Delhi District Court
Vipin Tomar vs National Insurance Company Limited on 10 January, 2020
IN THE COURT OF MS. RENU CHAUDHARY,
CIVIL JUDGE03,
TIS HAZARI COURTS, NEW DELHI
CIVIL SUIT NO: 2905/16
VIPIN TOMAR
S/O SH. VIJAY PAL SINGH
R/O FLAT NO. B2,
PLOT NO. C2, SAURAV APARTMENTI,
SHALIMAR GARDEN EXTENSIONII,
SAHIBABAD, U.P.
..... PLAINTIFF
VERSUS
NATIONAL INSURANCE COMPANY LIMITED
REGIONAL OFFICE2: 3031A, 2ND FLOOR,
DAB JEEWAN VIKAS BUILDING,
ASAF ALI ROAD, DELHI
.....DEFENDANT
SUIT FOR THE RECOVERY OF RS.
1,44,750/ ALONG WITH PENDENTE LITE
AND FUTURE INTEREST
DATE OF INSTITUTION : 28.10.2016
DATE OF DECISION : 10.01.2020
JUDGMENT
1. The suit in hand has been filed by plaintiff against the defendant under seeking recovery of Rs. 1,44,750/.
CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 112. Factual matrix of the case, as culled out from a bare perusal of the plaint is as under: That the plaintiff availed the mediclaim policy namely "Parivar Mediclaim" for himself and his family from the defendant vide policy number 354300/48/14/8500002202 dt. 03.02.2014 for the period between 09.02.2015 to 08.02.2016. The insurance cover was of Rs. 5 lacs and the plaintiff paid the insurance premium for the same as Rs. 10,693/. It is averred that the plaintiff, his wife, daughter and son were examined by the doctor and upon examination, the defendant company issued the mediclaim policy to the plaintiff. That on 02.07.2015 the son of the plaintiff namely Anmol Tomar was diagnosed with stage 5 of ROP and had to undergo surgery on 16.07.2015 for which he was admitted on Bharti Eye Hospital. It is the case of the plaintiff that the plaintiff spent a sum of Rs. 1,25,000/ for the said surgery and Rs. 19,750/ on various other tests prescribed by the doctors. It is further averred that when the plaintiff claimed the above said amount from the defendant company, the defendant company refused to reimburse the said amount stating that the congenital diseases are not covered under the scope of the policy. Hence, the suit in hand has been filed with prayer that a decree may be passed for recovery of Rs. 1,44,750/ along with interest @ 18% p.a. from the date of the suit till its realization in favour of the plaintiff and against the defendant.
3. The summons of the suit were duly served upon the defendant.
CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11Thereafter, the defendant company appeared before the Court and filed its written statement wherein the defendant company has denied all the contentions and allegations made by the plaintiff in the plaint. The defendant has interalia stated that the son of the plaintiff is not covered under the mediclaim policy and that the deceased of the son of the plaintiff being preexisting and congenital disease is not covered in the first four years of the policy as per the terms and conditions of the policy. Therefore, it is prayed that the present suit be dismissed.
4. After completion of pleadings, the following issues were framed on 31.10.2017 by the orders of the Ld. Predecessor:
1. Whether the plaintiff is entitled to a decree of Rs.
1,44,750/ alongwith pendente lite and future interest against the defendant, as prayed for? OPP
2. Whether the plaintiff has no cause of action and locus standi to file the suit in hand? OPD
3. Whether the suit in hand is barred by Limitation? OPD
4. Relief.
5. Subsequent thereto, the matter was fixed for plaintiff's evidence. In order to prove his case, the plaintiff examined himself as CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 PW1 and Sh. Ravinder Kumar, Manager Marketing, Bharti Eye Foundation and Hospital as PW2.
