O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant had taken a mediclaim policy bearing No.P/161112/01/2013/000951 for the period from 15.05.2012 to 14.05.2013 from the O.P for a sum insured of Rs.2,00,000/-. On 02.04.2013 at 3:00 p.m. complainant had felt “weakness left half of body paralyzed associated slurring of speech” and he was rushed to Sant Parmanand Hospital in the causality and doctor diagnosed hypertension intracranial hemorrhage and was admitted at 3:44 p.m. where after required examination and test were conducted and medicines given to him and was discharged on 16.04.2013. It is alleged that complainant incurred a total sum of Rs.1,72,118/- on his medical expenses. It is further alleged that the complainant submitted all the original medical Hospital bills etc. with the O.P to reimbursement of the claim which was paid by the complainant for his treatment. It is alleged that O.P has not given any claim to the complainant and repudiated the claim of the complainant vide letter dated 01.06.2013. It is alleged that complainant has also sent a legal notice dated 25.06.2013 but to no avail. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.1,72,118/- and also to pay cost and compensation as claimed.
2. O.P appeared and filed its written statement. In its written statement, O.P has not disputed that complainant had taken policy referred to above. It is alleged that O.P has perused the claim records sent to its office seeking reimbursement of the hospitalization expenses for the treatment of Hypertensive Bleed, ECG shows evidence of long standing Hypertension in the form of LVH. It is further alleged that on scrutiny of the medical records, in house medical experts of the O.P considered the claim for settlement as per the terms and conditions of the policy and the same was settled for Rs.95,166/- in full and final settlement. It is alleged that the same was communicated to the complainant and O.P also requested him to collect the same. It is further alleged that the maximum liability of the insurer as per the terms and conditions of the policy is Rs.95,166/-. It is further alleged that under the terms, conditions and exclusion of the policy the claim of the complainant was held to be not payable. Dismissal of the complaint has been prayed for.
3. Complainant has filed her affidavit affirming the facts alleged in the complaint and has proved documents exhibited as Ex. CW-1/1 to CW-1/10. On the other hand Shri Rajnish Kohli, Assistant Vice President has filed affidavit in evidence on behalf of O.P testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submissions of Ld. Counsels for the parties.
5. The main issue involved in the present case is as to whether the repudiation of the claim filed by the complainant who was justified or not. The answer is in the negative. As stated above the claimant was diagnosed Hypertension Intracranial Hemorrhage and the proposal form filed by the insured at the time of taking policy indicates that he stated that 12 months prior to the policy, he suffered high fever (Pneumonia) in December, 2012. The reason for repudiation of the claim by O.P is that since insured suffered pre-existing disease so relying on the exclusion clause, the claim was repudiated. It is strange that in the written statement the O.P firstly submitted that it had rejected the claim but subsequently assessed the claim for Rs.95,166/- and prepared DD No.807644 dated 04.09.2013. The stand taken by insurance amounted to playing hot and cold in the same breath and have no feet to stand. It has also been mentioned so clearly as to what was the basis of reduction of the remaining amount. It has come on record that complainant paid a sum of Rs.1,72,118/- being medical expenses including medicines and ambulance charges. The counsel for complainant also referred to Hari Om Agarwal Vs. Oriental Insurance Co. Ltd. W.P. (C) 656/2007, in which the Hon’ble High Court held as under;
“If the rule indicated in the preceding paragraph were kept in mind, it would be apparent that the object of the insurance policy is to cater to medical expenses incurred by the insured. That is the ‘main purpose’ of the contract of insurance. The object of the exclusion clause is to except the liability of the insurer. In a sense this is at variance with the object of the policy. Nevertheless, it is a part of the contract; the court should firstly seek to harmonise the all the clauses, and attempt to give effect to it. If one proceeds on this premise, the concept of ‘pre-existing condition’ has to be understood. Clause 4.1 defines it as any injury which existed prior to the effective date of the insurance; and any sickness or its symptoms which existed prior to the effective date of the insurance, whether or not the insured had knowledge that the symptoms were relating to the sickness. It is apparent that even if there were known diseases or conditions, which were disclosed and for which there was a likelihood of complications arising in the future, the insurer sought to distance itself from the liability. There is no dispute here that diabetes was condition at the time of submission of proposal; so was hypertension. In a sense these were ‘old ailments’, the petitioner was advised to undergo ECG, which he did. The insurer accepted the proposal and issued the cover. One may ask, what then was the cover for. It is not an accident cover policy, or a life policy. Now, it is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complication, etc. depending upon varied factors. That implies that there is probability of such ailments; equally they can arise in non-diabetics or those without hypertension. Unless the insurer spelt out with sufficient clarity, the purport of its clauses, or charged a higher premia, at the time of accepting the proposal, the insured would assume and perhaps, reasonably that later, unforeseen ailments would be covered. Thus, it would be apparent that given a textual effect to Clause 4.1 would in most such cases render the mediclaim cover meaningless, the policy would be reduced to a contract with no content, in the event of the happening of the contingency. Therefore, I am of the opinion that clause 4.1 cannot be allowed to override the insurer’s primary liability; the ‘main purpose’ rule would have to be pressed into service. This finding is reinforced in this case, as the insurer renewed the policy, in 2006, after the petitioner underwent the CABG procedure.”
6. In Aviva Life Insurance Claim Department Vs Sharanjeet Kaur IV (2014) CPJ 124 (PUNJ), death-claim was repudiated on ground of suppression of pre-existing disease. The court held that hypertension is a lifestyle disease, easily controllable with conservative medicine. Insured not deliberately concealed material fact, repudiation was held unjustified. Insurer cannot repudiate the contract unless the fact is actually material. Insurer can avoid policy only by proving that the statement is false, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone.
7. Keeping in view of the discussion stated above and the law point settled by complainant, we earlier opinion that the repudiation of claim of the complainant by the O.P was unjustified. Therefore, there is deficiency in service by O.P. We direct the O.P to pay sum of Rs.1,72,118/- with interest @ 6% from the date institution of the complaint till payment. We further award of Rs.10,000/- towards harassment, mental agony, loss of time and litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 26th day of February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
