Sham Sunder (Retd.), President:
1. This appeal is directed against the order dated 17.10.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant purchased a Mediclaim Policy (Hospitalization Benefit Policy) from the Opposite Party, valid for the period from 31.01.2011 to 30.01.2012. The said Policy was got renewed for the period from 31.01.2012 to 30.01.2013. It was stated that earlier to that, the complainant had taken two Policies, from ICICI Insurance Company, for the last three years. It was further stated that when the Policy, in question, was issued, and renewed by the Opposite Party, its Agent did not get the complainant, medically examined. It was further stated that the Policy, in question, was received by the complainant. At that time, neither the terms and conditions of the said Policy were sent to the complainant, nor any details were ever explained/told to him, by the Agent of the Opposite Party. It was further stated that the Agent of the Opposite Party, assured the complainant, that he was fully insured and secured continuously, for the last five years.
3. It was further stated that, in the month of September 2012, the complainant suffered from Heart disease, and he was taken to the Government Hospital, Sector 16, Chandigarh, and, later on, to the Postgraduate Institute of Medical Education and Research, Chandigarh, where he underwent angioplasty. It was further stated that a total sum of Rs.3,44,703/-was spent by the complainant on his treatment, at the said Hospital, which was paid by him, vide bills Annexures C-2 and C-3 (colly.). Thereafter, the claim was lodged, with the Opposite Party, for reimbursement of the amount of Rs.3,44,703/-. It was further stated that the complainant received a letter dated 03.11.2012, Annexure C-5, from Raksha TPA Pvt. Ltd. (the third party hired by the Opposite Party), in which it was mentioned that the claim was untenable, on the ground that according to Clause 4.3 of the terms and conditions of the Policy, the disease of hypertension was excluded, for a period of 2 years, from the date of inception of the same (Policy) as also, according to Clause 4.1 of the same (Policy), any pre-existing disease/condition was excluded, for the period of four free consecutive Policy years. It was further stated that since the terms and conditions of the Policy were never supplied to the complainant, at any point of time, exclusion Clauses 4.1 and 4.3 contained therein, were not applicable to the claim of the complainant, and, as such, the repudiation of his genuine claim, by the Opposite Party, was illegal and arbitrary. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed by the complainant, directing the Opposite Party, to pay Rs.3,44,000/-, the amount spent on his treatment, alongwith interest @12% P.A.; compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.
4. The Opposite Party, in its written version, admitted the issuance of Policy, in question, in favour of the complainant, as well as filing of the claim by him. It was stated that the claim of the complainant was rejected, as per the terms and conditions of the Policy. It was further stated that the terms and conditions of the said mediclaim Policy were supplied and duly explained, to the complainant. The same were also accepted by the complainant. It was further stated that the medical records of the complainant, showed that he was suffering from coronary artery disease, hypertension and old inferior wall myocardial infarction. It was further stated that, as per Clause 4.3 of the terms and conditions of the Policy, the disease of hypertension was excluded, for a period of 2 years, from the date of inception of the Policy. He further submitted that even according to Clause 4.1 of the terms and conditions of the Policy, any pre-existing disease/condition was excluded for a period of four consecutive claim free Policy years. It was further stated that since the claim of the complainant was not payable, the same was repudiated by the Opposite Party, legally and validly, information whereof, was given to him, vide letter dated 03.11.2012. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that the terms and conditions of the Policy, were never supplied to the complainant, by the respondent/Opposite Party, and, as such, he was not aware of the same. He further submitted that, thus, the Opposite Party could not rely upon the Exclusion Clauses, contained in the terms and conditions of the Policy. He further submitted that the Mediclaim Policy (Hospitalization Benefit Policy) was taken by the complainant, from the Opposite Party, for the period from 31.01.2011 to 30.01.2012, and the same was further got renewed, for the period from 31.01.2012 to 30.01.2013. He further submitted that earlier to that, the complainant had taken two Policies, from ICICI Insurance Company, for the last three years. He further submitted that before the Policy, in question, was issued, and renewed by the Opposite Party, its Agent did not get the complainant, medically examined. He further submitted that, in the month of September 2012, the complainant suffered from Heart disease, for the first time, in his life, and he was taken to the Government Hospital, Sector 16, Chandigarh, and, later on, to the Postgraduate Institute of Medical Education and Research, Chandigarh, where he underwent angioplasty, and total expenditure incurred by him, on his treatment was to the tune of Rs.3,37,228/-. He further submitted that hypertension, with which the complainant was found to be suffering was neither, in his knowledge, nor it could be said to be a disease. He further submitted that the complainant was not suffering from any preexisting disease. He further submitted that the claim of the complainant was illegally and arbitrarily repudiated by the Opposite Party.
