National Consumer Disputes Redressal
Jagmohan Bhatia vs Oriental Insurance Co. Ltd. on 4 April, 2003
Equivalent citations: II(2003)CPJ191(NC)
ORDER
B.K. Taimni, Member
1. Petitioner was the complainant before the District Forum where his complaint was dismissed. An appeal filed before the State Commission was also dismissed.
2. Facts leading to filing of this complaint was that the petitioner had a mediclaim policy for the period 8.2.1993-7.2.1994, there was a lapse of seven months after which another policy was issued valid for the period from 15.9.1994 to 14.9.1995. It is during the life of the second policy that the petitioner underwent surgery for 'Benign Prostatic Hyper Trophy.' On a claim being preferred under the policy it was repudiated by the respondent Insurance Company on the ground that this episode falls under the exclusion clause i.e. claims 2.1.13 of the policy which reads as under :
2.2.13 :
"Exclusion for 1st year of policy for treatment of cataract, benign prostatic hypertrophy, hysterectomy for menorrhagia or filtromyoma; hernia, hydrocele, congenital intimal diseases, fistula in anus, plies, sinusitis and related disorders unless such diseases are excluded as pre-existing."
3. It is in these circumstances, that feeling aggrieved by the repudiation by the respondent, a complaint was filed before the District Forum who after hearing the parties dismissed the complaint. An appeal filed by the petitioner before the State Commission met the same fate, hence the revision petition.
4. It is argued by the learned Counsel for the petitioner that his case is not covered by the exclusion clause which has been made the basis of repudiation by the Insurance Company. This was not his first year of policy. In fact, it was case of renewal hence continuation of earlier policy. In support he gave three rasons, one that policy No. of the first policy was 21240/46/37/ 93/215 whereas the number of second policy was 21240/46/37/95/248--first number were the same, hence it need to be deemed to be continuation of earlier policy. Secondly, he drew our attention to the opening words of the policy which read as under :
WHEREAS the insured designated in the Schedule hereto has by a proposal and declaration dated as stated in the Schedule which shall be the basis of this contract and is deemed to be incorporated herein, has applied to the Oriental Insurance Company Ltd. (hereinafter called the company) for the insruance hereinafter set forth in respect of person(s) named in the Schedule hereto (hereinafter called the Insrued Person) and has paid premium as consideration for such insurance.
(Emphasis supplied)
5. In the instant case second policy was issued without making any new proposal form or any test and thirdly in the second policy rebate has been given as is given in the case of renewal of policies. He drew our attention to two judgments passed by this Commission.
6. On the other habnd, it was argued by the learned Counsel for the respondent that the first point raised by the petitioner has no merit as the first number of the policy indicates code number relating to an office. Since, it was the same office which issued both the policies, number had to be the same. All other numbers are different, hence it was a new policy. It was admitted by him in the instant case that no proposal form was received--at least it is not on record. On the third point, it was stated that grant of rebate does not mean it is renewal. What is import is the contract i.e. policy which is for a given period. Earlier policy had completed its life and admittedly there was a gap of 7 months. Under no circumstances it can be termed as a renewal of policy. Repudiation is as per terms of policy. Order of both the lower Forums are as per law. This petition needs to be dismissed.
7. We have seen the material on record and heard the arguments. The only point which needs to be determined is whether the second policy was a case of renewal of policy or issue of a fresh policy ? In our view the number of policy, proposal form or grant of rebate is not a contract, what is crucial is the policy. It is not disputed that earlier policy had completed its life on 7.2.1994 and the second policy was issued valid for 15.9.1994 to 14.9.1995; there is uncovered gap of seven months but what we find contrary to the arguments advanced by the LC of respondent are the opening lines of policy reproduced earlier, Starting point as per these lines is "proposal form and declaration", In the present case neither "proposal form" was obtained nor any "declaration" forming part of the proposal form obtained from the petitioner. It is not disputed that, (1) second policy was issued; (2) it was issued without any proposal form/declaration; and (3) proposal form/ declaration is the basis of the contract--as per terms of the policy. It is not the case of the respondent that by virtue of these documents not being there, this policy was void. If there has to be a proposal form and declaration as a starting point which was not there than on what proposal the second policy was issued ? There is no satisfactory answer available on record or by way of arguments. Deduction is obvious that it was the old proposal form/declaration which would be the basis of this contract". Respondent cannot get away from his responsibility in this case. Grant of rebate, read with having accepted the earlier proposal form as a schedule to make it the basis of contract, only strengthens the argument of the petitioner that it was deemed to be a case of renewal by the Insurance Company, hence the repudiation of claim by taking umbrage under Clause 2.1.12 is not in order, as in view of above, it would be case of second year of the policy and not the first year to justify repudiation of the claim under Clause 2.1.12 of the terms of policy.
8. In view of the above stated position, we are unable to sustain the orders of both the lower Forums which are set aside. The petition is allowed. This respondent Insurance Company is directed to pay Rs. 18,000/- as claimed by the petitioner with interest@ 9% from 15.4.1995 i.e. two months after filing of the claim by the petitioner with the respondent along with costs which we fix at Rs. 3,000/-. These amounts be paid within 8 weeks of the order failing which amount shall carry interest @ 15% p.a.