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 by the name of Family Health Optima Insurance Plan bearing No.P/161100/01/2007/000049 for the period from 24.01.2007 to midnight of 23.01.2008 which was insured for two adult person plus one child for a floater sum insured for Rs.2,00,000/- having a total premium amount Rs.3,555/-. It is alleged that unfortunately the complainant’s wife i.e. insured person was hospitalized on 31.12.2007 as she was suffering from multiple fibroids uterus with degeneration and therefore was admitted for treatment in Pushpawati Singhania Research Institue, Pusha Vihar, New Delhi. It is further alleged that on 04.01.2008 complainant’s wife was discharged from the hospital and a bill of Rs.70,981/- was raised towards his hospitalization expenses which was paid by the complainant from his own pocket to the hospital. It is alleged that the complainant submitted all the original medical Hospital bills etc. with the O.P to reimbursement of the said amount which was paid by the complainant for treatment of his wife. It is further alleged that O.P has not given any claim to the complainant. It is alleged that complainant received a letter dated 16.01.2008 from the O.P repudiating his claim by virtue of the reasons of the exclusion clause No. 3.0. Complainant has also sent a legal notice dated 19.01.2008 but to no avail. On these facts complainant’s prays that O.P be directed to pay the mediclaim amount of Rs.70,981/- alongwith interest and also to pay cost and compensation as claimed.
2. O.Ps appeared and filed its written statement. In its written statement, O.Ps has not disputed that complainant had taken policy referred to above. It is alleged that as per exclusion clause 3 of the policy the complainant is not entitled to any claim in respect of the alleged disease. It is further alleged that the complainant opted for the policy during the period w.e.f. 24.01.2007 to 23.01.2008 whereas the alleged operation has been conducted during the period w.e.f. 31.12.2007 to 04.01.2008 i.e. within the two years period from the date of commencement of the policy. Hence, since two years have not elapsed from the date of policy as per aforesaid clause the complainant is not entitled to any claim for the same. Dismissal of the complaint has been prayed for.
3. Complainant has filed rejoinder reiterating all the facts as mentioned in the complaint. He has also filed his affidavit affirming the facts alleged in the complaint and has proved documents exhibited as Ex. CW-1/1 to CW-1/6. On the other hand Shri Sameer Bahadur, Zonal Manager has filed affidavit in evidence on behalf of O.Ps 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. In the present case the claim filed by the complainant was repudiated by exclusion clause 3 of the policy by the O.Ps. The exclusion clause 3 is reproduced herein below;
“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by an insured person in connection with or in respect of:
3. During the first two years of continuous operation of insurance cover, the expenses on treatment of cataract, hysterectomy for menorrhagia or fibromyoma, knee replacement surgery (other than cause by an accident) joint replacement surgery (other than caused by accident) prolapse of intervertebral disc (other than caused by accident) varicose veins and veins and varicose ulcers. If these diseases are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal too.”
The discharge summary of the injured would show that he was diagnosed with ‘multiple fibroid uterus with degeneration’. Therefore, the disease being suffered by the insured cannot, by stretch of any imagination, be term as pre-existing disease because the pre-existing disease must be in the knowledge of the injured at the time of execution of the policy which he concealed from the O.Ps. Otherwise if the plea of the pre-existing disease is taken-up by the insurance for repudiation of the claim, duty is cast on the insurance itself to prove the pre-existing disease by leading cogent medical evidence. In the instant case no evidence has been led by the insurance company to prove pre-existing disease, rather relied upon the exclusion clause written in the terms and conditions which were never supplied to the insured at the time of execution of the policy. The repudiation will be tantamount to unfair trade practice. It is now well settled law that the insurance policy can take shelter of the terms and conditions including the exclusion clause only when the said conditions are duly furnished to the insured. It has also come on record that the terms and conditions of the policy were never supplied to the complainant. 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. 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. In Oriental Insurance Co. Ltd. Vs Asim J Pandya I (2006) CPJ 115 (NC), it was held that insurance-medicalim-repudiation of claim-contention, pre-existing disease excluded from scope of policy-repudiation upheld by District Forum-order set aside in appeal hence exclusion clauses not supplied-disease not congenital or external-no deformity or defect noticed as child been normal since birth-pre-existing disease not proved-revision dismissed. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced.
7. Keeping in view the discussion stated above, we are of the opinion that the repudiation of claim of complainant by insurance company was unjustified, thus there was deficiency in service. We award a sum of Rs.70,991/- with interest @ 6% from the date institution of the complaint till payment, the 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 09th day of March, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