10. On the other hand, the Counsel for the respondent/Opposite Party, submitted that the terms and conditions of the Policy, were duly supplied to the complainant. He further submitted that, in case, the complainant had not received the terms and conditions of the Policy, then why he kept silent, for a period of seven to eight months, after taking the Policy. He further submitted that since the terms and conditions of the Policy were supplied to the complainant, he was bound by the same, and the Opposite Party could rely upon the same, with a view to repudiate his claim, legally and validly, if the same (claim) was excluded under the same (terms and conditions of the Policy). He further submitted that the complainant suppressed the material fact, with regard to the factum that he had been suffering from hypertension, before the inception of the Policy. He further submitted that, as per Clause 4.3 of the terms and conditions of the Policy, the disease of hypertension was excluded, for a period of 2 years, from the date of inception of the Policy. He further submitted that even according to Clause 4.1 of the terms and conditions of the Policy, any pre-existing disease/ condition was excluded for a period of four consecutive claim free Policy years. He further submitted that, as such, the claim of the complainant was legally and validly repudiated. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
11. The first question, that falls for consideration, is, as to whether, the terms and conditions of the Policy, in question, alongwith the cover-note, or later on were supplied to the complainant, or not. In paragraph number 4 of the complaint, the complainant, in clear-cut terms, stated that when the Policy, in question, was received by him, the terms and conditions thereof, were neither sent alongwith the same, nor details of that were explained to him, despite making a request, because the Agent, who had insured him (complainant) specifically and clearly told him that he need not worry because he was fully insured and secured continuously, for the last five years. This very averment was also duly corroborated, by the complainant, through his affidavit, submitted by way of evidence. No doubt, in paragraph number 1 of the preliminary objections of the written version, the Opposite Party, stated that the Mediclaim Policy (Hospitalization Benefit Policy) was issued to the complainant. It was further stated, in this paragraph of the preliminary objections, that before issuance of the Policy, the terms and conditions of the same were duly explained to the complainant, and he was ready to accept the Policy, alongwith the terms and conditions. In paragraph number 3 of the preliminary objections, it was further stated by the Opposite Party, that the terms and conditions of the Insurance Policy, were duly supplied to the complainant, alongwith the Policy of Insurance. It was further stated, in this paragraph that, in case, as per the version of the complainant, he had not received the terms and conditions of the Policy, then why he did not raise any protest, at any point of time. Since, it was the definite case of the complainant, in the complaint, which was duly supported by him through his affidavit, submitted by way of evidence, that he was never supplied the terms and conditions of the Policy, in case, the same had been supplied by the Opposite Party, it could be said to be in possession of the best evidence, to prove this factum. By which mode, the terms and conditions of the Policy were supplied to the complainant, was not mentioned, in the written version of the Opposite Party. The Opposite Party could produce the courier receipt, or the postal receipt, showing the supply of copy of the terms and conditions of the Policy. It, however, miserably failed to do so. In the absence of production of any documentary evidence, to the effect, that the terms and conditions of the Policy, were supplied to the complainant, an adverse inference could be drawn, against the Opposite Party, that the same were not supplied to him, at any point of time. The averment of the complainant, to the effect that the terms and conditions of the Policy were never supplied to him, by the Opposite Party, therefore is correct. In M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. I (2000) CPJ 1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of Insurance Law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all material facts, in their knowledge, since obligation of good faith applies to both equally. It was, thus, the duty of the Insurance Company/Opposite Party to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of it, to apprise the complainant, of the benefits of the insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the Insurance Policy and the terms and conditions thereof, including the exclusions and warranties to the insured, so as to enable them, to go through the same, and understand the Clauses contained therein. In United India Insurance Co. Ltd. and Anr. Vs S.M.S. Tele Communications and Anr.,III (2009) CPJ 246 (NC), it was observed that being aware of the existence of Policy, is one thing, and being aware of the contents and meaning of the Clauses of the Policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, since, neither the terms and conditions of Policy, including the exclusions and warranties were supplied to the complainant, nor the exclusions and warranties Clauses were made known to him, the Opposite Party was deficient, in rendering service.
