Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.
3. The unfolded story of the complainant is that the complainant has purchased medi-claim policy for self, her husband and two children from the OPs covering the period from 6.4.2004 to 5.4.2005. It is alleged inter alia that on 14.5.2004 the complainantsleeped away in the bathroom and sustained injury by coming in contact with the blunt object.While she got severe pain in her private part, she consulted doctor on 15.5.2004 and remained as indoor patient till 24.5.2004 at Lifeline Hospital, Rolurkela where she was operated and spent Rs.25,040/-. Thereafter, the complainant made medi-claim before the OP which was notsettled. So, finding no other way, the complainant filed the consumer complaint.
4. OP No. 2 was set ex parte. OP No. 1 filed written version stating that there was policy purchased by the complainant forthe period from6.4.2004 to 5.4.2005. It is the case of OP No.1 that OP No. 2 is a third party administrator and according to his report the complainant did not cooperate to the TPA. As such the treatment as alleged by the complainant is a false. It is the case of OP No. 1 that the bleeding occurred due to pre-existing disease with complainant before obtaining the policy.
5. After hearing both the parties, the learned District Forum passed the following order:-
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Concluding to all these facts we hereby make liable to the OP No.1 and we hereby direct the OP No.1 to pay Rs.17,000/- (Rupees seventeen thousand) only to the complainant by compounding all the bills submitted which includes harassment and mental agony etc. All the orders are to be carried out within the time bound period of one month from the date of receiving of this order failing which 5% interest per annum shall be chargeable over and above all the amount form the date of this order till realization.”
6. Learned counsel for the appellantsubmitted that the learned District Forum has committed error in law by not considering the written version filed by OP No.1 with proper perspectives. According to him the complainant has already got the removal of uterus. Further, he submitted that since he has got pre-existing disease of uterus, non-disclosure of such disease is a breachof insurance contract. He submitted that the complainant has violated exclusion clause 4.1 and 4.3 of the terms and conditions of the policy. For that also she is not entitled to any claim as asked for. So, he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant and perused the impugned order including the DFR.
8. Admittedly, the complainant has purchasedmedi-claim insurance policy from the OP covering the period from 6.4.2004 to 5.4.2005. It is also not in dispute that the complainant fell down and was admitted in the hospital. It is also not in dispute that the complainant made the claim but the claim was repudiated by the OPs.
9. It is only to be found whether the complainant has proved her case and deficiency in service on the part of the OPs.
10. Clause 4.1 and 4.3 are as follows:-
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4.1 Such diseases which havebeen in existence at the time of proposing this insurance pre-existing condition means any injury which existed prior to the effective of policy etc.Pre-existing condition also means any sickness or its symptoms which existed prior to that insured person had knowledge that the symptoms were relating to the sickness complications arising from pre-existing disease will be considered part of that pre-existing condition.
4.3 During the first year of the operation of insurance cover the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Congenital, internal disease, Fistula in anus, piles, Sinusitis and related disorders are not payable if these diseases are pre-existing at the time of proposal they will not be covered even during subsequent period of renal too.”
11. It is clear from the above clauses that any sort of medi-claim for the deceased or the injury causedduring the first year policy would not be admissible. Since it is one year policy only the policy condition 4.1 and 4.3 will not be applicable to the complainant
12. Moreover, It is evident from pleading of parties that .policyconditions are conveyed to the complainant. Hon’ble Supreme Court of India in Respo Marketing Pvt.Ltd. vbrs. Tata AIG GeneralInsurance 20222 (4) CPR 428 SCheld at para 14 and 15 that non-disclosure of exclusion clause to the insured, the terms and conditionsof exclusion clause cannot be utilizedagainst the complainant.
13. In view of the aforesaid decision of the Hon’ble Apex Court the exclusion clause 4.1. and 4.3 otherwise is not applicable to the complainant.So far pre-existing disease no document is filed. Since it is a contract based on uberimafides, the non-disclosure of such fact is fatalon the part of complainant. He drew our attentionto the report of Dr.R.N.Mohapatrawhich does not prove the plea of OP. No other document is filed to show that the respondent has pre-existing disease.
12. In view of the aforesaid analysis, we are of the view that there is nothing to interfere with the impugned order and the same is confirmed. The impugned order be complied within 45 days from today.
13. The appeal stands 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.
