ASIM J PANDYA Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This appeal arises from order dated 17.2.2004 dismissing the complaint bearing No.220 of 2002 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City.

(2.) We have heard the learned Advocates. It would appear that the complainant along with members of his family including his daughter Shaiva came to be insured under Mediclaim insurance in the sum of Rs.75,000/- and she was operated during the subsistence of the policy at Hinduja Hospital, Mumbai on 23.10.2001. Claim was preferred by the complainant and same was repudiated on 3.1.2002 on the ground that the disease was pre-existing and it was excluded as per Exclusion Clauses 4.1 and 4.8 of the Mediclaim policy in question. The complainant made representation but that also was not responded to favourably by the opponent Insurance Company. He, therefore, approached the City Forum before whom the opponent Insurance Company canvassed the repudiation supported by the aforesaid two clauses of the Mediclaim policy. The City Forum accepted the repudiation to be correct and bona fide on the ground that the complainant's daughter Shaiva was operated for Scoliosis Dorsal Spine and as per the report of Dr. Bhaumik Jani dated 14.8.1995, Shaiva was shown to have suffered from Hemivertebra although it did not in fact appear externally. The City Forum referred to the MRI report dated 31.5.2001 showing that Hemivertebra had resulted into Scoliosis. Relying on these two documents, the Forum camhe to the conclusion that the disease was pre-existing and, therefore, repudiation of the claim on that ground was justified as per Clause No.4.1 of the Mediclaim policy in question. The City Forum has also made reference to the diagnosis of Dr. Jyotindra Pandit for finding that the person insured may or may not be knowing about the existence of the disease but the disease was in existence prior to taking of the policy and that has been excluded as per the relevant clause appearing in Condition No.4.3 (correct condition is 4.1 ). Finally, the City Forum has made reference to the opinion of Dr. Hiren Maniyar submitted from the side of the opponent Insuance Company and X-ray report of Dr. N. L. Patel. The City Forum has finally referred to Clause 4.8 as canvassed on behalf of the opponent Insurance Company and found that the claim was rightly repudiated by the opponent Insurance Company.

(3.) It would appear from the impugned order as also the stand of the opponent Insurance Company that the claim was sought to be repudiated only on the basis of Clauses 4.1 and 4.8 of the Mediclaim policy in question. It has been submitted on behalf of the complainant that he was not informed about the relevant terms and conditions of the Mediclaim Policy in question and he was kept unaware about the aforesaid Clause Nos.4.1 and 4.8 and, therefore, the claim could not have been repudiated on the basis of such clauses. See Morgan Insulators Ltd. V/s. Oriental Insurance Company, 2000 AIR(SC) 1014. At first, when this submission was made in the light of further broad submissions this Commission had an occasion to pass order Exh.7 on 15.7.2004 as under: "when this appeal came up for hearing, no one has remained present for the opponent Oriental Insurance Company Limited. This appeal has been filed by the complainant against the impugned order dismissing his complaint on the ground that repudiation of the claim was justified as covered under the exclusion clause regarding pre-existing disease. The submission of the complainant in the first place is that he was not informed about the terms and conditions of the policy which would indicate such an exclusion clause. Under the circumstances, his submission is that correct construction of relevant clause of the policy on which reliance was placed by the opponent Insurance Company would indicate that the exclusion clause would not apply to the present case. In the present case, X-ray (page 32) shows "hemivertebra with extra (13th) rib is seen on left side at the level of D-10". What is excluded by the clause is congenital external disease or defect or anomaly and this is certainly not external defect or anomaly, much less disease. It has also been submitted that there was no intention or idea of suppression of fact as the complainant himself has provided all the papers including the aforesaid report of the hospital and subsequent medical treatment papers which first started in the year 2000. First policy of Mediclaim was taken in the year 1998 and it was renewed from time to time. All these circumstances submitted from the side of the complainant would go to indicate the genuineness of the claim on the part of the complainant. However, since no one is present for the opponent Insurance Company, we would like to recommend the complainant's case to be considered afresh by the opponent Insurance Company and place the decision taken by the opponent Insurance Company on such reconsideration on the record of this appeal on the returnable date. This appeal is accordingly adjourned to 8.9.2004. Direct service is permitted. "