Heard learned counsel for both sides.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

FACTS

3.   The unsworn details of the case of the complainants is that the complainant has purchased one Family Health Insurance Policy (IOB- Health Care Plus) from OP No.2 through OP No.1 for a sum assured of Rs.2,00,000/- on 19.12.2013 on payment of annual premium. The policy was in force for the period from 19.12.2013 to 18.12.2014 covering the complainant and his family members including his father. It is alleged inter alia  that the father of the complainant namely, Madhusudan Senapati suffered from health problem and was admitted in S.C.B.Medical College and Hospital on 27.12.2013 and underwent treatment. By that complainant has to spend a sum of Rs.1,27,005/- towards medical expenses. He was discharged from the hospital on 1.1.2014 and immediately complainant filed the claim for settlement of the same. OP No.2 unfortunately rejected the claim. Challenging the repudiation as unfair trade practice and deficiency in service, complainant filed the complaint.

4.      Per contra, OP No.1 was set ex part. OP No.2 filed written version stating that the complaint is not maintainable and the complainant is not a consumer. It is also averred that the claim is bad for mis-joinder and non-joinder of necessary party because the third party administrator i.e. E-MEDITEK (TPA) Services Limited has not been impleded as party. It is averred that the policy was issued along with policy terms and conditions and there is specific condition in the policy that the fruit of the policy would not available for hospitalization within 30 days of inception of the first policy. Since the hospitalization or expenses are incurred for Madhusudan Senapati in the first 30 days of commencement of the policy, the claim was repudiated. Therefore, they submitted that there is no any deficiency in service or unfair trade practice on their part.

DECISION OF DISTRICT FORUM

5.      After hearing both parties, learned District Forum  passed the following impugned order:-

                             “xxx   xxx   xxx

            The complaint is allowed against the OP No.2 on contest and dismissed as against OP No.1. The opp.party No.2 is directed to pay a sum of Rs.1,26,805/- (Rupees one lakh twenty six thousand eight hundred five) only to the complainant along with cost of the litigation of Rs.1,000/- (Rupees one thousand) only. The compliance of the directions shall be made within a period of one month failing which the opp.party No.2 shall be liable to pay interest @9% per annum from the date of this order till payment.”

SUBMISSION

6.      Learned counsel for the appellant submitted that the learned District Forum erred in law by allowing the complaint without considering the written version with proper perspectives. According to him, there is clear terms and conditions in schedule – B to the effect that the claim under scheme would not be available to the hospitalization and legal expenses occurred during first 30 days of commencement of the policy. Learned District Forum has not at all considered this aspect. Moreover, learned District Forum has not applied judicial mind to the fact that the terms and conditions of the policy vide Ext. B is a part of policy Ext. A and all have been supplied to the complainant but the learned District Forum has not followed these terms and conditions and as such the impugned order  being venerable should be set aside.

7.      Learned counsel for respondent No.1 vehemently opposed the submission of learned counsel for the appellant stating that Ext.B does not contain the signature of the complainant. Had it been the part and parcel of the policy, it would contain the signature of both parties but none of the parties have signed in the terms and conditions of the policy. He also submitted that Ext.B was not supplied to them. Therefore, he supports the impugned order.

DISCUSSIONS

8.      Considered the submission of learned counsel for  the  respective parties and perused the DFR including the impugned order.

9.      It is admitted fact that the complainant has purchased the policy from IOB Health Care Plus from OP No.2 to cover his family members including his father. It is not in dispute that his father was admitted in the hospital during currency of the policy. It is also not in dispute that the complainant has made the claim towards the medical expenses of his father for Rs.1,27,005/-.

10.    The only crucial point in this case is that whether the repudiation of claim has been made by the insurance company rightly or not. Learned District Forum has recorded the finding that the terms and conditions of the policy was not supplied to the complainant while purchase the policy. Now the onus lies on  OP No.2 to show that while the policy was purchased not only policy was forwarded but also terms and conditions of the policy was forwarded because the complainant has denied to have received the terms and conditions of the policy whereas OP No.2 has asserted that the terms and conditions of the policy was also supplied. It is settled in law that he who asserts a plea has to prove the same. We have gone through the evidence led by OP No.2. OP No.2 has proved the policy schedule vide Annexure – A whereas it has proved the policy condition vide Annexure – B. Now the question arises whether Ext. B supplied when Ext. A was issued to the complainant. It appears that policy schedule contains the name of the complainant with the sum assured. Also it contains the name of the beneficiary.  It has also endorsement “the annexure referred  please read the policy and policy schedule.” But it does not disclose that policy terms and conditions are accompanied by this policy. Apart from this Annexure – B containing the terms and conditions does not disclose any name and address of the policy holder including the policy number of complainant. So, Annexure – B cannot be said by any stretch of imagination that it is part of Annexure – A. Apart from this, it is not mentioned in Annexure – B about the nature  of policy and period of policy that belongs to complainant. Therefore, OP No.2 has failed to establish by evidence that Annexure – B was supplied while Annexure – A was issued to the complainant.

11.    Bereft of above fact, we are also concerned with the nature of the policy claimed by OP No.2. If the hospitalization on the first 30 days is left out of the policy then it is not conscionable to find out  how these conditions are applicable to the one year policy. The simple reason is that for 12 months policy if first month is not covered how can it be applicable to take the premium for the entire 12 months. Therefore, we are of the view that such terms and conditions even if proved to be supplied, that cannot be applicable to the kind of policy purchased by the complainant.

12.    In view of above discussion, we are of the view that the terms and conditions as pointed out by OP No.2 are not applicable to the complainant and as such he is entitled to the medical expenses and hospitalization expenses of his father as per the claim made by him. Hence, there is no error in the impugned order and we confirm the same.

13.    Thus, the appeal sans merit and as such dismissed. No cost.

          DFR be sent back forthwith.

        Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.