S. Majumder, Member

This appeal has arisen against the judgment passed by the District Forum, Kolkata Unit-II, on 30.05.2008 in its case no- 34/2007, wherein the Forum below has dismissed the complaint on contest for want of jurisdiction and directed the Complainant to agitate his grievance before the appropriate Legal Forum in accordance with law.

The brief facts of the case of the Complainant before the Forum below were that he was a mediclaim policyholder of New India Assurance Company Limited from 1994-95 to 2001-02 without any ‘Exclusions’ (Heart Ailment). The Complainant changed his policy from New India Assurance Company Limited to National Insurance company Limited in 2002-03 and it was without any ‘Exclusions’ (Heart Ailment) and this policy was renewed in 2003-04 without Exclusions (Heart Ailment) After a few months of renewal the OP issued an ‘Endorsement Schedule’ on 22.12.2003 by which the OP excluded ‘All Heart Ailment’ under the policy A/c of the Complainant from inception of policy i.e. 08.09.2002. The Complainant conveyed his strong objection through letter dated 23.02.2004 to the OP’s arbitrary decision and pointed out that the policy with them was in continuation of his earlier policy with New India Assurance Company Limited, which was without any ‘Exclusions’ (Heart Ailment). The NIC made certain queries by issuing a letter dated 08.03 2004 and the Complainant sent reply on 01.04.2004 to the queries as well as further correspondences was made with the OP. The Complainant sent reminders on 05.08.2004, 13.12.2004 and 24.02.2005, but to no effect. Then the Complainant was compelled to approach before the Consumer Association on 10.11.2005, which took up the matter with the OP, but to no effect. The complainant filed the complainant before the District Forum finding no other alternative praying for direction upon the OP to honour the terms and conditions of the contract between him and the NIC in respect of the mediclaim policy of 2002-03 and let the policies issued in his favour for the year 2006-07 without Exclusion (Heart Ailment).

Being aggrieved by the above-mentioned judgment the Complainant-Appellant has preferred the present appeal contending the same facts as stated by him before the Forum below in the complaint. According to the Appellant the judgment passed by the Ld. Forum below is erroneous, illegal and liable to be set aside. The Appellant has prayed for allowing the present appeal.

The OP took the plea before the Forum below that the policy in question was not without the Exclusion Clause (Heart Ailment). The OP has stated that the mediclaim policy so far issued to the Complainant by them was subject to the terms, conditions and limitationsand was not without any Exclusion. The OP called for from the Complainant thexerox copies of the policies when thesamewas with the New India Assurance Company Limited, but the Complainant motivatedly sent xerox copies of the policies for the years 2000-01 and 2001-02 only without sending those for the years from 1994 to 2000. According to the OP the Complainant is liable to be dismissed.

Before this Commission during final hearing the Respondent was absent on repeated calls, but the Ld. Counsel for the Appellant was present all along since morning. We took the matter for hearing exparte against the OP-Respondent. Thereafter theLd. Counsel for the Respondent came and wanted to make argument as well as paryed for filingthe brief notesof argument. But we were not inclined to grant him opportunity for making argument in absence of the Appellant and we were not agree to take the brief notes of argument from the Respondent as it was not served upon the Appellant prior to filing and hearing of the argument as per our direction and as per the C.P. Rules and Regulations. But as per the prayer of the Respondent’s Advocate we were inclined to grant him opportunity for filing the written notes of argument and the same has been filed at the said moment. Thereafter the Ld. Counsel for the Respondent has raised objection against the same by filing a petition. We have perused the petition and noticed that there is no illegality regarding granting opportunity for filing the written notes of argument, as the legal provision is that the parties may file the written notes of argument after the hearing is over and this is not a mandatory provision. In the instant case the Ld. Counsel for the Respondent filed the WNA after conclusion of the argument and the Respondent has failed to avail opportunity to make his argument. Therefore in the interest of justice liberty was granted for filing the WNA from the Respondent’s end. Therefore we are of the opinion that the objection petition filed by the Appellant be rejected.

