State Consumer Disputes Redressal Commission
Star Health And Allied Insurance Co. Ltd vs Smt.Asha on 27 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA First appeal No.105 of 2014 Date of the Institution: 12.02.2014 Date of Decision: 27.01.2015 Star Health and Allied Insurance Co. Ltd., through its authorized Signatory, # 1, New Tank Street, Vauver Kottam High Road, Nangambakkam, Chennai-600034. ..Appellant Versus 1. Smt.Asha W/o Sh.Deepak Kumar Thareja, R/o H.No.50, Patel Nagar,Tehsil Camp, Panipat (Haryana). 2. Star Health & Allied Insurance Co. Ltd. through its agent, 1168/7, Vij Complex, 2nd Floor, Opposite I.B.College, G.T.Road, panipat-132103 ..Respondents CORAM: Mr.R.K.Bishnoi, Judicial Member Mrs. Urvashi Agnihotri, Member Present:- M.Rajneesh Malhotra, Advocate for the appellant. Mr. D.P.Chhachhia, Advocate counsel for the respondent No.1. O R D E R
R.K.Bishnoi, JUDICIAL MEMBER:
As per complainant her husband obtained medical insurance policy from appellant-opposite parties for the period 19.04.2010 to 18.04.2011 she was not suffering from any ailment before availing the policy. On 22.03.2011 she developed acute pain in the uterus and was admitted at Ahuja Hospital, Panipat where she remained admitted from 22.03.2011 to 28.03.2011 and Rs.70,000/- were spent on her treatment. It was assured by opposite party No.2 that all the expenses of treatment would be reimbursed. As per that assurance medical policy was got renewed. Vide letter dated 23.0-5.2011 her claim was repudiated. Legal notice was also sent, but, to no result.
2. Opposite parties controverted her averments and alleged that Mr.Deepak Kumar Thareja obtained the insurance policy for himself as well as his family members. He was explained about the terms and conditions of the insurance policy including exclusion clause at that time. Complainant was suffering from Fibroid Uterus since more than one year and was aware about the disease, but, was not disclosed at the time of obtaining insurance policy just to get false reimbursement. She was never assured that the reimbursement would be made if policy would be got renewed. Treatment obtained for Fibroid Uterus is not covered for the first two years as per exclusion clause No.3 of the terms and conditions of the insurance policy. There was no deficiency in service on their part and her claim was rightly repudiated.
3. After hearing both the parties, learned District Forum allowed the claim with following observations:-
We hereby allow the present complaint with a direction to opposite party to pay sum of Rs.43,749/- with interest @ 9% per annum from the date of filing the complaint till its realization. Cost of litigation quantified at Rs.2200/- is also allowed to be paid by the opposite party to the complainant.
4. Feeling aggrieved therefrom, the opposite parties have preferred this appeal on the ground that as per exclusion clause No.3 of the insurance policy claimant was not entitled for any compensation or reimbursement for the treatment of Fibroid Uterus with severe anemia.
5. Arguments heard. File perused.
6. Learned counsel for the appellant-opposite parties vehemently argued that they repudiated the claim of the complainant as per clause No.3 of exclusion of insurance policy Ex.R-1 and not clause No.1 pertaining to pre-existing disease. As per clause No.3 she was not entitled for any reimbursement about the expenses on treatment of cataract, hysterectomy for Menorrhagia or fibromyoma, treatment for knee etc. during first two years. In the present case the policy was obtained on 19.04.2010 and she was admitted to the hospital on 22.03.2011, within very first year. The learned District Forum discuss clause No.1 of exclusion pertaining to pre-existing disease, which was not a ground to repudiate the claim. As per discharge summary Ex.R-2 she was suffering from Fibroid Uterus with severe anemia. She fell ill on 24.03.2011 and discharged on 27.03.2011, within one year. Impugned order is altogether against law and be set aside.
7. For convenience sake and ready reference clause NO.3 of Exclusion clause of insurance Policy Ex.R-1 is reproduced as under:-
3. During the first two years of continuous operation of insurance cover, the expenses on treatment of cataract, Hysterectomy for menorrhagia or Fibromyoma, treatment for knew and/or joint (other than caused by an accident ) prolapsed of intervertibral disc (other than caused by accident), Varicose veins and Varicose ulcers. If these are Pre-existing at the time of proposal they will be covered subject to exclusion No.1 above.
As per this clause, it is clear that during the first two years of continuous operation of this insurance cover the expenses on treatment of Fibroid Uterus with severe anemia will not be reimbursed, but, it is the duty of the insurance company to prove that these terms and conditions were explained to the insured when cover note was issued.
In the present case the cover note is Ex.C-1. It is no where mentioned therein that the insured was explained about this exclusion clause. It is no where mentioned thereupon that the terms and conditions of insurance policy Ex.R-2 were supplied to the insured at that very time. In this proposal form, the definition of pre-existing disease and exclusion No.1 were printed with bold letters to attract the attention of the insured. On seeing this cover note a person will think about pre-existing disease and clause 1 of exclusion only. With very small letters clauses, warranties, endorsement, etc. are mentioned. It is opined by Honble National commission expressed in Tata Chemicals Ltd Vs. Skypak Couriers Pvt. Ltd. 558 COL.I,CCL (1996-2005) that small printed matter should be clearly discernible and draw the pointed attention of the consumer, which is missing in the present case.
This proforma is typed in routine and was issued at the initial stage. Insurance policy is issued by the company lateron. In the present case Ops have miserably failed to prove that these terms and conditions were explained to Deepak Kumar who obtained this policy. One Rajneesh Kohli tendered his affidavit Ex.RW1/A on behalf of the Ops. It is no where alleged therein that these terms and conditions were explained to the insured. It appears that this affidavit is typed in a routine just to complete the formality.
It is alleged in the affidavit that complainant obtained this policy alongwith terms and conditions, whereas this policy was obtained by the husband of the complainant and not by her. Had this affidavit been not typed in routine it should have been mentioned therein that husband of the complainant obtained the policy. It appears that averments about obtaining insurance policy alongwith terms and conditions is raised just to complete the formality. It is well settled that the company, who is taking specific plea about repudiation of any claim is to prove that the said clause was explained the consumers. When the Ops have failed to prove this fact they cannot derive any benefit from this exclusion clause.
In these circumstances insurance company cannot repudiate the claim of the complainant, so these arguments are of no avail. Learned District Forum rightly allowed the complaint. Hence, appeal fails and the same is hereby dismissed.
The statutory amount of Rs.25,000/- and Rs.26,200/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision if any.
January 27th, 2015 Mrs.Urvashi Agnihotri, Member, Addl.Bench R.K.Bishnoi, Judicial Member Addl.Bench