6. PW1 tendered his examinationinchief by way of affidavit, which is Ex.PW1/1, bearing his signatures at point A and B reiterating the facts mentioned in the plaint and also relied upon the following documents:
i) i) Ex. PW1/1 i.e. Mediclaim policy dated 03.02.2014.
ii) Ex. PW1/2 i.e. claim form.
iii) Mark 'A' i.e. copy of bill dated 16.07.2015 (running into 2 pages) (colly.).
iv) Mark 'B' i.e. copy of bill dated 02.07.2015.
v) Mark 'C' i.e. copy of bill dated 01.06.2015.
vi) Mark 'D' i.e. copy of bill dated 08.06.2015.
vii) Mark 'E' i.e. copy of bill dated 17.06.2015.
viii) Mark 'F' i.e. copy of bill dated 18.06.2015.
ix) Mark 'G' i.e. copy of Mediclaim policy dated 06.02.2017. The Ex.PW1/2 is deexhibited and now mark 'G'.
During his crossexamination, PW1 deposed in consonance of his affidavit. He deposed that he took the family mediclaim policy from the National Insurance Company Ltd. i.e. the defendant on 03.02.2014 and got the same renewed for the second year on 09.02.2015 for a cover of Rs. 5,00,000/. PW1 further deposed that he got the knowledge about the CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 disease of his son after about 67 months of his birth and that the disease was caused due to over supply of oxygen in the nursery by the doctors due to which his son also suffered a fracture in his left hand. PW1 further deposed that he was told about the said eye disease of his child and its cause by the doctor. It was further deposed that the witness was not informed by the doctor that since when his child was suffering from this disease. During further crossexamination, PW1 stated that his son developed his diseased immediately after his birth due to excess supply of oxygen in the nursery. It was further stated that no medical check up was done by the agent/official of the defendant company before issuing the mediclaim policy and volunteered that only the premium amount was collected on behalf of the defendant company. The witness denied the suggestion that his son had preexisting disease and hence it is not covered under the mediclaim policy. The witness showed his ignorance that as per the terms and conditions of the policy, preexisting diseases are covered under the said policy only after four continuous claim free policy years.
7. Thereafter, the plaintiff examined Sh. Ravinder Kumar as PW2 who was summoned witness who had brought the summoned record i.e. the case summary of the son of the plaintiff issued by Dr. Rajvardhan Azad Ex. PW2/1 (colly four pages). The witness also brought copies of cash/fee receipts issued by Bharti Eye Foundation and Hospital that are CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 Ex. PW2/2 (colly four pages). PW2 was not crossexamined by Ld. Counsel for defendant despite opportunity.
8. Subsequent thereto, the matter was fixed for defendant's evidence but despite opportunities the defendant failed to lead any evidence in support of its defence and the Court was constrained to close the opportunity of the defendant to lead DE.
9. Thereafter, the matter was listed for final arguments and final arguments were advanced by the Ld. Counsels for both the parties.
10. Having drawn my attention to the pleadings, testimony of witnesses and documents on record, Ld. Counsel for plaintiff vehemently argued that plaintiff has successfully proved his case and the defendant is liable to pay the suit amount to the plaintiff. On the other hand, it was submitted by the Ld. Counsel for defendant that plaintiff has failed to prove his case and discharge the onus.
11. Arguments heard. Case file perused.
My Issuewise findings are as under : Issue no. (2) and (3) CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11
2. Whether the plaintiff has no cause of action and locus standi to file the suit in hand? OPD
3. Whether the suit in hand is barred by Limitation? OPD
12. The onus to prove these issues was upon the defendant. However, no evidence was led by the defendant. Defendant neither examined any witness nor placed on record any document in order to show as to how the suit of the plaintiff is barred under the law of limitation and to prove that the plaintiff has no cause of action and locus standi to file the suit in hand. In view of the same, the above said issues are decided against the defendant and in favour of the plaintiff.
