State Consumer Disputes Redressal Commission
The Oriental Insurance Company ... vs Vivek Rekhan on 3 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No.945 of 2013 Date of Institution: 20.12.2013 Date of Decision: 03.06.2014 The Oriental Insurance Company Limited, Divisional Office, Opposite Madhu Hotel, Yamuna Nagar through its authorized signatory, B.S. Negi, Regional Manager, LIC Building 2nd Floor, Jagadhari Road, Ambala Cantt Haryana. Appellant-Opposite Party Versus Vivek Rekhan s/o Sh. Ved Parkash Rekhan, 402-Cans Enclave Kila, Gali Than Belapur, CBD Navi Mumbai, permanent address at # 243 R, Model Town, Yamuna Nagar. Respondent-Complainant CORAM: Honble Mr. Justice Nawab Singh, President. Mr. B.M. Bedi, Judicial Member. Mrs. Urvashi Agnihotri, Member. Present: Shri J.P. Nahar, Advocate for appellant. Shri Vivek Verma, Advocate for respondent. O R D E R
B.M. Bedi, Judicial Member:
Delay of 27 days in filing of the appeal is condoned for the reasons stated in the application filed by the appellant.
2. This appeal has been preferred against the order dated October 8th, 2013 passed by District Consumer Disputes Redressal Forum (for short District Forum), Yamuna Nagar.
3. Vivek Rekhan-complainant (respondent) purchased a Medi-claim Insurance Policy, known as Happy Family Floater Policy (Annexure A-4) vide which the complainant, his wife Madhu Rekhan and minor son Vedant Rekhan, were insured for the period from March 30th, 2009 to March 29th, 2010, for a sum of Rs.10.00 lacs each.
4. In June, 2009 the minor son of the complainant fell ill. He was admitted in Ashirwad Hospital, Yamuna Nagar from where he was referred to Chaitanya Hospital, Sector-44-C, Chandigarh. He (complainants son) remained admitted in Chaitanya Hospital Chandigarh from June 20th, 2009 to June 28th, 2009. The complainant spent Rs.86,694/- on the treatment of his minor son. However, his claim was repudiated by the appellant-opposite party vide repudiation letter dated October 6th, 2009 (Annexure A-3), stating therein as under:-
As per documents the disease was contracted since the age of 2.5 Yrs and the date of commencement of the policy is 30.3.09. So, the disease is pre-existing and not payable as per condition No.4.1 of the policy, which please note.
5. Complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.
6. Vide impugned order, the District Forum accepted complaint observing as under:-
.we hereby allow the complaint of the complainant and respondent is directed to pay Rs.86694/- to the complainant alongwith interest @ 12% per annum from the filing of this complaint till its payment and further to pay Rs.5000/- for litigation expenses, within 30 days after preparation the copy of this order, failing which complainant is at liberty to initiate proceedings under section 25 and 27 of the Consumer Protection Act, against them.
7. The solitary contention raised on behalf of the appellant is that the disease suffered by complainants son was pre-existing and therefore as per condition No.4.1 of the Insurance Policy, the complainant was not entitled for any claim. Reference was made to Discharge Summary Annexure A-5, wherein the treating doctor has stated as under:-
The child is a known c/o asthma, has episodes every 4-6 months (though none of the past episodes was of serious nature and required hospitalization). The child has received prophylactic treatments in the past twice at 2 yrs and then of 5 yrs of age) for approximately 6 months each.
8. The contention raised on behalf of the appellant is baseless in the context of condition No.4.1 of the Insurance Policy, which reads as under:-
4.1 Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/not declared in the proposal for), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 4 years of this policy being in force continuously.
9. In the case in hand, the appellant-opposite party has failed to produce on the record any proposal form submitted by the complainant with respect to the policy in question to show that the assured had given false answers to the questions. Oral version cannot take the place of proof unless supported with some documentary evidence.
10. Even otherwise, the complainant in para No.12 of the complaint has specifically mentioned that the respondent never supplied the terms and conditions or any exclusion clause, which was being invoked to the disadvantage of the complainant, and in corresponding para of the reply, the Insurance Company has vaguely denied without pointing out as to in which manner and on which date the terms and conditions were supplied to the complainant. Unless the terms and conditions have been supplied to the complainant before taking the policy, the same cannot be enforced.
11. Honble Apex Court in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. (2000) 2 SCC 734 held as under:
It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and the good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.
12. In the above cited judgment Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. (Supra), Honble Supreme Court held that Exclusion Clauses, which are not explained to the insured, are not binding to the insured and are required to be ignored. The Court in para 9 held as under:
9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission 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.
13. In view of the above, it cannot be termed a case of concealment on the part of the complainant and consequently the Insurance Company cannot invoke exclusion clause against the respondent-complainant. No case for interference in the impugned order is made out.
14. Hence, the appeal is dismissed being devoid of any merit.
15. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondent-complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
Announced:
03.06.2014 (Urvashi Agnihotri) Member (B.M. Bedi) Judicial Member (Nawab Singh) President CL