ORDER

1.       These three (3) revision petitions no. 2139 of 2019, no. 2140 of 2019 and no. 2141 of 2019 have been filed under Section 21(b) of The Consumer Protection Act, 1986 in challenge to the three separate impugned Orders dated 06.05.2019 passed by the State Commission in separate three (3) first appeals no. 169 of 2015, no. 167 of 2015 and no. 168 of 2015 respectively arising out of the Order dated 26.02.2015 of the District Commission in separate three(3) consumer complaints no. 191 of 2013, no. 232 of 2013 and no. 190 of 2013 respectively.

2.       It appears that the separate three(3) complaints were filed by the complainant-Sharvan Kumar Jain before the District Commission which were dismissed vide its Orders dated 26.02.2015 holding that the complainant is not entitled to any relief.  

3.       Feeling aggrieved by the same, separate three (03) appeals were filed in the State Commission but they were allowed by the State Commission vide its separate impugned Orders dated 06.05.2019 setting aside the Orders passed by the District Commission holding that the petitioner insurance co. has wrongly repudiated the medi-claims of the complainant.

4.       Now these three (03) revision petitions have been filed before this Commission. The grounds pleaded in all these memo of petitions are also identical and same, these revision petitions are hence being decided by this common Order. The revision petition no. 2139 of 2019 is being taken as a lead case.

5.       It appears that two different medi-claim policy no. 360102/48/10/ 8500000891 and no. 360102/48/11/85000001629 from the petitioner insurance co. were obtained by the respondent / complainant-Sharvan Kumar Jain in the year 2002 for himself and his family members which includes his wife namely Renu Jain, Master Raj Kamal Jain (son), Miss Ayushi Jain (daughter) and Miss Sakshi Jain (daughter) against the payment of different amounts of premium which extended the medi-claim insurance coverage for them. The said policies were regularly renewed from time to time and the complainant, his wife and children felt protected under the coverage so procured. It further transpires that during the validity of the said policies, the complainant’s son namely Raj Kamal Jain, his daughter Ayushi Jain and his wife Renu Jain were admitted in Asian Surgicentre Pvt. Ltd. Hospital at Ahmedabad, Gujarat on different dates for conducting surgery for Mini Lap Sleeve Gastrectomy. The operations were done and different amount of expenses were incurred towards the treatment, medicines and surgery etc. The petitioner insurance co. was duly informed about the treatment and the operations etc. The expenses were incurred during the subsistence of the insurance policies which was valid and operational at the relevant time. The claims of reimbursement of the expenses were put forward.  However, it appears that the claims were repudiated by the petitioner insurance co. primarily on the ground that the expenses so incurred related to the morbid obesity which was excluded under clause 4.19 of the policy conditions and the insurance coverage shall not be available for such treatments. Feeling aggrieved  by the repudiation of claims, three separate complaints were filed in the District Commission but the District Commission dismissed the complaints. Thereafter, three separate appeals were filed against the Orders passed by the District Commission. After hearing both the sides, the State Commission found merits in the appeals and allowed the same by setting aside the Orders passed by the District Commission.

          Now the present three (3) revision petitions have been filed on behalf of the petitioner insurance co.

6.       It has been submitted by the learned counsel for the petitioner insurance co. that repudiation of the claims were done only on the ground of exclusion clause 4.19 of the terms and conditions of the insurance policies which clearly postulated that the treatment of obesity or the condition arising therefrom (including morbid obesity) and any other weight control program / services / supplies were excluded thereby. Submission is that relationship of the insured and insurer is in the nature of a contractual agreement and both the parties are bound by its terms and conditions and none can travel beyond its covenant. According to the learned counsel the ambit of insurance coverage emanates and is determined by the contents of the policy’s terms and conditions which includes excluding terms also. It has been contended that it was very much within the rights of the insurance co. to insist upon the excluding terms of the medi-claim insurance policy and repudiate the claim if the same had kept the insured beyond the periphery of the protecting umbrella of the insurance coverage. According to the learned counsel the repudiation of the insurance claims were quite justified as the petitioner insurance co. cannot be called upon to make the medical insurance reimbursement with regard to the medical treatment of morbid obesity. Submission is that the District Commission had rightly dismissed the complaints and the Orders passed by the State Commission are unsustainable in the wake of the exclusion clause 4.19 of the medi-claim insurance policy’s terms and conditions.

7.       In rebuttal to the submissions made by the petitioner’s counsel, it has been submitted on behalf of the learned counsel for the respondent / complainant that the facts of the present matters are quite conspicuous and it is not a case where the policy was obtained soon before the medical treatment. It is actually a case where the policy was taken in 2002 about 10 years before the event of operation and medical treatment took place. It has been emphasised that at the initial time when the medi-claim policy was taken in the year 2002 there was nothing like the excluding clause of 4.19 in the policies. The contention is that the insured and insurer are no doubt bound by the terms and conditions of the insurance policy but if a particular term or clause never formed as part of the policy or the contract, there is no question of being bound by it. Submission is that the policy that was initially taken in the year 2002 was regularly renewed from time to time every year on regular basis without any breach. The so called exclusion clause 4.19 is said to have been introduced only in 2006 which was neither here nor there in the year 2002 when the policy was initially taken. Even in the subsequent years which followed year 2002 there was no such exclusion clause. Renewal of the policy was done from time to time on same initial conditions which existed at the time of issuance of policy initially. It has also been emphasised that there has never been any communication on behalf of the petitioner insurance co. regarding introduction of this excluding clause and the insured was never made aware about this so called exclusion clause. Submission is that in the absence of any communication regarding the said exclusion clause, the respondent / complainant cannot be made to suffer for no fault on his part. According to the learned counsel for the respondent / complainant submits that it was a fit case in which the State Commission has rightly interfered in the Order passed by the District Commission and the Order passed by the State Commission must be allowed to sustain.

