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 by the name of Senior Citizens Red Carpet Insurance Policy bearing No.P/161100/01/2012/005719 for the period from 27.08.2011 to midnight of 26.08.2012 for a sum insured for Rs.2,00,000/- having a total premium amount Rs.9,326/-. It is alleged that the complainant fell ill and after some medical tests including blood test conducted on 14.02.2012 it was found that the complainant was suffering with sudden nephritic problem and due to the said sudden nephritic problem the complainant was under treatment from 14.02.2012 to 28.04.2012 and was hospitalized in City Hospital, Pusa Road, New Delhi affiliated with Sir Ganga Ram Hospital, New Delhi from 17.04.2012 to 27.04.2012. It is further alleged that the complainant paid Rs.1,72,840/- and medical claim alongwith all original treatment/ medical bills were forwarded to the O.P for clearance of the medical claim and reimbursement of the said amount to the complainant. It is alleged that complainant submitted all the original bills in support of his claim and also letter/ certificate dated 09.06.2012 issued by Dr. Ashwani Gupta, Sr. Consultant Nephrologist as required by the O.P proving that there was no past history of the ailment. It is further alleged that O.P has not given any claim to the complainant. It is alleged that complainant orally requested the O.P and also wrote numbers of letter to the O.P to reimburse the above said amount but of no avail. Complainant has also sent a legal notice dated 19.11.2012 but to no avail. On these facts complainant prays that O.P be directed to pay the mediclaim amount of Rs.1,72,840/- alongwith interest 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 as per condition No.7 of the insurance policy which states as follows;
“The company shall not be liable to make any payment under the policy in respect of any claim is in any manner or supported by any means or device, misrepresentation whether by the insured person or by any other person acting on his behalf.”
It is further alleged that as per the terms and conditions of the policy the company may at any time cancel this policy on grounds of misrepresentation, fraud, and nondisclosure of material fact or non-co-operation. Under the above ground the policy was cancelled and the O.P has returned the premium vide letter dated 09.08.2012. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint and has proved documents exhibited as Ex. CW-1/1 to CW-1/11. 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 controversy revolves round the issue as to whether the insured concealed material facts at the time of taking policy. The plea of O.P is that the insured stressed the material information about pre-existing disease. The insurer in support of his submission relied upon AIR 1962 Supreme Court 814, IV 2009 CPJ 8 (SC) and 2006 ACJ 34. The gist of the authorities stated above is that insurance was justified in repudiating the claim of the insured if the insured at the time of taking policy, concealed material facts or suppressed material facts with fraudulent intention. In the instant case the insured as per discharge summary was an old male patient with known case of HTN, MGN. As per the terms and conditions of the policy that company entitled to repudiation the claim on the ground of misrepresentation, fraud, and non-disclosure of material fact. It is now well settled law that hypertension cannot be said to be a pre-existing disease. Rather it is a state of mind connected with the 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. Above all the terms and conditions relied upon by the insurance were never supplied. 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.1,72,840/- with interest @ 6% from the date institution of the complaint till payment, the 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 10th day of March, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
A.G.