ISSUE NO. 11. Whether the plaintiff is entitled to a decree of Rs. 1,44,750/ alongwith pendente lite and future interest against the defendant, as prayed for? OPP
13. The onus to prove this issue was upon the plaintiff. In order to prove his case, plaintiff examined himself as PW1 and deposed in consonance with the contents of the plaint. The plaintiff has proved on record the mediclaim policy dt. 03.02.2014 i.e. Ex.PW1/1 showing that a mediclaim policy was availed by the plaintiff for himself and his family from the defendant company. The said policy is also admitted by the defendant company. Plaintiff has also proved on record the claim form CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 i.e. Ex. PW1/2 showing that his son Master Anmol Tomar was admitted in Bharti Eye Hospital on 16.07.2015 and a sum of Rs. 1,44,750/ was claimed by the plaintiff from the defendant company for the treatment of his son. The plaintiff placed on record the copy of the bills pertaining to the said treatment which are marked as Mark A to Mark G. Thereafter, the plaintiff examined PW2 who brought the case summary of his son i.e. Ex. PW2/1 and the copy of the cash receipts issued by the hospital as fees on account of the treatment of the son of the plaintiff. As per the case summary i.e. Ex. PW2/1 the date of birth of the son of the plaintiff is 27.03.2013. He was diagnosed as ROP in both eyes on 10.07.2013 by Professor Rajvardhan Azad and as per RPC records both eyes underwent laser therapy for ROP. It is further mentioned that the left eye was operated for stage 5 ROP in 2013 and later the right eye was operated on 16.07.2015.
14. The terms and conditions of the mediclaim policy is placed on record by the defendant. As per the exclusions clause 4.1 of the said mediclaim policy, all the diseases/injuries which are preexisting when the cover incepts for the first time are excluded from the scope of the said mediclaim policy and those diseases will be covered only after four continuous claim free policy years. Therefore, it is clearly mentioned in the terms and conditions of the "Parivar Mediclaim Policy" that the pre existing diseases are not covered under the policy and will be covered CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 only after four continuous claim free policy years with the national insurance company. The question for consideration is whether the plaintiff has proved that his sons disease/injury is not a preexisting or congenital disease. The answer is in negative as in the present case, the plaintiff, apart from the Ex. PW1/1 and Ex. PW1/2, have not placed on record any other document to prove that the disease of his son is not a preexisting or congenital disease and was developed only after his birth. Further, even if the said contentions of the plaintiff are taken to be true and correct, still in view of the exclusions clause 4.1 of the mediclaim policy, the said disease will be covered only after four continuous claim free policy years with the defendant company. It is on record and admitted by the plaintiff that the mediclaim policy was taken by him from the defendant company for the first time on 03.03.2014 and was renewed for the second year on 09.02.2015. The son of the plaintiff was diagnosed with the stage 5 ROP in 2015 and was examined and treated for the same in 2015 itself i.e. within two years of mediclaim policy. Hence, the case of the plaintiff is not covered by the mediclaim policy in view of the aforesaid exclusions clause 4.1 of the terms and conditions of the "Parivar Mediclaim Policy" of the National Insurance Policy Ltd.
15. In the absence of any cogent evidence being led by the plaintiff, the initial burden put on the plaintiff is not discharged. The issue is accordingly decided against the plaintiff and in favour of the defendant.
CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 1116. The present is the suit for recovery filed by the plaintiff against the defendant. It is well settled that a suit has to be tried on the basis of pleadings of the contesting parties which is filed in the suit in the form of plaint and written statement and the nucleus of the case of the plaintiff and the defendant emerges out of that in the form of issues. Being a civil suit, the suit has to be decided on the basis of preponderance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra (2009) 13 SCC 729, it was held as under by the Hon'ble Apex Court, "there cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be over lapping but the standard of proof in a criminal case visavis a civil suit, in disputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probabilities" would serve a purpose for obtaining a decree.
17. Examining the case of the plaintiff on the basis of preponderance of probability and in view of the testimony of the witness, the plaintiff has failed to prove his case to be entitled to the decree for the suit CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11 amount.
RELIEF:
18. In view of the aforesaid discussion and specific findings on the above issues, the suit of the plaintiff is hereby dismissed with no orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room, after compliance of necessary formalities. Digitally signed by RENU RENU CHAUDHARY CHAUDHARY Date: 2020.01.10 Announced in the open Court 15:23:32 +0530 on 10.01.2020 (RENU CHAUDHARY) CIVIL JUDGE03 (Central)/THC DELHI Note: This judgment contains of 11 pages and all the pages have been checked and signed by me. RENU Digitally signed by RENU CHAUDHARY CHAUDHARY Date: 2020.01.10 15:23:40 +0530 (RENU CHAUDHARY) CIVIL JUDGE03 (Central)/THC DELHI CS No. 2905/16 VIPIN TOMAR VS. NATIONAL INSURANCE COPMPANY LTD. Page 11 of 11