Order-19.
Date-20/01/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the Complainant in short is that the Complainant hired service of the OPsfor product Bookinginstalment scheme upon payment of monthly installment within the scope and ambit of the Consumer Protection Act, 1986 as amended by different private insurance Co. The Complainant had obtained insurance coverage under the name and style of “Family Health Optima Insurance” policy. beingno. P/190000/01/2016/001619/003 issued by OP on 25.11.2015 and accordingly O.P. also issued policy certificate. The said policy was issued in the name of the petitioner as insured by giving coverage to the petitioner in the event of any hospitalization benefitduring the period on and from 15.05.2015 to 14.05.2016 for an overall capital sum insured of Rs.3,00,000/-. The Complainant paid regular premium in favour of the OPs. After issuance of the policy and payment of premium and after expiry of few months OP on 23.10.2015 deliberately and intentionally with an ulterior motive has issued a purported letter in favour of the petitioner. O.P. have decided to include some exclusion clause after issuance of the policy. On receiving the said letter 0n 23.10.2015, the Complainant got astonished and replied the same by issuing several emails and lastly, a letter on 14.12.2015 about the said issue as raised by the OP. But OP did not pay any head to such request. OP ultimately issued one letter dated 07.12.2015 by way of canceling the said policy of the Complainant along with a cheque of Rs. 11,978/-. The Complainant submits that on the overleaf of the said policy certificate, there are some terms and conditions which are applicable in regard to any claim arising out of the said insurance. But, in such terms & conditions issued in favour of the complainant, there is no mention or whisper part as to the alleged condition for which the OP raised in their letter dated 23.10.2015. It is alleged that OP is an organization to act as per the contract of insurance. But OP is trying to invoke some new conditions. The Complainant has prayed for revival of the policy in favour of the Complainant and also other reliefs in terms of the prayer of the petition of Complaint.
OP has contested the case in filing w.v. contending inter alia that the instant case is not maintainable as framed. It is stated that the Complainant took a policy of Family Health Optima Insurance Policy for the period of 15.05.2015 to 14.05.2016 being policy No. P/190000/01/2016/001619, in the said insurance policy it has been clearly stated that the Insurance Policy is subject to conditions, clause, warranties, exclusions etc. asattached. It is stated that OP issued two Family Health Optima Insurance Policy on the life of BiswanathAchariya and RekhaAchariya for the period 15.05.2015 to 14.05.2016. Two exclusion clauses like disease of “Gastrointestinal System and their Complication and Diabetes Mellitus and its Complications” were imposed but on further scrutiny of technical department of OP, OP decided to include another exclusion i.e.” All complications of Hepatobiliary Pancreatic System “ against the insured person Mrs . Rekha Acharya based on submitted medical documents. OP accordingly, cancelled the policy vide letter dated 25.11.2015 and refunded the full amount of premium of Rs.11,978/-. It is stated that OP observing the attitude of non co-operation, revoked the contract in terms of the terms of the conditions and exclusions of the policy. This OP has alleged that there is no deficiency of service on the part of the O.P. This OPhas prayed for dismissal of the case.
Point for Decision
1) Whether the OP has been deficient in rendering services?
2) Whether the Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have travelled over the documents on record namely, photocopy of cheque of Rs.11,978/- in the name of Raja Achariya, photocopy of the letter dated 07.12.2015 addressed to RekhaAchariya, photocopies of emails, photocopy of the letter dated, nil by Raja Achariya to Insurance Ombudsman, photocopy of letter dated 23.10.2015 of Mrs. RekhaAchariya, photocopy of letter dated 22.09.2016 to M.s.R.Achariya, photocopy of terms and conditions of Family Health Optima Insurance Policy and other documents on record.
It appears that the proposer Raja Achariya took a policy in name of Family Optima Health Insurance Policy with the name for his father,BiswanathAchariya and mother RekhaAchariya who are aged about 51 years and 48 years respectively and the said policy was taken for the period 15.05.2015 to 14.05.2016 andlimit of coverage of the said policy was Rs.3,00,000/- i.e. Rs.1,50,000/- each. The said policy shows no existing disease, in respect of BiswanathAchariya and regarding RekhaAchariya.Exclusion clause are (1) Disease of Gastrointestinal System and (2) Diabetes Mellitus and its Complications.
OP vide letter dated 22.09.2015 informed insured RekhaAchariya that it has been decided to include one more Exclusions in the policy i.e. “ All Complications of Hepatobiliary Pancreatic System”.In the said letter of OP, it was further mentioned theExclusion / Pre existing diseases will be covered after 4 years from the date of inception of the first policy subject to continuous renewal. It also appears that OP party vide letter dated 27.10.2015 informed the insured RekhaAchariya that since she is not interested to incorporate further inclusion, OP is unable to continue the policy and full refund of the premium is allowed. We also find that OP ultimately issued a letter dated 07.12.2015 by way of cancelling the said policy along with cheque of Rs.11,978/-.The causitic controversy arose regarding the cancellation of the policy. We know that Insurance Policy is a contract and terms and conditions in such contract are strictly and equally binding upon both the insurer and the insured and no party under such contract can challenge the terms of the same. We find that OP already issued the policy in the name of RekhaAchariya and with two Exclusions clause i.e. disease of (1)“Gastrointestinal System and their Complication” and (2)“Diabetes Mellitus and its Complications” based on the medical documents submitted in favour of BiswanathAchariya, and RekhaAcharaiya.We find that after a lapse of few months the OP party on 23.10.2015 issued a purported letter in favourof the Complainant intimating that OP has decided to include some Exclusion clauses after issuance of the policy. We think that what prevented the OP to incorporate the ‘exclusion clause’ regarding the complication ofHepatobiliary Pancreatic System “ at the first instance ? It is accepted that OP has issued the subject policy afer scrutinizing all the medical documents submitted earlier. It is has been specifically observed by the Hon’ble Supreme Court as well as NCDRC that insurance contract and terms and conditions in such contract are equally binding upon both the insurer and the insured and no party under such contact can challenge the terms of the same. We think that the subsequent exclusion clause is violation of the earlier contract in respect of the policy, because in the earlier policy no such exclusion clause regarding ‘Complication of Hepatobiliary Pancreatic System’ was incorporated. We think that this is an instance of deficiency of service. We think thatO.P. cannot add any Exclusion clause subsequently, when the subject insurance policy is issued in the name of RekhaAchariya incorporating two conditions in the subject policy.We think that OP has to revive the subject policy accepting the premium amount from the Complainant. In the fact and circumstances of the case, we however, pass no order as to compensation.
In result, the case succeeds in part.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP with cost of Rs.10,000/-.
The OP is directed to revive the subject policy being No. P/190000/01/2016/001619/003 in favour of the complainant on taking premium amount of Rs. 11,978/- treating the subject policy as continuing one within one month from the date of this order. In default, Complainant will be at liberty to put the order in to execution and in that event O.P. shall be liable to pay penal damage at the rate of Rs.100/- per diemto be deposited to this Forum.