8.       Perused the record in the light of the submissions by the learned counsel for both the sides at the Bar.

9.       It appears to be an undisputed fact that the insurance policy was initially taken about 10 years back before the medical facility was availed and the operation etc. in question took place. It is also not an undisputed fact that the policy was kept alive and was being regularly renewed from time to time on regular basis. It also does not appear to be in disputed that the said exclusion clause of 4.19 came to be introduced as late as somewhere in 2006 only. It is a question of crucial relevance to see whether there was a meaningful effective communication made regarding the introduction of this exclusion clause or not. It has to be seen whether the insured was ever made aware about the said exclusion clause at all. On a specific query put by the Bench to the learned counsel for the petitioner whether there exists any kind of proof or document which may be taken as a proof regarding the communication of introduction of the exclusion clause in the policies, he has been fair enough to submit that there was no documentary proof which may be furnished regarding the same. In the ordinary course of business if a particular insurance policy has been taken and is being renewed from time to time it is presumed that the initial terms and conditions with which the policy had started must have continued. If an exclusion clause was subsequently introduced at some stage later on it will be the onus on the insurance co. which is the petitioner herein to prove to the satisfaction of the Bench about its due communication. Woefully enough no such convincing proof emerges out from the record which may be taken to be good enough in order to accept the assertion of the petitioner in this regard. The insurance policies certainly are contractual in nature and the terms and conditions of covenant must be owned by both the sides. If unilaterally a particular clause is introduced by the insurance co. it will have to be duly conveyed and communicated to the person who took the insurance coverage. The claim appears to have been repudiated on the basis of the so called exclusion clause which was subsequently introduced and regarding the communication of which there is no convincing proof. It is very difficult to accept or countenance with such a situation as the same obviously goes to demonstrate the deficiency of service, This aspect of the matter has been actually gone into by the State Commission and the relevant extracts of the impugned Order passed by the State Commission may be quoted herein below which reads as follows:

13.       It is admitted position that the policy is being renewed since 2002.  Ld. Counsel has shown us the policy cover for the period from 30.08.2010 to 29.08.2011. The same shows that the proposal form and the declaration are dated 26.08.2002.  There is nothing on record to show that any new proposal form was filled when exclusion clause on the basis of which repudiation was done was introduced in the policy. It is also not disputed by the respondent / OP that the exclusion clause 4.19 was introduced subsequently.  It is not the stand of respondent/OP that fresh proposal form was filled by appellant / complainant. There is no mention of aforesaid exclusion in the original policy.  As is noted above the policy was being renewed since 2002. Renewal means repetition of the original policy.  By renewal a new contract comes into being, but said contract is on same terms and conditions as that of original policy. Reliance is placed on judgement of Hon’ble Supreme Court in Biman Krishna Bose v. United India Insurance Co. Ltd. & Anr., III (2001) CPJ 10 (SC). In the present case, since the policy was being renewed, exclusion clause 4.19 relied upon by the respondent/OP was not applicable as the same was not there in the policy issued in the year 2002.  There is also nothing on record to show that exclusion clause 4.19 was ever brought to the notice of the appellant /complaint.

14.       In Oriental Insurance Co. v Anil Rajgaris, IV (2015) CPJ 609 (NC) wherein OP unilaterally altered terms and conditions of Policy, National Commission held that insurance company ought to have given notice to complainants and should have asked their options at the time of renewal of policy. The relevant portion of same is as under:-

“When the policies were being renewed from time to time. The petitioners should have given notice to the complainants and should have asked their options, whether they wanted to continue or wanted to quit?”

15.       In view of above discussion, the respondent/OP has wrongly repudiated the claim.  Since the exclusion clause was not applicable, there is deficiency in service on the part of respondent/OP in repudiating the claim. Accordingly we accept this appeal, set aside the impugned order and consequently allow the CC No.191/2013 and direct the respondent/OP to pay the insured amount of Rs.2 lacs to appellant/complainant along with interest @ 6% from the date of filing of complaint till payment.

        After a careful consideration of the facts and circumstances of the case, the Bench does not find any good reason to take a different view of the matter than what has been adopted by the State Commission in this regard.

        It may also be observed that while sitting in a revisional jurisdiction the ambit and scope of the same is quite circumscribed and it will have to be shown that the State Commission has either exceeded its jurisdiction or abstained to exercise the same. It has also to be shown that there has been some patent illegality committed by the State Commission while passing the impugned Orders. It may also be observed that the petitioner may also demonstrate that there is some material irregularity that took place which may go to vitiate the findings returned by the State Commission. In the absence of such features, the Orders passed by the State Commission cannot be interfered with as a matter of course in a cavalier fashion. A careful perusal of the impugned Orders shows that there is no such illegality or material irregularity in the impugned Orders passed by the State Commission. The Orders passed by the District Commission have been rightly interfered with by the State Commission and the impugned Orders passed by the State Commission are well sustainable in the eyes of law and facts both. The Bench therefore finds no good ground for interference in the impugned Orders in the exercise of the revisional jurisdiction of this Commission. It has also not been able to come across any streak of perversity in the findings nor has it been able to discern any legal principle having been overlooked or wrongly ruled. Certainly the fora below cannot be castigated either to have overstepped or transgressed their jurisdiction or to have omitted to exercise the same rightfully. The facts and circumstances appear to have been weighed and vetted well and to our satisfaction

10.     The Bench does not find any merits in the instant revision petition. Resultantly, this revision petition along with other two (02) petitions too stand dismissed as such.  

11.    The Registry is requested to send a copy each of this Order to the parties in all the petitions and to their learned counsels as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.