Complainant Harish Kumar through the present complaint U/S 12 of the Consumer Protection Act 1986 (hereinafter for short the Act.) has prayed for issuance of necessary directions to the opposite parties (the OP insurers) to pay the insurance claim amount of Rs.43,227/- along with interest @ 18% P.A. besides Rs.10,000/- as compensation for causing mental pain, agony and harassment and Rs.5,000/- as costs of litigation, all in the interest of justice..

2.       The case of the complainant in brief is that he is having PNB-Oriental Royal Medi claim Policy Schedule bearing Policy No.233106/48/2012/26 from the OP insurers valid from 24.5.2011 to midnight of 11.5.2012 (instead of 23.5.2012) for one year. He, his wife Shruti and son Vansh Kumar were covered under the said policy for Rs.3,00,000/- and he is paying premium regularly. His wife was admitted in Patel Hospital, Jalandhar on 22.3.2013. She was suffering from Right Renal Calculus (infective Stone) (Matrix Stone) and she remained there under the treatment of Dr.Swapan Sood and Dr.Suresh Aggarwal and remained there till 23.3.2013. There is no nexus between concealment of facts and the abovementioned disease. He filed the medi claim bill for Rs.43,227/- on 1.4.2013 to the opposite party no.2. He had approached the opposite party number of times for making payment of medi claim of the said Shruti but of no use. Ultimately they repudiated his claim vide letter dated 30.5.2013. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.      Upon notice, the opposite parties no.1 & 2 insurers appeared through their counsel and filed their written reply taking the preliminary objections that the complainant is not entitled to any insurance claim as the complainant with held material information in respect to his wife’s pre existed disease at the time of taking abovesaid insurance policy. The claim of the insured does not fall within the purview of the policy terms and conditions. The claim is not covered/payable as per terms and conditions of PNB-Oriental Royal Medi claim Insurance Policy. The complainant took first policy for a period from 24.05.2011 to 11.05.2012 under policy no.233106/48/2012/26 issued by B.P.Kapurthala. Subsequently the policy was obtained from 04.06.2012 to 03.06.2013 i.e. after a gap of 23 days which disentitles the continuance insurance. Hence policy no.233106/48/2013/91 become first Insurance Policy as the deceased is having waiting period of 2 years. The claim of the claimant was repudiated on 24.04.2013 by the Medi Assist India TPA Pvt.Ltd. on the ground that it falls under Exclusion 4.2 of the terms and conditions of PNB-Oriental Royal Medi claim Insurance Policy; the present complaint is hopelessly time barred under Section 24-A of the Act; the complaint is not maintainable and the complaint is without any cause of action, hence liable to be dismissed. On merits, it was submitted that during the subsistence of policy no.233106/48/2012/26 the claimant Mrs.Shruti was admitted in Patel Hospital, Jalandhar on 22.3.2013 with chief complaints of pain abdomen and fever off and on since December 2012. She has no voiding dysfunction. She has history of LSCS done in October 2009. The ailment wad diagnosed as Right Renal Calculus (infective Stone). The claimant had undergone Percutaneous Nephrostomy Right Side with JJ stunting under spinal anesthesia on 22.3.2013. The insured Mr.Harish Kumar incurred a sum of Rs.42,884/- towards medical expenses during admission period of his spouse Mrs. Shruti. The complainant is not entitled to any insurance claim as the complainant with held material information in respect to his wife’s pre existed diseases at the time of taking abovesaid insurance policy. The claim is not covered/payable as per terms and conditions of PNB-Oriental Royal Mediclaim Insurance Policy. The claim of the claimant was repudiated on 24.04.2013 by the Medi Assist India TPA Pvt.Ltd. and it falls under Exclusion 4.2 of the terms and conditions of PNB-Oriental Royal Medi claim Insurance Policy. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.        Notice to the opposite party no.3 was issued in regard to the complaint filed by complainant. However, the same was not received back served or un-served. After waiting for the period of 30 days opposite party was proceeded against exparte on 13.7.2015 as none come present on behalf of the opposite party no.3.

