - Complainant(s)

Versus

Oriental Insurance Company - Opp.Party(s)

16 Oct 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST).

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

 

Date of institution: 28.05.2014

Date of order:____________16.10.2019_

Complaint Case No. 324/14

IN  MATTER OF:-

Sh. Harinder Pal Singh

47 /5, East Patel Nagar

New Delhi-110008 

Ph:- 9810594181..…. Complainant

VERSUS

 

1. Oriental  Insurance Company Ltd.

Division Office 10(Code No. 212200)

101 LSC 1^st Floor H-Block Market

Vikas Puri,

New Delhi-110018                                  ….Opposite Party No.1 

 

2. Raksha TPA

C/o  Escort  Corporate Center

15/5 Mathura Road

Faridabad( Haryana) -121003…...Opposite Party No.2

 

O R D E R

 

K.S. MOHI, PRESIDENT

 

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986.  The complainanthadobtained  a family floater mediclaim policy from OP-1 in the name of his  wife Ajinder Kaur.  OP-1 and OP-2 separately issued medclaim cards to all three members  of the family.  It is further   averred that the complainant was  admitted for medical   treatment  on account of chest pain on 08.10.2013  in B.L. Kapoor hospital  and was subsequently  shifted to  Ganga Ram Hospital  where he remained admitted upto 10.10.2013.  At Ganga Ram Hospital the complainant was diagnosed  with  cornory artry  disease and a stent was  inserted in one of the arteries  costing him the treatment  to the  tune  of Rs. 2,68,000/-.  The TPA was approached for  cashless facility which was  denied .  The complainant made the  entire  payment  of the medical treatment and filed claim  for reimbursement of the same which was  rejected  by the OPs stating therein  that the disease  for which treatment had been taken fell under 2 years of exclusion clause of the policy.  It has been specifically mentioned in the complaint that the OPs did not supply the terms and conditions   either to complainant or his family members at any point of time.  Hence the present complaint for reimbursement of Rs.2,68,000/- with compensation for harassment, metal agony and litigation expenses.

2. Noticewas sent to both the OPS. Both the OPs filed  separate reply taking  all most the  identical  objections to the effect that the claim  sought by the complainant was not payable  on account of  violation of clause NO. 4.1. and 4.3  of the terms and conditions of the  insurance policy issued to the complainant.  It  has been stated that the disease suffered  by the complainant  fell within two years of the policy, whereas the complainant  was holding  the policy in question  for the first  year and that since  2 years have not  yet lapsed, therefore,  the claim  fell within the exclusion clause for  the terms and conditions of the policy.
3. The complainant was asked to file evidence. The complainant  has filed rejoinder.  He also filed cum affidavit of evidence reaffirming the facts of the complaint.  He relied upon the copy of policy No. 212200/48/2014/495, Receipt of premium, Discharge Summary  dated 10.10.2013 ,  Bill No. 2013-2014/Ca /I /0031707  dated 10.10.2013. On the other hand Sh. R.S. Rawat  Divisional Manager  of Oriental Insurance Company filed affidavit of evidence on behalf of OP-1 and relied upon copy of policy with terms and conditions  annexed as Exhibit –R-1”(Colly ), Copy of letters dated 31.12.2013, 14.03.2014 and 28.04.2014. annexed as Exhibit –R-2”(Colly ).
4. We have heard the Counsel for the parties and have gone through the material on record carefully and thoroughly.
5. Controversy lies in a narrow campus.  Only one point is urged on behalf of the OP that claim was not covered under the exclusion clause.  The plea of the complainant is that the terms and conditions of the policy were never furnished to him.  Now the question arises as to whether OP could reject the claim in on the basis of exclusion clause which was never furnished to the insurer.  The answer is in the negative.  Admittedly the contract of insurance is based on utmost bona-fide intension of the  parties.   Both the parties are expected to disclose each other relevant fact at the time of commencement  of the policy.  As the  insured  is excepted  of disclosing every aspect as to his state of health, so is insurer bound to supply all relevant documents including the terms and conditions of the policy to the  insured.    However, in the present  case the insured has taken a specific stand as to non-supply of terms and  condition, it  has been emphatically denied by the  OPs.  The OPs have not placed on record any document whatsoever to establish that it supplied the terms and conditions to the complainant either at the time of  execution of policy or any time subsequent there to.  It is now well settled law that insurance company can  not escape  under the umbrella  of so called terms and conditions to thwart legitimate   and justified claim of the insured, if the said terms and conditions were not supplied to the insured.    In the present case there is no iota of evidence as regards  supply of terms and conditions to the complainant.
6. In the Judgment titled Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. (2000)  2 SCC 734 Hon’ble Supreme Court  held as :-

“It is the fundamental  Principle of the Insurance Law  that utmost  good faith must be observed by the contracting parties  and  good faith  forbids either party from  disclosure and similarly it is the duty  of the  insurance  company and its agent  to disclose all material facts  in their  knowledge since the  obligation of good faith applied  to both equally.  Since the terms and conditions of the standard policy wherein exclusion  clause postulating cesser of the insurance in case of  second hand /used property was included were neither  a part of the contract of insurance nor  discloses to the insured the insurer could not claim the  benefit of the said exclusion clause.”

 

It is now well settled law that where parties have entered into a contract on the basis of terms and conditions, in such a situation it would be the terms and conditions which would prevail.  The Hon’ble Supreme Court in case titled Export Credit Guarntee Corpn. Of India Ltd.  Vs.  Garg Sons International 2013 STPL (Web) 36 SC, held as under:

“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).”

 

 

“Thus, it is not permissible for the court to substitute the terms of the contract itself, under the grab of construing terms incorporated in the agreement of insurance. No exception can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”

 

In  view of the discussions stated above the  repudiation of claim of complainant by OP  was  unwarranted  and unjustified  and  pass an award  in the sum of Rs. 2,68,000/- in favour of the complainant and against OP  to be paid by OP  within 45 days from the date of receipt of this order failing which failing which OP shall be liable to pay interest @ 6% p.a. from the date of filing of the complaint till actual realization. We also award a sum of Rs. 20,000/- for harassment, mental agony and harassment.

Copy of this order be sent to the parties as per rules.

File be consigned to the record room. 

Announced this___16TH___ day of _____OCTOBER________ 2019.

 

 

( K.S. MOHI )    (S.S. SIDHU)               (PUNEET LAMBA)

PRESIDENT         MEMBER                            MEMBER