12. As far as the submission of the Counsel for the respondent/Opposite Party, that had the terms and conditions of the Policy, been not supplied by the Insurance Company, the insured would not have remained silent, and, in that event, he was required to write to the Insurance Company to supply the same to him, is concerned, it may be stated here, that, in paragraph number 7 of M/s Modern Insulators Ltd.s case (supra), it was recorded by the Honble Supreme Court, that the National Consumer Disputes Redressal Commission observed that it was equally the responsibility of the respondent, to call for these terms and conditions, even if, the same were not sent by the appellant, as alleged, to understand the extent of risks covered under the Policy, and the associated aspects. However, the Honble Supreme Court, in paragraph number 9 held that the view expressed by the National Consumer Disputes Redressal Commission, was not correct. In other words, the Honble Supreme Court did not approve of the view, taken by the National Consumer Disputes Redressal Commission, that it was the responsibility of the insured to call for the terms and conditions of the Policy, if the same had not been supplied to him, by the Insurance Company. In this view of the matter, the submission of the Counsel for the respondent/Opposite Party, being devoid of merit, must fail, and the same stands rejected.
13. The complainant underwent angioplasty in Postgraduate Institute of Medical Education and Research, Chandigarh, as is evident, from the medical records/documents, placed on record, and spent a sum of Rs.3,37,228/-, vide bills and cash receipts, copies whereof are placed at Annexure C-3 (Colly.), on his treatment. As stated above, since the terms and conditions of the Policy, including the exclusions and warranties thereof, had not been supplied to the complainant, he was not bound by the same. The complainant was, thus, entitled to the reimbursement of amount of Rs.3,37,228/-, which was spent by him, on his treatment. The Opposite Party, illegally and arbitrarily, repudiated the genuine claim of the complainant, and, thus, it was deficient, in rendering service.
14. The complainant also claimed compensation, for mental agony and physical harassment, on account of illegal and arbitrary repudiation of his genuine claim. One can really imagine the condition of a person, who had spent a huge amount of Rs.3,37,228/-, on his medical treatment, but his claim was repudiated by the Insurance Company, from which, he had obtained the Mediclaim Insurance Policy, without any rhyme or reason. On the one hand, the complainant suffered a lot of mental agony and physical harassment, on account of undergoing such a treatment, from the Postgraduate Institute of Medical Education and Research, Chandigarh, and on the other hand, the Opposite Party by repudiating his claim, illegally and arbitrarily, further added to his miseries and tribulations. Under these circumstances, in our considered opinion, the complainant is entitled to compensation for mental agony and physical harassment. It is settled principle of law that compensation should neither be excessive, nor unfair, but, on the other hand, it should be adequate, fair and reasonable. Compensation, in the sum of Rs.25,000/-, for mental agony and physical harassment, if granted to the complainant, that would meet the ends of justice.
15. No other point, was urged, by the Counsel for the parties.
16. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
17. For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is set aside. The complaint is partly accepted, as under:
i. The respondent/opposite party is directed to pay a sum of Rs.3,37,228/- spent by the appellant/complainant, on his medical treatment.
ii. The respondent/opposite party shall pay a sum of Rs.25,000/-, to the appellant/ complainant, as compensation, for mental agony and physical harassment, caused to him
iii. The respondent/opposite party shall further pay a sum of Rs.15,000/-, as cost of litigation, to the appellant/complainant.
iv. The amounts mentioned in Clauses (i) and (ii), shall be paid by the respondent/ opposite party, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the amount mentioned in Clause (i) shall carry interest @9% P.A., from the date of repudiation of claim, till realization, and the amount mentioned in Clause (ii) shall carry interest @9% P.A., from the date of filing the complaint, till realization, besides payment of cost of litigation of Rs.15,000/-
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.