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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
National Insurance Co. Ltd. —Petitioner
versus
Ganpatbhai Somabhai Kadia —Respondent
Revision Petition No.1712 of 2014
(Against the Order dated 30/09/2013 in Appeal No. 726/2011 of the State Commission Gujarat)
Decided on 19.5.2017
For the Petitioner:Dr. Sushil Kr. Gupta, Mr. Ajit Kumar Gupta and Mr. Vikas Negi, Advocates
For the Respondent:Ganpatbhai Somabhai Kadia, Advocate and NEMO
IMPORTANT POINT
Claim cannot be allowed ignoring exclusion clause contained in insurance policy.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Insurance—Mediclaim Policy—OP/insurance company repudiated death claim on ground that disease was pre-existing one—Complainant has concealed material information while filling proposal form at first time—Treatment which he took in 2009 and claimed compensation falls under exclusion clause because it was within three years from date of commencing policy—Conclusion arrived at by State Commission is erroneous in eyes of law—Impugned order of State Commission set aside and order of District Forum restored.
Held: On the basis of foregoing discussion, it is clear that the complainant has concealed the material information while filling the proposal form at the first time and it is further mentioned that the treatment which he took in 2009 and claimed the compensation falls under the explanation clause 4.1 because the policy started from November, 2006. He took treatment in June, 2009. Therefore, it was within three years from the date of commencing the policy. On the basis of afore-mentioned two counts, we feel that the conclusion arrived at by the State Commission is erroneous in the eyes of law. Accordingly, we set aside the impugned order of State Commission and restore the order of District Forum. (Paras 8 and 9)
Result: Revision Petition allowed.
Dr. S.M. Kantikar, Presiding Member—There is a delay of 33 days in filing the revision petition. For the reasons mentioned in the application for condonation of delay, the delay of 33 days is condoned. Despite service of notice, the respondent/complainant remained absent on 21.10.2016. Today again, respondent is not present.
2. The brief facts are that the complainant, Shri Ganpatbhai Somabhai Kadia obtained Medi-claim insurance policy for a sum of Rs. 1 lakh from National Insurance Company Ltd. (OP) on 6.11.2006. It was renewed regularly till 5.11.2011. During the subsistence of the policy, he took treatment in Lilavati Hospital, Mumbai from 14.6.2009 to 16.06.2009 and submitted claim of Rs.1,25,000/- alongwith medical bills and documents to the OP/insurance company. The OP/insurance company repudiated the claim on the ground that the disease was pre-existing one. Aggrieved by the unlawful repudiation, the complainant filed a complaint before the District Forum, Sabarkantha, Gujarat.
3. The OP resisted the complaint by filing the written version and submitted that the patient was treated in 2003 for Bilateral Kidney problems. The treatment was bilateral PCNL, which was done in the same hospital. Therefore, it was not disclosed by the complainant while taking the policy in 2006. Therefore, the repudiation was proper as per exclusion clause 4.1 of the insurance policy.
4. The District Forum dismissed the complaint. Being aggrieved by the order of District Forum, the complainant preferred first appeal before the State Commission, which was allowed by the impugned order. The OP was directed to pay a sum of Rs.1,15,000/-, alongwith interest @ 9% per annum. Also directed to pay a sum of Rs. 5,000/- towards mental agony and Rs.3,000/- towards the litigation expenses.
5. We have heard the learned counsel for the petitioner. Counsel, Dr. Sushil Kumar Gupta argued that the complainant had not informed the insurance company about the history of Bilateral PCNL (Percutaneous Nephrolithotomy) done with DJ stenting in the year 2003. The complainant has suppressed the material fact while filling up the proposal form while taking the policy. He further argued that the respondent on 14.6.2009 got admitted in Lilawati Hospital for the complaint of Right Renal Calculi with left upper Uretic Calculi. He got discharged on 16.06.2009. According to the Discharge summary, the respondent had the history of Bilateral PCNL (Percutaneous Nephrolithotomy) done with DJ stenting in the year 2003. Learned counsel further submitted that the present case is of pre existing disease under the clause 4.1 of the Terms and Conditions of the Policy. The Exclusion Clause 4.1 reads as under:—
“The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by and insured person in connection with or in respect of all diseases/injuries, which are pre-existing when the cover incepts for the first time. This exclusion will be deleted after three consecutive continuous claims free policy years in respect of all disease provided, there was no hospitalization for pre-existing ailment during such three years of insurance.”
6. The counsel brought my attention towards the discharge summary of Lilawati Hospital, which revealed:—
“As per the Discharge card claimant has history of Bilateral PCNL done with DJ stenting in 2003, which is pre-existing disease to first year policy. Hence, claim s rejected under the Clause 4.1
In view of the above exclusion, we regret to say that your claim is not payable.”
7. Perused the relevant medical record available on file. It is recorded as “H/o B/l PCNL and DJ Stenting 2003”, which means the patient was treated in 2003 for both kidney problems. It is further brought to my notice to answer to the question under Clause 2(h) of the proposal form. The question is “have you ever suffered from any disorder of the stomach, ulcer, bowel or gall bladder, kidney stone etc.?
The answer given b
