Date: 01.08.2017

ORDER                                                        

Sh. K.S.Mohi, President

1. The complainant has filed the present complaint against the OP under section 12 of the Consumer Protection Act 1986. The facts as alleged in the complaint that complainant had taken a happy family floater policy  bearing no. 211201/48/2012/800 valid from 16.06.2011 to 15.06.2012 from OP.  The complainant fell sick and was admitted in Sir Ganga Ram Hospital, Rajindernagar, Delhi from 28.1.2012 to 04.02.2012 for treatment of CVA optic neuritis, tubercular, lymphadenitis, hypertension. However the claim was rejected by OP under clause 4.1 of the policy, treating the diseases  as pre-existing one and falling in/during 1^st year of policy.  It has been further stated that the complainant was having uninterrupted mediclaim policies for the last several years and therefore the repudiation of his claim on the basis of exclusion clause 4.1 by OP was unjustified.  It has been further averred that Dr. PK Sethi VSM, MBBS, MD , the treating doctor of the complainant confirmed in reply to OP letter that complainant had no past history of HT /DM/CAD or CVA. The complainant has , therefore, claimed mediclaim of Rs. 1,11,826/- with interest @ 18% and compensation for mental agony Rs. 50,000/- and Rs. 21,000/- as litigation cost.
2. The OP filed reply taking preliminary objections inter-alia  that there was no deficiency in service on its part. Infact, the claim of the complainant falls under exclusion clause 4.1 of the terms and conditions of the policy hence it was not payable. On merits OP admitted the policy issued to the complainant by it. OP prayed for dismissal of the complaint.
3. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand Sh. Satish Kumar  , Senior Divisional Manager has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the submissions of Ld. Counsel  for the parties.
5.  The controversy in the present complaint revolves around the issue as to whether  the repudiation of claim of complainant was justified or not?  The OP  vehemently stressed that  the complainant is bound by terms and conditions of the policy  and that  condition no. 4.1 excluded the disease suffered by complainant.  It has been further contended by OP that as per observation of Hon’ble Supreme Court in case titled Oriental Insurance Co. Ltd V/s Sony Cherian II (1999) CPJ 13 (SC) that the insurance policy  between insurer and the insured represents a contract between the parties thereby insurer undertakes to compensate the loss suffered by the insured on account of risks covered by insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. It has been further argued that the court should give due weightage to the terms and conditions by giving a plain meaning thereto.
6. Counsel for the complainant ,on the other hand, cited III (1996) CPJ 8 (SC) titled United India Insurance Co. Ltd. V/s MKJ  Corporation  whereby the Hon’ble  Supreme Court held that it is the duty of the insurer or its agents to disclose all material facts and that the insured is not bound by subsequent exclusionary clause unless the such terms and conditions are quoted as part and parcel of the policy undertaken by the insured. In another case cited as (I) 2006 CPJ 115 (NC) titled  Oriental Insurance Co. Ltd. versus Asim J. Pandya  the Hon’ble National Commission held  therein that if terms and conditions are not supplied to the insured , the same shall not be acted upon by the insurance company.  The Hon’ble National Commission in another case reported in IV 2005 CPJ 190 (NC)  held that exclusion if not incorporated , not part of policy shall not be binding on the insured. It was further observed that if anything purported to convey what is not a part of contract (policy) alien to it , company cannot take advantage of such situation.
7.  We have carefully considered the rival contentions raised by counsels for parties and have also gone through the record and the judgments cited above.
8. The crux of the judgments referred to above would lead us to only one conclusion that insurance company  cannot not take shelter under the umbrella of so called terms and conditions of policy if the said terms were not supplied to the insured at the time of inception of policy or any time subsequent thereto.  The principle behind this approach  is that no cannot be taken by surprise. It is commonly seen that insurance companies do not supply terms and conditions at the outset of the policy but whenever any claim is filed they would immediately come out with terms and conditions to evade its liability to the prejudice of poor insured.  The Hon’ble Supreme court in the cases stated above has categorically ruled that contract of insurance being a contract of bona-fide both parties should be honest to each other. We have seen that in the present case exclusion clause 4.1 does not at all form part of the insurance policy rather it has been incorporated in a separate full-fledged document called “terms and conditions” being kept under wraps by the OP insurance company.
9. Keeping the discussion of the above we find that the repudiation of the claim is highly unjustified and unwarranted therefore it amounted to deficiency in service on the part of the OP. Therefore , we award a sum of  Rs. 1,11,826/-  along with interest @ 9% p.a. from the date of filing the claim with Rs. 7,500/- as compensation for mental pain and harassment suffered by the complainant which also includes litigation cost.

Copy of this order be sent to the parties as per rules. File be consigned to record room.

                   Announced this ___________day of __________2017.