ORDER

SH. RAKESH KAPOOR, PRESIDENT

   In brief the case of the complainant is that he had entered into an insurance contract with the OP vide mediclaim policy number 311300/48/02/00046 on 12-4-2002 to midnight of 11-4-2003 for a sum insured for Rs. 3 Lacks under the policy after verification of his health status,  at the age of 45 years and kept on renewing the mediclaim policy on year to year till 2012-2013.  It is alleged by the complainant that on 26.3.2010, he had undertaken pathological tests required by the OP for the purpose of enhancement of the amount of mediclaim policy which revealed that the creatinin level of the complainant was “2.8”.  It is further alleged by the complainant that on 26.4.2010 Dr. Vijay Kher of Medanata  Hospital had conducted a series of tests on him and after receiving the reports diagnosed the complainant as a case of ADPKD, CKD  and HTN and had prescribed medicines. On 11.9.2012,  he was advised to undergone kidney transplant and was admitted to the hospital on the same day.  It is alleged by the complainant that his wife donated  the kidney and he was operated upon on 12-9-2012 and was discharged from the hospital  on  20.9.2012. It is alleged that a claim was lodged by the complainant on 8.11.2012 which  was repudiated by the OP vide  letter dated 19.11.2012. The complainant again requested the OP to reconsider his claim on the ground that it had previously  paid claims for the same disease to various other people but to no avail.  Hence, the complaint.

  The OP has contested the complaint and has filed his written statement. In the written statement OP has denied any deficiency of service on its part. OP has admitted that the complainant was holding mediclaim insurance policy from it  and the contract was extended from year to year on the representation by the complainant that he was not suffering from any ailment. The OP has stated that during the subsistence of the policy the complainant was admitted in Medanata Hospital. The OP has also admitted that the complainant was investigated and diagnosed as a case  ADPKD, CKD  and HTN and had undergone kidney transplant on 12-9-2012 with his wife as donor and was later managed conservatively and was discharged after recovery/ follow up advice.  It is submitted by the OP that the claim submitted by the complainant on account of hospitalization was examined and the TPA of the OP observed that the complainant was suffering from Haematuria/ swelling of legs and raised Blood Pressure since 3 years and the claim was repudiated by the OP as it did not fall within the purview of the policy since the complainant had obtained treatment for genetic disorder which was not payable as per clause 4.4.16 of the policy. A portion of the para 1 of the preliminary objections filed by the OP is relevant for the purpose of decision of the present complaint and is reproduced as under:-

As per medical history ADPKD : This disease is caused by a mutation in a single gene. A gene carries a code for a protein, and polycystic protein becomes abnormal if the gene is mutated. Most mutations run in families, and occasionally a new mutation occurs in a person without a family history of ADPKD. This gene and its protein are important in controlling proper cell growth and     development. When the gene is mutated, this growth process goes awry, and cells form abnormal cysts. As per the medical record due to the above disease there is a high blood pressure, the patient has blood in the urine then he may suffer chronic blank or back pain may have also acute pain which may relate to kidney infection or stone or cyst rebture. Since the complainant was noticed to be suffering from all these ailments accordingly the claim was found not admissible under clause 4.4.16 of the policy and same was repudiated.

The OP has contested the complaint on merits and has prayed for the dismissal of the same.

   In the evidence ,the complainant has reiterated the contents of the complaint by way of affidavit. The OP has also corroborated the contents of the written statement  by way of affidavit in the evidence and has  placed on record terms and conditions of the policy along with other documents.  

  We have heard arguments advanced at the bar and have perused the record.

Some of the facts are not in dispute. The complainant was holding a valid mediclaim  policy issued by the OP when he was admitted in Medanata Hospital. He was diagnosed as a case of ADPKD, CKD  and HTN and had undergone kidney transplant and was discharged on 20.9.2012. The sole question  for consideration before us is as to whether OP was justified in repudiating the claim of the complainant on the plea that the claim does not fall within the purview of the policy. Exclusion Clause  4.4.16   of the policy is relevant and  it is reproduced as under:

Exclusion Clause : 4.4.16 Genetic Disorders and stem cell implantation/ surgery.

As per medical history ADPKD is a genetic disorder which is caused by mutation of the single gene. This gene and its protein are important in controlling proper cell growth  and development. As this gene was mutated  growth process of kidney cells went awry and cells formed abnormal cysts  and hence the complainant suffered from high blood pressure , hematuria (blood in urine) and kidney infection. The case of the complainant is therefore covered under the exclusion clause.  

      There is nothing on record to hold that the claim was given to other persons suffering from ADPKD as mentioned by the complainant.

 In the case of United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (2005 ACJ 570), the Hon’ble Supreme Court has held that the terms and conditions of the contract have to be strictly construed and no variation can be made there from.

In view of the judgment cited by us above and facts and circumstances of the case we are constrained to hold that there are no merits in this complaint and the  claim was rightly repudiated by the OP.  we   therefore  hold that there is no deficiency in service on part of the OP in repudiating the claim. Accordingly, the complaint is here by dismissed.

Copy of the order be made available to the parties as per rule.   File be consigned to record room.

     Announced in open sitting of the Forum on.....................