On careful consideration of the record and various documents it is seen by us that the Appellant was a mediclaim policyholder of New India Assurance Company Limited from 1994-95 to 2001-02 without any ‘Exclusion Clause’ (Heart Ailment). The Complainant-Appellant changed his policy from New India Assurance Company Limited to National Insurance company Limited in 2002-03 and it was without any ‘ExclusionClause’ (Heart Ailment) and this policy was renewed in 2003-04 without ExclusionClause (Heart Ailment). After a few months of renewal the OP issued an ‘Endorsement Schedule’ on 22.12.2003 by which the OP excluded ‘All Heart Ailment’ under the policy A/c of the Complainant-Appellant from inception of policy i.e. 08.09.2002. The Complainant-Appellant conveyed his strong objection through letter dated 23.02.2004 to the OP’s arbitrary decision and pointed out that the policy with them was in continuation of his earlier policy with New India Assurance Company Limited, which was without any ‘Exclusion Clause’ (Heart Ailment). The NIC made certain queries by issuing a letter upon the Appellant dated 08.03 2004 and the he accordingly sent reply on 01.04.2004 to the queries as well as further correspondences was made with the OP-Respondent. The Appellant sent reminders on 05.08.2004, 13.12.2004 and 24.02.2005, but to no effect. Then the Appellant was compelled to approach before the Consumer Association on 10.11.2005, which took up the matter with the OP-Respondent, but to no effect.  Hence the Complainant has filed this complaint. The Appellant has allged arbitrary decision of the Respondent regarding issuance of one ‘endorsement schedule’ to his policy for 2003-04 excluding Heart Ailment. We have noticed that the Appellant has been holding the mediclaim policy since 1994 uninterruptedly through the New India Assurance Company without any Exclusion Clause of Heart Ailment and as such he protested against this Exclusion by issuing a letter, which was duly acknowledged by the Respondent. The Appellant has argued that he duly disclosed implanting of pace maker in 1994 in his proposal form sumitted by him to the Respondent at the time of switch over to the NIC and he received claim for implanting pace maker from the New India Assurance Company Limited and as such the Endorsement Schedule to hispolicy for 2003-04 incorporating Exclusion Clausewas arbitrary and such action on behalf of the OP-Respondent is an example of deficiency in service. It is anadmitted fact that the Nic issued themediclaim policy for the year 2002-03 in favour of the Appellant without any Exclusion of Heart Ailment basedon the proposal and his declarations wherein implanting pacemaker in the year 1994 was disclosed. The said policy was renewed for the year 2003-04 without any Exclusion of Heart Ailment. But after a few months from the date of issuance of thepolicy theInsurance Company sent the above-mentioned schedule wherein they excluded the Heart Ailment. In our opinion as the Exclusion was not incorporated, not part of the policy at the time of taking out the policy or its renewal, the Respondent cannot impose or include the Exclusion Clause in the later date directing that regrding Heart Ailment the Appellant will not be entitled to get any reimbursement from the Insurance Company is highly unethical and illegal in the eye of law. The Ld. Counsel for the Appellant has refered to a judgment passedby the Hon’ble National Commission reported in (2005) CPJ 190 (NC), where Their Lordships have held that Insurance policy is a contract, clauses arebinding on the parties therefore anything purported to convey what is not part of the contract, alien to it, Company cannot take advantage of such situation. The insured is not bound by the Exclusion Clause impose or insert at the later stage.

Having regard to the above-mentioned judgment we are inclined to allow the appeal. As the judgment passed by the Forum below suffers from infirmity and with material irregularity the same cannot be sustained. Hence it is ordered that the appeal be allowed on contest without any cost and the judgment passed by the district Forum be set aside. The appeal be disposed of accordingly. The respondent is directed to honour the terms and conditions of the contract between the Appellant and the NIC in respect of the mediclaim policy of 2002-03 and let the policies issued in his favour for the year 2006-07 without Exclusion (Heart Ailment). The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the recorded Advocates of both the parties free of cost forthwith.