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/161127/01/2014/002726 for the period from 25.03.2014 to 24.03.2015 from the O.P-1&2 for a sum insured of Rs.3,00,000/-. On 28.03.2014 complainant was hospitalized due to high fever and had undergone treatment in Jeewan Nursing Home and was discharged on 02.04.2014. It is alleged that the policy provides cashless facility in case of hospitalization. It is further alleged that cashless treatment was rejected by O.Ps when contacted for payment towards hospital bill to the tune of Rs.31,898/- on 28.03.2014 for the reason symptoms are since 5-10 days. It is alleged that complainant had taken no claim during the past years when the earlier policies were in operation. The policy documents itself bears a note-NILL-under pre-existing column. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.31,989/- and also to pay cost and compensation as claimed.
2. O.P.1&2 appeared and filed their written statement. In their written statement, O.Ps has not disputed that complainant had taken policy referred to above. It is alleged that the complainant was admitted in Jeewan Nursing Home and Hospital, Delhi on 28.03.2014 for the treatment of acute exacerbation with acute bronchitis-chest infection. It is further alleged that on receipt of the pre-authorization request from the treating Hospital, the O.Ps have observed that the insured was symptomatic of the above disease since 5-10 days which falls under the break period earlier. It is 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 his affidavit affirming the facts alleged in the complaint. On the other hand Shri Rajnish Kohli, Assistant Vice President has filed affidavit in evidence on behalf of O.Ps 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 complainant and Ld. Counsels for the parties.
5. The main issue involved in the present case is as to whether the repudiation by the O.Ps was justified or not. The O.Ps ventured to repudiate the claim filed by the complainant on the ground that the policy was taken by the complainant on 25.03.2014 and he was hospitalized just after 3 days i.e. on 28.03.2014 due to high fever and had undergone treatment. It has been further contended that as per discharge summary the patient was admitted with history of fever on and off since 10 days and such the complainant suffered the disease when there was no policy with the O.Ps. It has further stated that complainant was suffering from pre-existing disease which was not disclosed at the time of execution of the policy and as per condition No.9 the O.Ps were within their right to repudiate the claim. In support of his submission Ld. Counsel for the O.P relied on AIR 1962 Supreme Court 814, 2006 ACJ 34, Revision Petition No.610 of 2012 titled Max New York Life Insurance Co. Ltd. Vs Mr. Amaresh Reddy, (2008) I SCC 321, Revision Petition No.4678 of 2009 titled Satish Kumar Vs Branch Manager Life Insurance Corporation of India decided on 20.05.2013. The counsel urged that in all the aforesaid authorities the repudiation by insurance company was held justified by the courts where the insured deliberately and intentionally withheld/ concealed the material information as to his/ her previous ailment. The counsel for the complainant on the other hand stated that there was no concealment of material facts because at the time of admission the patient casually informed the doctors about the symptoms and the fever. Thus intimation to doctor as to suffering from fever for the last 10 days before admission cannot be said to be a pre-existing disease.
6. We have considered the rival contentions raised by counsel for the parties and have also perused record. 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. It is now well settled law that every concealment cannot be said to be material one unless it was very much in the knowledge of the insured and he had taken the medicines for the same. However, in the instant case the authorities relied upon by the counsel for O.Ps are not applicable. Therefore, we hold that the repudiation of claim by the O.Ps was unjustified and unwarranted.
7. Therefore, there is deficiency in service by O.Ps. We direct the O.Ps to pay sum of Rs.31,898/- with interest @ 6% from the date institution of the complaint till payment. We further award of Rs.5,000/- towards harassment, mental agony, loss of time and litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 29th day of February,2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
