The case of the complainant in brief is that the complainant alongwith his wife Radhadevi Damani obtained a Health Insurance Policy with Royal Sundaram Alliance Insurance Company Limited. Initially insurance was for two years with effect from 06-12-2007 to 05-12-2009 . The OP insured master Policy No. HCSTCD0005,  Certificate No. CE000422208000100 which was issued under name and style Hospital Cash Insurance Plan. After completion of above two years the complainant renewed the policy with OP No.1 the Master Policy being No.HCSTC-D0005, Certificate No.CEE0013477000100 for  another period of two years with effect from 25-05-09 to 24-05-11. After completion of above two years the complainant again renewed the policy being Certificate No.CEE0034457000100 with effect from 04-05-11 to 03-05-13 for another  two years. In the meantime during the subsistence of third renewal policy the complainant developed some problem for which he had undergone a Cholecystitis operation at Damani’s Nursing Home on 13-11-11. The matter was immediately informed to the OP and the OP after receiving the said information requested the complainant  to fill up the claim form with an advice to despatch the same within fifteen days from the date of discharge. The complainant was discharged from hospital on 21-11-11. The complainant thereafter submitted the original claim form as per procedure along with the relevant original documents which were accepted by the OPs. The OP No.1 after receiving the said claim form repudiated the claim vide letter dated 19-01-12 stating that the claim of the complainant is not maintainable as it was not covered under the policy within first year. The complainant was surprised because the policy of the complainant was not within its first year. The complainant obtained the policy from 06-12-07 which was renewed thrice and was valid upto 05-12-13. Since the complainant is holding the Health Insurance Policy with OP No.1 since 06-12-07 the operation was not carried out within one year of the inception of the policy as alleged by the  OP No-1. The OP No-1 in spite of receiving the genuine claim of the complainant failed and neglected to pay the compensation amount of Rs.58,996/- which amount to deficiency in service. The complainant has suffered financial loss and harassment for which he filed the present claim case against the OPs with prayer to pass order directing the OP to pay a sum of Rs.58,996/- along with interest @12% per annum with effect from 22-11-11, a sum of Rs.10,000/- for financial loss and harassment and cost of litigation of Rs.5000/-.

    After registering the case notices were issued to all the OPs. OP No.1 have contested the case by filing written statement. Proforma OP No.2 and 3 did not file any written statement.

   OP No.1 while filing the written statement stated inter –alia that the case is not maintainable either in law or as well as in facts. OP No.2 stated that the complaint petition is barred by limitation in view of section 24-A of the Consumer Protection Act, 1986 as the complaint filed by the complainant after lapse of two years of the repudiation of the claim. The claim was repudiated on 19-01-12 whereas, the complaint petition was filed on 18-07-14 i.e. after  lapse of two years eight months. The OP No.1 further stated  that complainant undergone Laparoscopy for Cholsecystectomy as the complainant suffered from acute Cholecystitis and was operated on 13-11-11 and he was discharged from hospital on 21-11-11. The claim of the complainant have rightly been repudiated by the OP due to exclusion clause D-3. The Stones in Urinary and Biliary systems were excluded under the policy coverage from the first year of the policy inception and as the complainant took a fresh policy which is not renewal of previous old policies, as such, the stones by Biliary systems are not covered under policy of the first year of the policy inception for which, the claim is untenable  and unsustainable as per policy. It is further submitted that the insurance is a contract between the insurer and insured wherein the insured has agreed for the contract of the insurance and therefore, terms and conditions are binding on the parties.  As such, OP rightfully repudiated the claim of the complainant as the complainant is not entitled to receive any compensation in law and the claim is liable to be dismissed.

In this case the complainant gave his  evidence by swearing affidavit and exhibited as many as  9 (Nine) documents and also examined two other witnesses as CW-2 and CW-3 in support of his case. On the other hand, the OP No.1 neither adduced any evidence nor argued the case.

DISCUSSION, DECISION AND REASONS THEREOF :

         Upon going through the evidence of complainant’s witness No.1,2 and 3 and their documents, it is found that complainant Asharam Damani and his wife Smti. Radhadevi Damani insured themselves of a Health Insurance Policy with OP No.1 Royal Sundaram Alliance Insurance Company Limited. Initially the policy was  from 06-12-07 to 05-12-09 for two years, after completion of  two years again the policy was renewed with effect from 25-05-09 to 24-05-11. Thereafter, again it was renewed from 04-05-11 to 03-05-13.  Each policy was for two years. In the meantime, during the subsistence of third renewal policy  the complainant developed some problem for which he had undergone a Cholecystitis operation at Damani’s Nursing Home on 13-11-11. The complainant after observing all the formalities submitted the original claim as per procedure along with relevant original documents which were duly accepted by OPs. The OP No-1 after receiving the said claim repudiated the claim of the complainant vide letter dated 19-01-12 stating that the claim of the complainant is not maintainable as it was not covered under the policy within first year. Hence, the complainant filed the present case. On the other hand, the OPs agitated on this complaint case stating that the complaint petition is barred by limitations in view of section 24-A of the C.P. Act, 1986. Further, it is contended that the Stone in Biliary Systems were excluded under policy coverage from first year of the policy inception and as complainant taken a fresh policy which is not renewal of the previous policy as such, claim is untenable and unsustainable as per policy condition.

