4.2 " any disease other than those stated in clause 4<br /> contracted by any insured person during the first 30 days<br /> from the commencement date of the policy. The <br /> Exclusion shall not however, apply if in the opinion of <br /> Panel of Mediclaim Practitioners constituted by the <br /> Company for the purpose, the insured person could<br /> not have known of the existence of the Disease or <br /> any symptoms or complaints thereof at the time of making the <br /> proposal for insurance to the Company. The condition 4.2<br /> shall not, however, apply in case of the insured person<br /> having been covered under this scheme or group <br /> insurance scheme with any of the Indian Insurance <br /> Companies for a continuous period of preceding 12 months<br /> without any break.<br /> It is further made clear that Exclusion 4.1 and 4.2 shall not however apply if<br /> a) In the opinion of a Panel of Medical Practioners constituted by the Company for the purpose, insured person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the Company..<br /> AND<br /> b) the insured had not taken any consultation, treatment or medication, in respect of the hospitalisation for which claim has been lodged under the policy prior to taking the insurance.<br /> 8. It is relevant to state that complainant has been earlier insured for mediclaim with the Insurance Company from Sept.98 to Sept.99 Ex.C12 and further from Jan.2K to Jan.2001 Ex.C13 and even for the period Jan.2007 to Jan.2008 Ex.C15.. The reason assigned in the repudiation letter dated 7/3/07 Ex.C4 is that as per policy sent, he had policy since 28/3/2001 he has history of infarct in 2000. Therefore, his ailment is pre-existing present policy and claim stands repudiated under clause 4.1. However, in our considered opinion opposite party Insurance company failed to establish alleged pre-existing disease of DM with HTN with acute massive intracerebral bleed prior to his insurance. The insurance Company seems to have been swayed with the words in the discharge summary as " H/o infarct in 2000 in (Rt) Basal Ganglia with (Lt) hemiparesis and was on Tab. Preva since then" without support of any past medical record of the complainant having been diagnosed or treated by any physician. We cannot be oblivious of this fact that complainant has been taking mediclaim policy from the opposite party since the year 2K but surprisingly we do not find any evidence produced by the opposite party which may disclose pre-existing disease of the complainant treated for DM with HTN. The word "existing " means the disease which exists at or immediate prior to taking the policy or immediate at the time of taking the policy and the Insurance Company should have insured that person in whose favour policy was being renewed/revived was entitled for the same or not and failure to which indicates contributory negligence on the part of opposite party. Insurance Company has also utterly failed to prove on the record any evidence to show that complainant ever admitted in any hospital for the diagnosis of DM, HTN and for treatment of the alleged diseases. He was proved to be hospitalised for the first time in vasal hospital, Jalandhar and Batra hospital, New Delhi for treatment of these diseases. They have further failed to bring any documentary evidence that complainant has claimed any amount from the year 2K to 2005 i.e. time since he had been purchasing mediclaim policy regularly from the opposite party.<br /> 9. Much has been urged by counsel for th opposite party that patient has history of brain infarct since the year 2000 and as such disease existed pre-existing policy inception period i.e. 28/3/2001 and as such taking of the insurance after suffering first stroke is presumptive proof of malafide of the complainant as he had the conscious knowledge of the disease. This line of his argument in our opinion is untenable because Dr.Sanjay K.R.Chaudhary in Batra hospital clarifies vide his certificate Ex.C5 that patient Pritpal Singh was admitted in emergency as a case of acute brain hemorrhage for the first time in his life. Earlier stroke suffered in 2000 was ischaemic in origin and has no relation to the brain hemorrhage suffered in October 2006.. So repudiation of the insurance claim of the complainant on the basis of condition 4.1 of the Exclusion clause was absolutely unreasonable and arbitrary on the part of Insurance Company. Reliance is also placed upon the case of our Hon'ble State Commission reported as Oriental Insurance Company Ltd. vs. Chain Singh and another 2006 CTJ (SCDRC) page 903 in which it was clearly held that :<br /> XX XX XX<br /> "The Insurance Company i well within the right<br /> to repudiate a mediclaim if it can show that <br /> the disease was pre-existing at the time of <br /> incept of the initial mediclaim policy. If it cannot<br /> so show, the repudiation of the claim will be wrong."<br /> XX XX XX<br /> It was further held therein that clause 4.1 of the policy would not apply if the insured had not taken consultation, treatment or medication with respect to the disease causing to be hospitalised. . It is further pertinent to note below Exclusion clause 4.1 and 4.2 which envisaged that clause 4.1 and 4.2 shall not apply if in the opinion of Mediclaim Practitioners appointed by the Insurance Company the insured person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the Company.. No such opinion was taken by the Company from their appointed doctor if patient had conscious knowledge of disease. The Insurance Company has not filed any proposal form so as to determine material concealment of any such pre-existing disease of the patient Prithpal Singh and his conscious knowledge thereof. As already observed Insurance Company has miserably failed to substantiate the allegation of pre-existing disease of brain hemorrhage DMwith HTN with any credible evidence of past diagnosis and treatment prior to his admission in Vasal hospital, Jalandhar or Batra hospital, New Delhi. Admittedly complainant was earlier never diagnosed or treated for the present diseases by these hospitals nor any other hospital prior to his first time hospitalization. Regarding reimbursement of medical expenses incurred in the medical treatment by the complainant, it is specifically stated in para-12 of the complaint that bills to the extent of Rs.1,85,000/- were submitted to the Insurance Company but the claim has been confined only to the insurance amount of Rs.1,50,000/- as per insurance policy Ex.C2, so we hold entitlement of complainant to the amount of Rs.1,50,000/-.<br /> In the ultimate analysis of aforesaid discussion, we accept this complaint and direct the opposite parties to pay amount of Rs.1,50,000/- as insurance amount alongwith interest @ 9% p.a. from the date of repudiation i.e. 7/3/07 till its realisation and Rs.4000/- as monetary compensation for mental agony and physical harassment due to deficiency in service and Rs.1000/- as costs of litigation which would be paid by the opposite parties within a period of one month from the receipt of copy of this order.<br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Surinder Mittal ) ( A.K. Sharma )<br /> 17.4.2008 Member President.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />