Order No. 17 Dt. 21.11.2007
The necessary facts giving rise to this application are as follows:
The complainant has been purchasing medical insurance policies for himself from the oriental Insurance company since 12.6.2003. Every year this policy has been renewed without any break. The last policy was taken on 12.6.2005 which remained valid up to midnight of 11.6.2006.The petitioner fell ill. He was admitted to AMRI Hospital, Kolkata on 31.8.2005 from which he was discharged on 3.9.2005 and underwent surgery on nasal problem for which physical findings on examination is “ spur right and deviated nasal septum to left with chronic rehinosinusitis.” The mediclaim policy is for a sum of Rs. 60,000/-. The complainant lodged his mediclaim with the Insurance Company but the same has been repudiated vide communication Ext 4. The repudiation letter reads as under”,
“Clause: (4.1) Pre existing diseases not covered in the Policy
Clause: (4.8) Convalescence, general debility, rest cure, congenital external disease or defects or anomalies, sterility, venereal disease, intentional self-injury and use of intoxicating drugs / alcohol.
P-2
Remarks:The insured was suffering from chronic rhinosinusitis due to D.N.S. for last 1 year (DOA-31-08-2005) i.e. before inception of the policy (12.06.2005). Moreover, here the disease is considered as congenital external anomaly as it was not occurred due to injury. Hence considering the above facts the claim is repudiated.”
which gives rise to the instant application for the reliefs made out in the petition of
complaint.
OP no.2 contests the case by filing written version contending therein that:
The petitioner was the patient of Congenital External Anomaly and his nature of illness was deviated nasal septum to left with chronic rhinopharyngitis with sinusitis and he was suffering from such type of disease for the last one year or more. It is reported by the Heritage Health Services Pvt. Ltd. that the petitioner has violated the conditions of Medi Claim Insurance Policy for individuals from the “ The Oriental Insurance Co. Ltd.”..
That the condition mentioned in clause [4] of the Medi Claim Insurance Policy for individuals that “All diseases stroke, injuries which are pre-existing when, the cover incepts for the first time for the purpose of applying these conditions, the date of inception of the initial Medi Claim Policy taken from any of the Indian Insurance Co. shall be taken, provided the renewals have been continuous and without any break. As such for the violation of such condition the present petitioner is not at all entitled to get any benefit out of insurance coverage i.e. Medi Claim Insurance Policy for Individuals,. as because his nature of illness was pre-existing and the petitioner intentionally has concealed all these facts to the Insurance Co.
That the Clause 4.8 of the Medi Claim Insurance Policy states that “ “Convalescence, general debility, ‘run down’ condition or test cure, congenital external disease or defects or anomalies sterility, veneral disease, intentional self injury and use of intoxicating drugs/Alcohol.” This petitioner’s disease is considered as congenital external anomaly as it was not occurred due to injury which fall under the exclusion 4.8. Hence, the prayer for claiming the present award will be waived as per the rules and regulations in respect of exclusion mentioned in 4.1 and 4.8 of the Medi Claim Insurance Policy for Individuals.
That thus the claim of the claimant is not at all maintainable.
That, concealment of facts by the claimant amounts to penal offence according to law of the land.
That the claimant will be liable for payment of litigation cost for harassing the Company by bringing out a false claim against the Company.
P-3
That the Heritage Health Services Pvt. Ltd. has repudiated the claim of the claimant due to the claimant’s pre-existing disease and due to congenital external anomaly. According to their opinion, the claimant is not entitled to get any relief from the Forum as well as from the “ The Oriental Insurance Co. Ltd.”]
The case is disposed of exparte as against OP No.1 as none appears on its behalf inspite of service of notice.
On pleadings of both points the following points have raised for effective disposal of the case.
1.Weather the petitioner is a ‘Consumer’ in terms of sec 2(1) (d) of C.P Act?
2. Whether the service of the Insurance Company suffers from deficiency?
3. Weather the petitioner is entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Point No-1
The sec 2(1)(d) of C.P act defines the word ‘Consumer’. Consumer means any person who hires any services for consideration. ‘Service’ means service of any description which is made available to potential users and includes the provisions of facilities in connection with Insurance as defined in clause (0) of sub-sec (1) of sec.2 of the Act .
