Delhi

StateCommission

FA/13/17

BAJAJ ALLIANZ GEN. INSU. CO.LTD. - Complainant(s)

Versus

PRAMOD KR. DUBEY - Opp.Party(s)

06 Jul 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:06.07.2015

First Appeal- 17/2013

(Arising out of the order dated 22.03.2013 passed in Complainant Case No. 1201/2008 by the District Consumer Disputes Redressal Forum (V), Shalimar Bagh, Delhi)

Bajaj Allianz General Insurance Co. Ltd.,

1, DLF Industrial Plot, Moti Nagar,

New Delhi-110015.

                                                                                       ….Appellant

Versus

Shri Pramod Kumar Dubey,

J-94, Sarita Vihar,

New Delhi-110076.

                                                                    ….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge has been made to order dated 11.05.2012 passed by the Consumer Disputes Redressal Forum-V, Shalimar Bagh, Delhi (in short, “the District Forum”) in Complaint Case No. 1201/2008.
2. Briefly the facts relevant for the disposal of present appeal are as under:

    Respondent herein was the complainant before the District Forum.  He has filed a complaint under Section 12 of the Act alleging therein that he had taken a Health Guard Policy from appellant/OP which was valid from 25.8.2006 to 24.8.2007.  The said policy was covering the respondent, his wife, daughter and son.  On the night intervening 13^th & 14^th December, 2006, the respondent had an acute pain in the abdomen.  The respondent  consulted Dr. R.K. Verma, a general Physician who gave certain medicines and advised for ultrasound of abdomen. On 14.12.2006 itself, the respondent/complainant got done ultrasound from Dr. Varun Duggal.  After conducting ultrasound, opinion was given by the aforesaid doctor that the Gall Bladder of respondent was containing a single 13 m.m. mobile calculus.  Thereupon the respondent had consulted Dr. Pradeep Chowbey on 26.12.2006.  On going through the ultrasound report and other tests, the respondent/complainant was advised for laparoscopic operation for removal of Gall Bladder. The respondent got himself admitted in Sama Nursing Home and on 8^th February, 2007 surgery was conducted and gall bladder was removed.  The respondent was discharged from Soma Nursing Home on 9^th February, 2007.  A bill of Rs.46,580/- was raised upon the respondent.  After discharge, the respondent lodged a claim for a sum of Rs.46,580/- with the appellant/OP.  The same was not settled by the appellant/OP.  Ultimately the respondent filed the complaint before the Ld. District Forum alleging deficiency in service on the part of appellant/OP and prayed for payment of medical bills along with interest @ 18%.  The respondent had also prayed for grant of compensation and litigation expenses.

