AKSHOY KUMAR PAUL Vs. NEW INDIA ASSURANCE COMPANY

JUDGEMENT

(1.) The case of the petitioners is that their Mediclaim policy was not renewed on the ground that the petitioner had suffered heart ailments during the pendency of the policy. The learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Biman Krishan Bose v. United India Assurance Co. Ltd: 2001 (6) SCC 477, Mukut Lal Duggal v. United India Insurance Co. Ltd: 117 (2004) DLT 74 and Ashok Kumar Dhingra v. Oriental Insurance Company Ltd and Ors: AIR 2004 Delhi 161.

(2.) The learned counsel for the respondents raised two contentions. The first contention was that this petition was not maintainable inasmuch as the mediclaim policy is a contract between the insured and the insurer and that falls in the realm of private law and no public law element is involved. The second contention raised by the learned counsel for the respondent [Insurance Company] is that the condition of exclusion of cardiac ailments was consented to by the petitioner No.1 when the mediclaim policy was renewed w.e.f. 11.08.2003 and again when it was renewed w.e.f. 11.08.2004 to 10.08.2005. Therefore, according to the learned counsel for the respondent, the petitioners, having once consented, cannot go back on this.

(3.) In rejoinder, the learned counsel for the petitioners submitted that the question of maintainability has already been settled in Ashok Kumar Dhingra (supra) as also pointed out in Mukut Lal Duggal (supra). With regard to the question of renewal, he placed strong reliance on the case of Mukut Lal Duggal (supra) in contending that renewal should be on the same terms and conditions and not by incorporating exclusion clauses which exclude those ailments which have afflicted the insured during the period of the insurance cover. The learned counsel for the petitioner also pointed out that the consent that was given in 2003 and 2004 for excluding the cover with regard to cardiac ailments was not free consent, but was under compulsion inasmuch as if that consent had not been given, then the petitioners would have no mediclaim insurance cover at all even in respect of other ailments. So, it was not really a choice which the petitioners could have freely exercised and, therefore, the petitioners cannot be bound by such a consent which was not willful.