Heard learned counsel for the appellant.

2.           Captioned appeal  is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.           The case of the complainant in nutshell is that the complainant has purchased a Mediclaim policy for self, wife and two sons from the opposite party no.1. The policy was purchased for the period from 28.1.13 to midnight 27.1.2014 The said policy is known as PNB Oriental Royal Mediclaim Policy. Necessary fees has been paid by the complainant for purchasing such policy.

4.          It is alleged inter alia that the wife of the complainant namely, Anita Behera was admitted to KIMS Hospsital, Bhubaneswar on 4.6.2013 due to chronic cholecystisic as a indoor patient and operated there and discharged on 14.6.2013. For this the complainant spent Rs. 34,364/- for the treatment of his wife. The complainant himself also admitted in the same hospital on 10.6.2013 for treatment of Type-II Diabetes and discharged on 14.6.2013 and  spent Rs. 4148/- for his treatment. The complainant and his wife being insured under the Family Mediclaim  Policy filed a claim application before the opposite party no.1 for disbursement of the amount spent for treatment on 18.6.2013 but the said opposite party did not issue any acknowledgment for the same. Thereafter, the complainant submitted detail documents to opposite party no.3 who is the Customer Service Department of opposite party no.1. Unfortunately, opposite party no. 2 repudiated the claim for hospitalization of Anita Behera on the ground that there was two years waiting period for cholecystisic but in the instant case the claim is made in  running first year on policy. The complainant alleged that repudiation of the policy being deficiency of service on the part of the opposite party, he filed the complaint.

5.          On the other hand, opposite party filed the written version stating that the complaint case is not maintainable. It is also claimed that the claim of the complainant has been repudiated after due application of mind and  after taking all the facts and circumstances of the case. It is also averred that policy was issued being valid from 28.1.2013 to Midnight of 27.1.2014 subject to terms and conditions of the policy. It is further averred that during the first year of policy, the complainant lodged a claim on 18.6.2013 claiming Rs. 34,364/- towards medical expenditure incurred by him for treatment of his wife Anita Behera who was treated as an indoor patient from 4.6.2013 to 14.6.2013 in the KIMS Hospital, Bhubaneswar due to chronic Cholecystisic. The opposite party took further plea that on receipt of claim intimation, the opposite party no.3 called upon the complainant to submit documents as required. After receipt of the document, opposite party no.3 found that the complainant was suffering from  chronic Cholecystisic. As per the policy condition, exclusion clause 4.2, two years waiting period is necessary for Cholecystisic disease. The claim being made by the complainant for the first year is not covered by the Policy being made under exclusion  Clause 4.2., opposite party no.2 has repudiated the claim.

6.          After hearing both the parties, learned District Forum have passed the following order:-

                “In the result, the complaint petition is allowed on contest against the opposite parties. The opposite parties are directed to pay a sum of Rs. 38,512/- to the complainant towards medical expenses under the mediclaim policy and further directed to pay a sum of Rs. 2000/- as compensation for mental agony and harassment and Rs. 1000/- as litigation cost within two months from the date of this order, failing which complainant is at liberty to proceed against the opposite parties under Sections 25 and 27 of the C.P.Act, 1986”.

7.          Learned counsel for the appellant submitted that the learned District Forum committed error in law by not verifying the policy in question and the documents filed by the complainant. He submitted that since there is exclusion clause 4.2 which states that there was two years waiting period for cholecystisic, to accept the claim, the wife of the complainant being treated in the first year of the mediclaim policy, the learned District Forum committed error in law by not rejecting the claim as it is  coming within the exclusion clause of the insurer. He further submitted that the learned District Forum should have applied judicial mind to the facts and circumstances of the case. Accordingly, the impugned order passed by the learned District Forum is illegal and be set aside. 

8.          Considered the submissions, perused the impugned order and DFR.

9.          It is admitted fact that the complainant, his wife and two children have purchased the mediclaim policy for them from the opposite party n.1 through opposite party no.3. It is also not in dispute that the opposite party has repudiated the claim by citing the exclusion of Clause 4.2 of the policy condition. It is also not in dispute that the complainant has submitted all the documents and cash memos to avail the claim rerimbursement under the policy.

10.        The only question arises in this case is to find out as to whether clauses of the policy has been served to the complainant or his wife, insured and they excluded the case of complainant’ wife.

11.        Exclusion clause 4.2 of Policy submitted by the learned counsel for the appellant is as follows:-

4.2.       The expenses on treatment of following ailment/diseases/surgeries for the specified period are not payable if contracted and/or manifested during the currency of the policy. If these diseases are pre-existing at the time of proposal the exclusion no.4.1 for pre-existing condition shall be applicable in such cases.

11.        With regard to the diseases, it appears that said disease has been excluded by clause xiii of the Table appended to Clause 4.2. for two years. When the policy is for one year, the question of application of exclusion clause does not arise. Moreover, such exclusion clause has not yet been proved by the appellant to have been served on the complainant or his wife. On the other hand, the complainant is totally dark about the exclusion clause.

12.        It is reported in the judgment of Hon’ble Supreme Court of India in M/s. Texco Marketing Pvt. Ltd. Vrs. TATA AIG General Insurance Company Ltd. & Ors, disposed of on 9.11.2022 where Their Lordships at paragraph-14 observed as follows in the following manner.

                “14. The principles governing disclosure, good faith and notice are founded on the common law principle of fairness. These principles are meant to be applied with more rigour in standard form contracts such as insurance contracts. Such an application is warranted such more when we deal with an exclusion clause. A very high standard of good faith, disclosure and due compliance of notice is required on the part of the insurer, keeping in view the unique nature of an insurance act.”

13.        With regard to the aforesaid decision, if the exclusion clause of the Policy is not served to the insured, the insurer cannot take benefit of the same. Since in the instant case, it is observed by the learned District Forum, also we find that the exclusion clause or the terms of the policy condition has not been specifically disclosed to the complainant. Therefore, it is not possible to repudiate the claim on that ground. Besides, the nature of the insurance policy is not covered by clause 4.2 of the exclusion clause of the policy concerned. 

14.        In view of the  aforesaid discussion, we are of the view that as per the insurance policy the complainant, his wife and his two children can avail the mediclaim policy. Moreover, the plea of the counsel for the appellant is that in one case, they have allowed the reimbursement to complainant because it is a small  amount, but repudiated the claim of his wife which is not understood. Rather, it is unfair treatment on the part of the opposite party to discriminate between two person claiming compensation under mediclaim policy. In view of the above discussion, we are of the view that the impugned order has nothing to be interfered. The same is confirmed.

           The appeal being devoid of merit stands dismissed. No cost.

       DFR be sent back forthwith.

        Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.