ORIENTAL INSURANCE Company Limited vs Jagmohan Lal Gupta

THIS appeal is directed against the order of the District Forum, Kangra at Dharamshala dated 27.10.1997, whereby the appellants/opposite parties (hereinafter to be referred to as the Insurance Company) has been directed to pay to the complainant/respondent (hereinafter to be referred to as the complainant) an amount of Rs. 1,44,542/- alongwith interest @ 15% per annum from 1.3.1993 till the amount is actually paid or deposited with the District Forum. Cost of Rs. 2,000/- has also been awarded.

THE complainant-Jagmohan Lal Gupta, admittedly, has undergone Coronery By-pass surgery and was insured under Hospitalisation and Domiciliary Hospitalisation Benefit Policy and that the policy was in force at the time of operation. The complainant has placed on record certain receipts of expenditure in support of his claim. The genuineness of the receipts is also not in dispute. However, the claim has been repudiated by the Insurance Company on two grounds. Firstly, according to the Insurance Company, the complainant has suppressed material facts at the time of entering into contract of insurance and secondly, the claim has been allowed by the District Forum in excess of the permissible limit as given in the Table annexed with the insurance policy.

Mr. Sunder Goel, learned Counsel for the Insurance Company submits that the material facts have been suppressed by the complainant that he was suffering from heart trouble - Angina at the time of entering into the contract of insurance and he has relied upon a document - Doctor''s orders (Ex. C-l).

WE have perused the record. WE find that no doctor has come forth to prove this document nor has any person been produced to show that it is a true copy of the document with reference to the record of the Hospital. Affidavits also have not been filed. Original documents have also not been placed on the record. Further, it is not clear whether a copy of the document is copy of the original or a copy of the copy. WE are in agreement with the finding given by the District Forum. The Counsel for the Insurance Company further contends that the District Forum has allowed the Medi-claim of Rs. 1,44,542/- ignoring the permissible limit prescribed in the Table annexed with the insurance policy.

IT appears that the Insurance Company has made their own exercise under different heads in order to show that particular claim has been allowed in excess of the permissible limit given in the Table. Such exercise to us is not intelligible. Moreover, it has not been substantiated that the so-called Table annexed with the insurance policy is a part of the contract of insurance. Furthermore, such particular objection has not been taken in the reply. This argument, therefore, has necessarily to be rejected. Reliance has been placed by the Counsel for the Insurance Company on Clause 13 of the contract of insurance with a view to substantiate that the complaint is time-barred. Clause 13 may be quoted as under : "If the Company shall disclaim liability to the insured person for any claim hereunder and if the insured person shall not within 12 calendar months from the date of receipt of the notice of such disclaimer notify the Company in writing that he does not accept such disclaimer and intends to recover his claim from the Company then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder."

In substance, the claim according to them, was repudiated on 23.3.1993 whereas the complaint has been filed on 9.11.1994 after one year and the complainant in terms of the above clause was required to notify to the Insurance Company in writing that he does not accept such disclaimer and intends to recover his claim, which he has failed to do and as such he has abandoned the claim. Such a contention is wholly fallacious and has to be rejected. At the very outset, we may notice that no foundation has been laid down to show in the reply that the claim is time-barred and the other party cannot be taken by surprise. It is settled principle of law that question of limitation is a mixed question of law and facts and not merely the question of law. Moreover, this clause only requires that the insured must notify to the Insurance Company that he does not accept such disclaimer within 12 months of repudiation, but it does not debar him from filing complaint under the Consumer Protection Act. Furthermore we find from the rejoinder filed by the complaint to para 2 of the preliminary objection taken by the Insurance Company, that the Insurance Company in its letter dated 20.10.1993 had itself suggested to have the Discharge Folio corrected. A copy of the revised/ corrected Discharge Folio was re-submitted vide letter dated 28.2.1994. According- to the complainant, no reply was received from the Insurance Company despite reminders dated 9.5.1994 and 22.8.1994. The Insurance Company never repudiated the claim on submission of revised/corrected Discharge Folio. Such rejoinder is supported by document Annexures A-2, A-3 and A-4. This plea has neither been rebutted by the Insurance Company nor has any evidence been produced by them to rebut such plea and as such we have to assume such statement as true. In view of such a situation, it cannot be said that the Insurance Company has finally repudiated the claim and as such the question of application of this clause would not arise. In the light of what is discussed above, there is no force in this appeal and the appeal is accordingly dismissed with no order as to costs. Appeal dismissed. ______________