N. SUBBANAN Vs. UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS CHAIRMAN CUM MANAGING DIRECTOR, CHENNAI AND THE DIVISIONAL MANAGER, DIVISIONAL OFFICE OF UNITED INDIA INSURANCE COMPANY LTD., TIRUPUR

JUDGEMENT

(1.) PETITIONER has filed the above writ petition to issue a Writ of Mandamus, directing the respondents to settle all claims preferred against the Videsh Yatra Mitra Policy bearing policy No. 759562/2000, Category B and H, Plan G, DO Code: 171300, Co. Code 1, purchased by the petitioner on 6 -2 -2001 from the office of the second respondent, with regard to the petitioner's heart treatment undergone by him in the United States of America during the petitioner's visit there during the months from February to August, 2001, by not giving effect to the miscellaneous endorsement No. 171300/46/43/21/03/0003/2001 dated 12 -2 -2001 and the said endorsement is invalid, null and void and not binding on the petitioner and also that it cannot be enforced or given effect to, and that the petitioner is entitled to all the benefits of the above said policy as regards his heart treatment in United States of America.

(2.) THE case of the petitioner is briefly stated hereunder: -

(3.) THE respondents have filed a counter affidavit disputing various averments made by the petitioner. It is stated that the petitioner has submitted a proposal seeking overseas medical insurance for his trip to United States. Along with the proposal dated 6 -2 -2001, he submitted medical certificate issued by Dr. J.K. Periaswmi. On the basis of the certificate, a policy was issued called Videsh Yatra Mitra Policy by the 2nd respondent on 6 -2 -2001 for the period of cover for 145 days commencing from 12th February to 6th July, 2001. Two clauses in the policy are relevant for the purpose of this case, i.e., pre -existing condition of any sickness for which the insured person has sought medical advice or has taken medical treatment in preceding 12 months prior to the commencement of any travel and (2) general clause of exclusion applicable to all sections. A perusal of the proposal shows that the insured was continuing the medicines. The certificate of Dr. J.K. Periaswami clearly shows that the petitioner was continuing the treatment taking medicine even on the date of proposal. By way of precaution and clarification, the second respondent passed an Endorsement on 6 -2 -2001 specifically excluding the ailments with which the petitioner was suffering from the purview of the policy cover. Any treatment overseas for the said ailment claim was not payable. The endorsement was valid and binding as the same was passed before the petitioner entered the hospital for treatment. The insured has agreed to abide by the pre -existing exclusion in the policy, and hence the exclusion clause for pre -existing ailment is attracted. The pre -existing exclusion was not deleted from the policy. No extra premium was collected to give special benefits to the petitioner and even otherwise any loading of premium cannot take care of such pre -existing condition. The agents has not properly understood the scope of exclusion of pre -existing illness or ailment covered under the policy and in any event the respondents are not bound by such impressions. Invoking Article 12 of the Constitution of India, is not appropriate as the contract is a private contract between the petitioner and the respondent in the normal course of business and merely because the respondents are 'STATE' within the meaning of Article 12 of the Constitution, the contract in question cannot become a statutory contract. Notwithstanding the endorsement which is a clarificatory document, the exclusion clause stands by itself being part and parcel of the policy conditions, relying on the same the respondents repudiated liability. Insurance contract being a contract based on good faith it is the legal obligation of the petitioner to disclose all material information regarding health conditions including treatment had prior to the Policy in question. Article 226 of the Constitution cannot be invoked against the respondents to enforce the repudiation being a private contract between the petitioner and respondents, when alternative forum i.e Civil Court to resolve the disputes arising from the contract is available. Since the matter requires oral and documentary evidence for its determination, the proper and appropriate remedy is to approach a Civil Court.