Having regard to the facts and circumstances of the case, there can be no dispute that the complainant has hired the services of the Insurance Company in c/w Insurance, for consideration which is evident from Exhibits 1 2 & 3 which continued at a stretch from 12.06.2003 to 11.06.2006. There can also be no dispute that the Insurance Company makes available its services in c/w insurance to potential users.
In view of above, there can be no dispute that the complainant has become “Consumer” within the meaning of the Act. which disposes of the present point in the affirmative.
Point No. 2
Specific complaint is that the service of the Insurance Company suffers from deficiency.
It appears that Insurance Company has repudiated the claim on the ground that the nature of illness was pre-existing one for which exclusion Clause 4.8 of the Mediclaim Insurance Policy has been referred to.
P-4
We have heard the ld.advocates on behalf of both the parties and gone through the entire materials available on record.
There is no dispute on the point that the policy in question was valid for the period from 12.06.2003 to 11.06.2006.
There is also no dispute that the petitioner underwent operation in A.M.R.I. Hospital Kolkata, vide Ext.-A wherefrom he was discharged on 03.09.2005.
There is also no dispute on the point that the claim of the petitioner has been repudiated by Heritage Health Services ( Pvt.). Ltd. through Letter dt. 20.01.2006 ( Ext-4) on the ground stated therein alleging therein of having pre-existing disease and also no dispute is on the point that the Insurance Company has relied on the report of consultant physician of A.M.R.I. Hospital,(Ext.-A)
There is also no dispute on the point that in the discharge certificate the diagnosis of the disease of the complainant was shown a ‘Deviated nasal septum to left with chronic rhinopharyngitis with sinusitis for one year.
A bare perusal of the report of Dr. B.K. Roychowdhury vide Ext-A upon which much stress has been laid by the ld.advocate of the Insurance Company that the said doctor has observed that the complainant was suffering with chronic disease for one year. Ext.-A reveals that the disease was chronic rhinopharyngitis but for one year as it reveals from Ext.-A. 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 know. The insured has a duty to disclose and similarly it is the duty of the Insurance Company and its agents and to disclose all material facts in their knowledge since obligation of good faith applies to both equally.
The onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer.
In the instant case the onus of proof that the disease was chronic and there is suppression of fact by the petitioner is on the Insurance Company who could have led direct evidence to prove what it has asserted in the repudiation letter. The Insurance Company, needless to say, has not done so. The Insurance Company has miserably failed to prove the fact that the petitioner was suffering from nasal problem since before issuance of policy in question. There is nothing on record by way of evidence to show that the petitioner has ever taken any treatment prior to the admission in A.M.R.I. Hospital on 31.08.2005.
Admittedly the petitioner has been continuing the Mediclaim Policy since 12.06.2003 to 11.06.2006 and Ext-4 reveals that he was suffering from last one year
P-5
in the remarks column. The date of admission and the inception of the policy appeared to have been erroneously scribed therein. That the petitioner was suffering since before issuance of last policy (Ext-3), no opinion appears to have been taken from their appointed doctor.
Thus, for the reasons stated above, it is held that the Insurance Company is not justified in repudiating the claim of the petitioner.
Hence the point is disposed of in favour of the petitioner.
Point No. 3
In the result, the case succeeds.
Proper fees have been paid.
Hence, ordered
that Malda D.F. Case No. 33/2007 is allowed on contest against O.P. No.2 (The Branch Manager Oriental Insurance Co. B.G. Road, Malda.) and decreed exparte as against O.P. No.1(The Manager, M/s. Heritage Health Pvt. Ltd. Nicco House, 5th floor, 2 Hare Street, Kolkata – 700 001.)
The petitioner do get award for Rs. 17,871/- ( Rupees Seventeen Thousand Eight Hundred Seventy One Only).
Both the O.P. No. 1 and O. P. No. 2 jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which the amount shall carry interest @ 9 % per annum till realization of the aforesaid amount.
Let a copy of this order be given to both the parties free of cost.
