O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.Ps 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/161111/01/2013/004443 for the period from 28.12.2012 to 27.12.2013 from the O.P for herself and her two children for a sum of Rs.3,00,000/- including cumulative bonus of Rs.1,25,000/- (total coverage of Rs.4,25,000/-). On 11.02.2013 complainant had suffered pain and giddiness and was admitted in Kailash Hospital & Heart Institute, Noida in the emergency ward for the treatment of the same and was discharged on 12.02.2013. It is alleged that complainant incurred a total sum of Rs.18,926/- on her 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 her 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 12.02.2013 and 10.05.2010. It is further alleged that complainant orally requested the O.P and also wrote a representation to the O.P to reimburse the claim amount but of no avail. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.18,926/- 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 refer to above. It is alleged that there is a breach of mediclaim policy exclusion clause No.12 of the policy, “the company shall not liable to make any payments in respect of any expenses what so ever incurred by any person in connection with or in respect of charges incurred at Hospital or Nursing Home primarily for Diagnostic, X-ray or laboratory examination not consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment, sickness or injury, for which confinement is requires at hospital/ nursing home.” It is further alleged that the complainant patient is a known case of hypertension and hypothyroidism for the past 4 years which is prior to the inception of the policy with us. Hence the present ailment of the insured patient is a pre-existing disease. As per exclusion 1 of the policy, “the company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by any insured person in connection with or in respect of Pre-existing diseases as defined in the policy until 48 months of continuous coverage have elapsed, since inception of the first policy with the company.” 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-1/15. 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.
4. We have carefully gone through the record of the case and have heard submissions of Ld. Counsels for the parties.
5. The main controversy in this case is that the O.P repudiated the claim filed by the complainant on the basis of exclusion clause 12 as a pre-existing disease. The counsel for the complainant, on the other hand submitted that repudiation is totally baseless because he was never supplied with the copy of the terms and conditions. Furthermore the disease diagnosed by the Hospital for hypertension, was never concealed by him at the time of execution of policy. Now the question arises as to whether the rejection of claim was justified or not. The answer is in the negative. The repudiation appears to be on the basis of exclusion clause with regard to pre-existing diseases. Admittedly the insured suffered hypertension. The disease hypertension is connected with life style of a particular person which can be overcome by traditional treatment and can never be said to be a pre-existing disease. 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 life style 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. Thus the mere fact that it has come in the discharge summary that complainant was a known case of dilated cardiomyopathy since 2000 cannot be turned as a pre-existing disease because such disease can only be detected by the medical expert. Even otherwise the insurance company can only be permitted to have recourse to the terms and conditions particularly the exclusion clause if the same were supplied to the insured at the time of execution of insurance policy. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant at the time of execution of policy, exclusion clause cannot be enforced. In another case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally.
6. Keeping in view the discussion stated above the plea of insurance fails because the terms and conditions were never supplied to the insured. Thus it is a case of deficiency in service. We direct the O.P to pay sum of Rs.18,926/- with interest @ 6% from the date institution of the complaint till payment. We further award of Rs.2,000/- towards harassment, mental agony loss of time and Rs.1,000/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 18th day of January, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
