(Delivered on 22/09/2016)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed  by the original complainant  against the order dated 27/05/2009, passed in consumer complaint No. 04/2009, by the District Forum, Buldhana, by which complaint has been dismissed.  

2.         The facts in brief giving rise to the present appeal are as under:

            The original complainant  who is appellant herein  had obtained  health policy  under name and style as  Medi Guard Policy from the opposite party (for short O.P.) Nos. 1&2 for the period  from 21/05/2007 to 20/05/2008. He was admitted  in hospital  on 03/09/2007 as  he was not feeling well. On that date angiography on him   was performed  by the doctor and  angioplasty was also done. He incurred total  expenses of Rs. 2,37,603.90 for the said treatment.  Therefore he submitted claim for  said amount  to the O.P.Nos. 1&2. They repudiated that claim. Hence  the complainant  filed  the consumer complaint before the Forum claiming  aforesaid amount  with interest, compensation  and cost.

3.         The O.P.Nos.1& 2 /respondents herein appeared before the Forum and filed reply and thereby resisted the complaint. They admitted that they issued policy  to the complainant  as stated in the complaint for the period  from 21/05/2007 to 20/05/2008 . They relied on policy condition Nos. 4.2and 4.3 are   the exclusion clauses. They submitted that as per said exclusion clauses they repudiated the claim.  They thus  requested that complaint may be dismissed.

4.         The District Forum below   after hearing both the parties and considering evidence brought on record   passed the impugned order on  27/05/2009 and thereby dismissed the complaint. The Forum observed in the impugned order that  the  complainant was suffering from  heart disease  since prior  to obtaining policy  and therefore the O.P.Nos. 1&2 are not liable to pay an amount of expenses incurred by him for treatment as per policy condition Nos. 4.1 and 4.3. Therefore, the Forum held that the O.P. Nos. 1&2 have rightly repudiated the claim.

5.         Felling aggrieved by that order, the original complainant has filed this appeal. We have heard learned advocate Mr. Bhisikar appearing for the complainant /appellant  and learned advocate Mr. Kukday appearing for the O.Ps./respondents. We have also  perused the papers placed before us.  The exclusion  clause No.4.1 relied on by the O.Ps./respondents  is  pertaining to  the  pre-existing  disease when the cover incepts for the first time. The exclusion clause No. 4.3 shows that  during the first year of the operation of the policy, the expenses on treatment of diseases  such as  Cataract, Benign, prostatic, Hypertrophy, Hysterectomy  for Menorrhagia, or  Fibromyoma, Hernia, Hydrocele, Congenital internal disease, Fistula in anus, Piles, Sinusitis   and related disorders  are  not payable and it also provided if these diseases (other than congenital internal disease) are pre-existing  disease at the time of proposal,  they  will not be covered even during subsequent  period  of renewal. If the insured is aware of the existence  of congenital internal disease before inception of policy , the same will be treated as pre-existing.

6.         The learned advocate of the  complainant submitted that there is no evidence to show that the complainant  was aware of his disease when he  obtained  the policy.  He further  submitted that  these clauses  are not attracted in the present case and that the Forum has erred in dismissing the complaint.

7.         On the other hand,  the learned advocate of the O.Ps./respondents  relied on the aforesaid clause  and submitted that  the Forum has rightly considered  the said clause and rightly came to the conclusion  to dismiss the complaint.  

8.         In our view, clause Nos. 4,1, 4.2 and 4.3 are not  attracted in the present case. There is no evidence  to show that  the complainant was aware of the heart ailment prior  to or at the time of obtaining  policy. Therefore, the clause No. 4.1 about pre-existing  disease  is not applicable  to the present case. Moreover, the clause No. 4.2 which is relating to  the ailment  during first 30 days from the  commencement  date of the policy is not applicable to the present case. The clause No. 4.3  as specified in paragraph No. 5 above does not include  the heart ailment  suffered by the complainant.  Therefore,  all the said clauses are not applicable  to the  ailment suffered by the complainant.  

9.         The Forum therefore erred in relying on the said exclusion clauses  and there  by dismissing the complaint. We hold that  the case of the complainant is not covered under any  of the exclusion clause  of the policy referred  to above. The complainant has incurred  total expenses  of Rs. 2,37,603.90 claimed by him.  He has produced documents relating his treatment  and aforesaid expenses  incurred by him for aforesaid  ailment. Therefore, we hold that  the O.Ps. /respondents  have  rendered deficient service  by repudiating  the claim of the complainant/appellant. Accordingly, we proceed to pass the following order.

ORDER

i.          The appeal is  partly allowed. 

ii.          The impugned order is set aside.  Complaint is partly allowed as under,  

iii.         The O.P.Nos. 1&2/respondents  jointly and severally shall pay to the complainant /appellant Rs. 2,37,603/- with interest at the rate of 9% p.a. from the date of complaint i.e. from  06/01/2009 till its realization  by him.

iv.        The O.P. Nos. 1&2/respondents  jointly and severally shall also pay compensation of Rs. 10,000/- for physical and mental harassment  and cost of Rs. 5000/- to the complainant.

v.         Copy of order be  furnished  to both the parties, free of cost.