5.        Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 alongwith other documents exhibited as: Ex.C2 to Ex.C17 and closed the evidence;

6.       Sh.Suraj Mehta A.O. of Oriental Insurance Company tendered into evidence his own affidavit Ex.OP1,2/1 along with the other documents exhibited as: Ex.OP1,2/2 to Ex.OP1,2/5 and closed the evidence.

7.         We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute has prompted from the OP’s claim repudiation of 30.05.2013 (Ex.C4) in response to the complainant’s insurance claim for reimbursement of the hospitalization expenses incurred by him upon the medical treatment of his wife Smt. Shruti. Further, the OP insurers have duly admitted in the written statement & in its affidavit (Ex.OP1, 2/1) that the impugned insurance claim was repudiated/ refused at the instance of the OP3 TPA (Third Party Administrators) vide Ref. # 2764959 on 24.04.2013 (Ex.OP1, 2/4) under Exclusion clause 4.2 of the Policy Terms & conditions (Prospectus Ex.C5) but made available to the complainant along with the repudiation (Ex.C4) of 30.05.2013, only. Somehow, the prospectus Ex.C5 requires at its page ‘16’ the insured’s acceptance of its terms and conditions along with his name, place and date etc. The OP insurers have failed to produce the duly acknowledged (signed) prospectus confirming the acceptance of the terms & conditions (including its ‘exclusionary’ clauses). In the absence of the above ‘acceptance’ (amounting to ‘pre-notice’) the complainant shall not be bound by an adverse term of the Policy. The above legal proposition also derives its ‘legal-force’ from the orders of the honorable apex court in Modern Insulators Ltd., vs. Oriental Insurance Company Limited; (2000) 2 SCC 734 as: “9. In view of the settled position of law we are of the opinion that the view expressed by the NCDRC is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law”. Further, as per the clause ‘6’ of the prospectus the policy is issued for a period of one year whereas period of Ex.C2 Policy # 233106/48/2012/26 is indicated as: From 11:13 On 24.05.2011 To Midnight of 11.05.2012 and the learned counsel for the OP insurers could not explain the logic/ reason for the same. However, the Collection No. & Date as given underneath: CHQ 2107000207 - 24.05.2011 indicate that the ‘start date’ has been postponed to commensurate with the premium cheque date otherwise as per the ‘end-date’ and ‘one-year’ issue-period it should have been ‘from 12.05.2011 to 11.05.2012 and that consequentially gives rise to the inference that the ‘Policy’ was continuing since the year 2010-11 and from which it continued to the year 2012-13 (though with ‘late-premium’ paid  gaps) to cover the date of hospitalization i.e., medical treatment pertaining to the ‘impugned’ claim. And, by virtue of the Hon’ble NCDRC decision in RP No. 1362 of 2008 titled: The Oriental Insurance Co Ltd., vs. Madan Kumar Dutta; it has since been held that ‘Break in renewal’ therefore, cannot be made ground to deny the claim by invoking clause 4.3. The insurance cover shall not be available during the ‘grace period’ but it shall not cause a ‘break’ in the continuity of the Policy. Lastly, the OP pleading of the complaint being ‘time-barred’ also does not hold water since the repudiation dates back to 30.05.2013 (Ex.C4) and the present complaint gets instituted within the limitation period of ‘two’ years i.e., on 28.05.2015. The OP insurers’ impugned repudiation of the insurance claim does not entail legality under the applicable law and need be set-aside.     

8.       In the light of the all above, we partly allow the present complaint and thus ORDER the OP insurers to pay the impugned insurance med-claim with full Hospitalization Benefits as applicable under the related Policy to the complainant besides Rs.3,000/- as compensation (for the harassment inflicted) and Rs.2,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment. 

9.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                    (Naveen Puri)

                                                                                        President     

ANNOUNCED:                                                    (Jagdeep Kaur)

December 11, 2015.                                                            Member.

*MK*