NATIONAL INSURANCE CO LTD vs HARJEET KAUR

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 13.10.2004 in Complaint No. 133/2004 of the Consumer Disputes Redressal Forum, Raipur (hereinafter called the District Forum for short) whereby the appellant/insurer was directed to pay Rs. 1 lac with interest @ 9% per annum payable thereon from 19.11.2003, under the Medi Claim Policy obtained by the complainant/respondent No. 1, besides Rs. 1,000 as cost of the complaint.

THE complainant/respondent herein obtained Group Mediclaim Policy for Rs. 1 lac for the period from 8.9.2002 to 7.9.2003. The averments of the complainant were that there were complications in the uterus which she got checked up and was ultimately operated at Bombay Hospital on 28.5.2003. She had to remain in the Bombay Hospital from 28.5.2003 to 12.6.2003. According to the complainant, a total expenditure of Rs. 1,21,370 was incurred by her in the above treatment. She submitted the claim with the appellant/insurer along with necessary documents. However, the claim of the complainant was repudiated by the appellant/insurer by their letter dated 19.11.2003. Aggrieved by the repudiation as above, the complainant preferred the complaint before the District Forum. The appellant/insurer resisted the complaint. According to them, the surgery/treatment involving Hysterectomy was not covered during the first year of the policy, in view of the Exclusion Clause under the Medi Claim Policy. Therefore, the expenditure for the treatment of the complainant was not payable.

THE District Forum in the impugned order observed that the complainant could not be presumed to have been aware of the existence of fibroid prior to obtaining the policy and, therefore, repudiation of her claim was not justified and appellant/insurer was, therefore, liable to pay the assured amount under the said Mediclaim policy. The District Forum, therefore, directed that the appellant/insurer shall pay compensation of Rs. 1 lac with interest @ 9% per annum as also Rs. 1,000 as cost.

LEARNED Counsel for the parties were heard. Record of the District Forum perused. The main thrust of the submission of the learned Counsel for the appellants was that as per the Exclusion Clause of the policy, the surgery Hysterectomy etc. was clearly excluded under the Exclusion Clause 4 of the said policy. The said Clause reads : 4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of: 4.1 All disease/injuries which are pre -existing when the cover incepts for the first time. 4.3 During the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign prostalic Hypertrophy, Hysterectomy for menorrhagia or Fibromyoma hernia, hydrocele, Congenital, internal diseases, Fistula in anus, Piles sinusitis and related disorders are not payable if these diseases are pre -existing at the time of proposal they will not be covered even during subsequent period of renewal too. If insured is aware of the existence of congenital disease inception of policy, it will be treated as pre -existing.

FROM the reading of the Exclusion Clause as above, it would appear that the appellant/insurer was not liable to pay expense of Hysterectomy during the first year of the operation of the insurance cover. In the instant case, it is not in dispute that the Hysterectomy took place on 28.5.2003 while the policy was issued for the period from

9.2002 TO 7.9.2003. Obviously, therefore, surgery known as HysterecTOmy TOok place in the first year of the policy and, therefore, was squarely covered by the aforequoted Exclusion Clause. This being so, the complainant/respondent was not entitled TO mediclaim expenses incurred by her in the said operation and treatment. 8. The District Forum has cited and relied upon certain decisions of the State Commissions, which mainly relate TO the suppression of material fact. However, as noticed above, the dispute in the instant case, is not regarding mateial suppression of facts by the complainant, but it is, in fact, regarding the liability of the insurer under the policy in view of the exclusion clause. Therefore, the reasoning adopted and decisions relied upon by the District Forum, would not assist the complainants case. It appears that the District Forum mis -directed itself by relying on the said decisions and in allowing the complainants claim, holding that she was not guilty of suppression of facts. In the foregoing circumstances, the complainant could not succeed in her complaint. The repudiation of her claim was justified. The District Forum erred in awarding her expenses of aforesaid treatment.

CONSEQUENTLY , this appeal is allowed. The impugned order is set aside. The complaint stands dismissed. Appeal allowed.