      Learned counsel for the OP argued that claim of the policy is barred U/s 24-A of the C.P. Act. So far limitation is concerned in this case on perusal of the record it is found that the claim of the complainant was repudiated on 19-01-12 which is evident from Ext-8 of the complainant and Ext-4 of the OPs. Whereas, the complainant filed the present case before this Forum on 18-07-14 i.e. after lapse of two years eight months. The complainant submitted the complaint after the expiry of two years from the date of cause of action. Section 24-A which read as under-

“  24-A- Limitation period – The district forum and  the   state commission or the national commission  shall not admit a complaint unless it  is filed within two years from the date of which  the cause of action has arisen.”

 It is to be mentioned here that the complainant has also not filed any petition before the Forum to condone the delay of eight months. Had the complainant would have submitted the condonation petition the Forum would have been at liberally to allowing the condonation petition if sufficient cause is shown whereas, in this case no such petition was filed and delay was not condoned by the Forum. Hon’ble National Commission has held in Sudamalal Madhavani v. New India Assurance Company Limited, (II) 2007 CPJ 144 (NC)  that the limitation start from the date of repudiation of the claim. From perusal of the documents as mentioned above the claim of the complainant was repudiated on 19-01-12 which clearly establish from the fact of the case that the claim is barred by  limitation and the instant case is not maintainable under C.P. Act for which the claim is liable to be dismissed.

So far exclusion clause is concerned, Ext-1, the policy and the exclusion clause which has clearly mentioned  that some in Urinary and Biliary Systems were excluded under policy coverage towards first year of the policy inception.

The exclusion clause- 3 which read as under-

 “3.First Year Exclusions:

Treatment of Congenital Internal Diseases, any type of Migraine/Vascular head ache, Stones in the Urinary and Biliary systems, Surgery on Tonsils/ Adenoids, Gastric and Duodenal Ulcer, any type of Cyst/Nodules/ Polyps, any type of Breast Lumps, Spondylosis/ Spondilitis any type, Inter vertebral Disc Prolapse and such other Degenerative Disorders, Cataract, Benign Prostatic Hypertrophy, Hysterectomy, Fistula, Fissure in Anus, Piles, Hernia, Hydrocele, Sinusitis, Knee/Hop Joint replacement, Chronic Renal Failure or end stage Renal Failure, Heart diseases, any type of Carcinoma/Sarcoma/Blood Cancer, Osteoarthritis of any joint during the first year of the operation of the Policy with us.”

The complainant stated that the policy which he obtained was from 06-12-07 and renewed thrice two yearly i.e. the policy is four years old and  not one years old. The OP received Insurance premium from the complainant from 06-12-07 to 03-05-13 and issued Master Policy No. HCSTC-D0005, Certificate No.CE00040008000100 and the number were same  for the subsequent policies also. It is admitted fact that the complainant obtained  three Insurance each for two years. It is pertinent to mention here that though he took three policies but those policies were not consecutive policy. The complainant purchased the policy for first year from 06-12-07 to 05-12-09 for two years. The next policy had to be renewed from 06-12-09 to 05-12-11 for another two years. The necessity of the date being 05-12-11 the second renewal policy was from 25-05-09 to 24-05-11 from where it appears that it is not a continuous policy. The third policy was ended on 24-05-11 and the next renewal policy would have been 23-05-11 to 24-05-13. But while going through the  third policy i.e. Ext.5 it is found that the Insurance policy was with effect from 04-05-11 to 03-05-13 for a period of two years. All the three policies were not consecutively renewed for which it cannot be treated as a renewal of one another. The complainant had availed a fresh Insurance Policy No.CEE0034457000100 valid from 04-05-11 to 03-05-13. Ext-1 is the said policy. Admittedly the complainant was admitted on 13-11-11 and discharged on 21-11-11 within the validity period of first year of the third policy. The complainant undergone the operation of Stone in Urinary Systems which is not covered under the policy for the first year which is not tenable as per the policy terms and conditions.

From perusal of the exclusion clause -3 it is found that the Company is not liable to make any payment, in respect of any expenses whatsoever incurred by any insurance persons in connection with or in respect of treatment for the Stone in the Urinary and Biliary Systems during the first year of the operation of the insurance coverage. As such, as per terms of the exclusion clause the complainant is not entitled to receive any compensation as claimed by the complainant.

Further, it is to be mentioned here that in Ext-7 filed by the OP i.e. the claim form were the treating Doctor Rupjyoti Dutta has clearly indicated in the claim form that the complainant is suffering from acute Cholecystitis and had undergone Laparoscopy for removal of the Stones from Biliary Systems as the said ailment is excluded from the policy term during first year of the policy inception. The contract of the Insurance and their terms and conditions are binding on the respective party and no party can deviate from the Insurance contract. Since the conditions are binding upon the insured and the insurer the complainant is not entitled to receive any of the compensation as claimed for.

In view of the above the claim petition of the complainant is dismissed.