Delhi

StateCommission

A/1126/2014

SH. MANISH NARANG - Complainant(s)

Versus

THE ORIENTAL INSURANCE COMPANY LTD. - Opp.Party(s)

VASHUDEV

31 Jul 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  31.07.2018

Date of Decision : 08.08.2018

FIRST APPEAL NO.1126/2014

In the matter of:

 

Manish Narang,

S/o. Shri Satish Narang,

R/o. D-20, IInd Floor,

Nariana Village, New Delhi-110018.                                                            .........Appellant

 

Versus

 

1.         The Oriental Insurance Company Ltd.,

A-26/27 Asaf Ali Road,

New delhi-110002.

 

2.         MD India Healthcare Services,

            TPS Private Limited,

18/13, WEA Ground Floor,

            Ganga Plaza, Karol Bagh,

New Delhi-110005.                                                                            …..Respondents

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1.       Being aggrieved by order dated 10.11.2014 passed by District Forum (Central) in CC No.103/2013, vide which the complaint was dismissed, the present appeal has been filed. Facts that can be gathered from the impugned order are that complainant/ appellant obtained medi-claim insurance policy  for himself, his wife and his daughter from the OP/ respondent, effective for the period 11.05.2012  to 10.05.2013.  His daughter has a complaint of diminishing become both eyes  due to  cataract and surgery was performed on her at Mohan  Eye Institute, Ganga Ram Hospital Marg on 18.09.2012 and 15.01.2013. The complainant lodged a claim for Rs.87,509/-  which was repudiated by the OP on the plea that same was not payable in view of exclusion clauses 4.8 of the policy.

2.       OP contested the case by filing a WS. It justified action for repudiation on the plea that illness of cataract in both the eyes at the young age of 3 years is by birth and is congenital in nature. Clause 4.8 of the policy provides that expenses whatsoever incurred on congenital diseases are not payable.

3.       The District Forum found that terms and conditions of the contract had to be strictly construed and no variation could be made. In doing so it placed reliance on decision of Hon’ble Supreme Court in United India Insurance Vs. Harchand Rai Chandan Lal 2005 ACJ 570. Accordingly the complaint was dismissed.

4.       We have gone through the material on record and heard the arguments. The counsel for the appellant cited a recent decision of Hon’ble High Court of Delhi in RFA No.610/16 titled as M/s.  United India Insurance Company Ltd vs. Jai Prakash Tayyal decided on 26.02.18. The same deals with exactly same  question as to whether genetic disorder can be discriminated in the context of health insurance. Para 4.17 of the policy in cited case provided for exclusion of genetic disorders. After relying upon the decision of Hon’ble Supreme Court in LIC of India vs. Consumer Education and Research Centre (1995) 5 SCC 482 in which it was held that insurance contracts have to stand the test of reasonableness, it was held that exclusion of genetic disorders in all forms would be contrary to public policy. Some of the prevalent medical conditions which affect a large mass of population, including cardiac conditions, high BP, diabetics in all forms can be classified at genetic disorders. The entire purpose of taking medical insurance would be defeated if all genetic orders are excluded.

5.       Finally it was concluded that right to avail health insurance is an integral part of the right to health care and the right to health, as recognized in Article-21 of the Constitution. Discrimination in health insurance based on their genetic disorders or genetic heritage, in the absence of appropriate genetic testing and laying down of intelligible  differentia is unconstitutional. The broad exclusion of genetic disorders is thus not merely a contractual issue between the insurance company and the insured but spills into broader canvas of right to health. Finding of the trial court that a person suffering from genetic disorder under medi-claim insurance  is covered as much as others. Suit was decreed and the decree of the trial court was affirmed by the Hon’ble High Court.

6.       Following the aforesaid dictum of law the impugned order can not be allowed to sustain. Any how since the District Forum did not enter into the merits of the case, it is necessary to remand the case to the District Forum to decide the same on merits.

7.       Accordingly the appeal is accepted, impugned order is set aside and the case is remanded back to the District Forum to decide the same on merits. Parties are directed to appear in the District Forum on 15.10.2018.

8.       Copies of the order be sent to both the parties free of cost.

9.         One copy of the order be sent to District Forum for information.

10.       File be consigned to record room.

 

(ANIL SRIVASTAVA)                             (O.P. GUPTA) 

MEMBER                                               MEMBER (JUDICIAL)nk