3. The appellant/OP contested the claim by filing written statement alleging therein that the respondent was having a pre-existing disease which was concealed at the time of taking insurance contract.  It was alleged that respondent/complainant knew about the same and had made a mis-statement while taking the policy.  The claim was further opposed on the ground that as per the general exclusion clause of the policy, the appellant/OP was not liable to make any payment of medical expenses incurred during the first two years of taking the policy.  It was alleged that the claim was rightly repudiated by appellant/OP.
4. A rejoinder was filed wherein the respondent reiterated the averments made in the complaint and controverted the stand of the appellant/OP. 
5. The respondent filed his own affidavit in support of the claim.  The appellant/OP was proceeded ex-parte at the stage of evidence.  No evidence was filed before the District Forum by the appellant/OP.
6. Both the parties had filed written arguments. After hearing the Counsel for the parties, the Ld. District Forum vide impugned order directed the appellant/OP to pay Rs.46,580/- along with interest @ 10% per annum from the date of filing of case i.e. 22.9.2008 till payment, Rs.15,000/- was awarded towards pain and mental agony and Rs.2,500/- as cost of litigation.
7. Aggrieved with the aforesaid order, present appeal is filed.
8. Ld. Counsel for the appellant has contended that the appellant is not challenging the finding of the Ld. District Forum wherein it has been held that the respondent was not aware of the disease with which he was suffering, as such it cannot be said that he was having pre-existing disease.  Ld. Counsel for the appellant submits that the appellant is challenging the finding of the District Forum whereby it is held that the insurance policy containing terms and conditions including exclusion clause was not brought to the notice of respondent/complainant nor his consent was taken in respect of said terms and conditions as such appellant can’t derive any benefit from the exclusion clause.  It is contended that the Ld. District Forum has wrongly held that the exclusion clause is not applicable as the terms and conditions were never supplied to the respondent.  Ld. Counsel submits that it was clearly mentioned in the Policy Schedule that the scope of cover was as per policy wordings attached.  It is contended that the respondent never complained that he had not received the terms and conditions mentioned in the Schedule of Policy.  It is submitted that the respondent/complainant is a lawyer.  It is submitted that had he not received the same, he would have written to appellant/OP. It is contended that insurance policy containing terms and conditions was supplied to respondent.  It is contended that the finding of Ld. District Forum in this regard is contrary to law and material on record and the same is liable to be set aside.
9. On the other hand, Ld. Counsel for the respondent has argued that the terms and conditions of policy were never supplied to the respondent.  It is contended that no evidence was led by the appellant/OP before the District Forum to substantiate its stand that the terms and conditions of policy were supplied to the respondent.  It is contended that even the policy containing terms and conditions was not placed on record before the District Forum. Even in this appeal, no reasoning is given as to why the policy containing terms and conditions of the policy was not filed before the District Forum.  No prayer is also made in this appeal for filing the same at appeal stage.  It is contended that the appellant has annexed the terms and conditions of policy with the appeal as if the same were part of District Forum record. It is further contended that the same have been downloaded from the internet and have been placed on record for the first time.  It is further contended that there is no evidence that the same were ever supplied to the respondent/complainant.  On the other hand, respondent/complainant had filed his affidavit before the District Forum stating therein that the document pertaining to exclusion clause was never shown to him nor was sent to him.  It is contended that mentioning in the Policy Schedule that the scope of cover was as per policy wordings attached is not sufficient.  The appellant ought to have led some evidence that the same were actually sent to respondent.
10. We have heard the Counsel for the parties and perused the material on record. 
11. It is admitted position that the respondent/complainant had taken the Health Guard Policy from appellant/OP which was valid from 25.08.2006 to 24.8.2007.  It is also admitted position that the surgery of Gall Bladder of respondent/complainant was performed on 08.02.2007 from Sama Nursing Home.  The only stand of the appellant/OP is that as per terms and conditions of the insurance policy, the claim was not payable under the exclusion clause C-(2) according to which the claim of present nature was not payable for the first two years of taking the policy. 
12. On the other hand, stand of the respondent is that the terms and conditions of the policy were never supplied to respondent/complainant as such no reliance can be placed on the same. 
13. There is nothing on record to show that the policy containing the terms and conditions was supplied to the respondent/complainant.  Even before the District Forum, the terms and conditions of policy were not placed on record.  After filing of written statement, appellant/OP was proceeded ex-parte before the Ld. District Forum.  The respondent/complainant had filed an ex-parte evidence by way of his own affidavit wherein he has categorically stated that the document containing terms and conditions of policy including exclusion clause as is mentioned in the written statement was not supplied to him nor his consent for the same was taken.  Even in this appeal, nothing has been filed to show that the terms and conditions of the policy were ever supplied to the respondent/complainant.  No explanation has also been given as to why the policy containing terms and conditions was not filed before the District Forum.  Even if this document is taken on record, still the appellant/OP has to substantiate that same was sent to the respondent.  The respondent had filed his own affidavit before the Ld. District Forum where he has stated that document containing terms and conditions of insurance policy including its exclusion clause was never supplied to him. There is no challenge to said affidavit.                        No evidence is also led by appellant either before District Forum or before this Commission to substantiate that the insurance policy containing terms and conditions was sent to respondent. Simply relying on the Policy Schedule by mentioning that the scope of cover was as per policy wordings attached, it can’t be taken that respondent was supplied with the Policy Schedule.  In the absence of evidence of appellant either before District Forum or in this appeal to show that the terms and conditions were supplied to respondent/complainant, the affidavit of respondent can’t be disbelieved.  The finding of the District Forum that appellant/OP cannot derive any benefit from the terms and conditions of the policy as the same were not brought to the notice of the respondent/complainant is based on evidence on record. 
14. It has been held in National Insurance Co. vs D.P. Jain, reported in III (2007) CPJ 34 NC and United India Insurance Co. Ltd. vs S.M.S. Telecommunication & Anr., reported in III (2009) CPJ 246 NC that if the ‘Exclusion clauses’ are not explained then such clauses are required to be ignored while considering the claim of the insured. 
15. In view of above discussion, no illegality or perversity is seen in the impugned order which calls for interference of this Commission. 
16. Accordingly the appeal stands dismissed.  There is no order as to cost.
17. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

 Member