4. OPs contested the claim. In defence of United India Insurance Company Ltd./appellant in FA No. 1419 of 2017; it is asserted that complaint is pre-mature as complainant has not submitted original bills for medical reimbursement. Complainant has not come with clean hands and suppressed material facts. Complainant, from very beginning, was chronic liver patient since long, as diagnosed by doctors from treatment record. He is habitual drunkard and disease is the result of habitual drinking. He has violated terms and conditions of insurance policy mentioned as Clause 4.8 & 5.5 so insurer is not liable to pay claim. On basis of treatment record; insurer has rightly repudiated claim by invoking clauses 5.5 & 4.8 of Medi-claim policy.

5. In the separate defence; The Oriental Insurance Company Ltd./appellant in FA No. 251 of 2018; has pleaded that complainant's claim was repudiated under clause 4.1 (pre-existing disease) and 4.8 (complication of alcohol) of Medi-claim policy, because as per claim form; complainant was admitted as a case of hepatic encephalopathy CLD with portal hypertension with Ascities Sepsis and Multi-organ failure which is not covered in policy. It is pleaded that:

complainant is known case of hypertension, CLD with HCV positive and Tracheotomy was done on 22.12.2012. It is pleaded that complainant is known case of CLD Ethanol related since 2010, CAD 2001 DM 2010, Haemorrhoids & P/r bleeding for 5 years. Haemorrdectomy was done in 2007, Iron deficiency Annaemia in 2011 and hypertension and Cholelithiasis multiple calculus but duration not given. It is pleaded that all above diseases are pre-existing at the time when policy was taken, but complainant did not disclose the same. Further, it is pleaded that policy is 2^ndyear running policy with date of inception being 16.12.2011. Primarily on these pleas; dismissal of complaint has been prayed.

6. In the defence entered by Fortis Escorts Hospital; it is pleaded that no relief/compensation has been claimed against it, so it is proforma respondent and complaint be dismissed. Identical is the nature of defence put forward by Apollo Indraprastha Hospital-Delhi. Both these hospitals have also pleaded that there are no allegations of deficiency in their respective services.

7. Parties (complainant, both insurance companies and Apollo Indraprastha Hospital) have led their respective evidence; oral as well documentary but no evidence was led by Fortis Escorts Hospital.

8. On critically analyzing the same, learned District Consumer Commission-Faridabad vide order dated 28.08.2017 has allowed the complaint and directed OP No.1 (United India Insurance Co. Ltd.) to pay Rs.2,00,000/- to complainant along with interest @9% p.a. from date of filing of complaint till realization. OP No. 2 (The Oriental Insurance Co. Ltd.) has been directed to pay Rs.6,00,000/- to complainant along with interest @9% p.a. from date of filing of complaint till realization. Both insurance companies have been directed to pay Rs.5,500/- for harassment and mental tension and Rs.2,200/- as litigation cost to complainant to be shared by both insurance companies, equally.

9. Aforesaid order (28.08.2017) has been questioned separately by United India Insurance Company Ltd. (OP No.1 in complaint) as well as by The Oriental Insurance Company Ltd. (OP No. 2 in compliant) through two separate appeals, detailed above to the extent of liability so fastened upon them.

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10. I have heard learned counsel appearing for parties in both appeals.

11. On behalf of United India Insurance Company Ltd. it is urged that impugned order dated 28.08.2017 is erroneous, both at legal and factual pedestal. Learned District Consumer Commission failed to consider the concealment of material facts by complainant that he was suffering from chronic liver problem and was alcoholic. It is urged that disease suffered by complainant was the outcome of, his being habitual dunked. Insurer has repudiated the claim after examining these aspects through panel of doctors. Hence as per contention; there was no deficiency in its service and directions to pay Rs.2,00,000/- to complainant with interest is legally unsustainable as there was proved violation of clauses 4.8 & 5.5 of insurance policy by complainant.

12. Learned counsel appearing for The Oriental Insurance Company has toed alike submissions so put forward by counsel for United India Insurance Company. It has urged that complainant has violated the clauses 4.1 & 4.8 of insurance policy and hence directions to pay Rs.6,00,000/- with interest to complainant deserve to be set aside.

13. Learned counsel appearing for complainant has supported the order dated 28.08.2017 by urging that it is outcome of proper appreciation of facts and evidence by learned District Consumer Commission and same warrants no interference.

14. It is admitted that complainant Sukhbir Singh had obtained two separate Medi-claim insurance policies from United India Insurance Company Ltd. and from The Oriental Insurance Company Ltd. Cover of insurance was to the tune of Rs.2,00,000/- against policy issued by United India Insurance Company Ltd. which has currency period from 31.05.2012 to 30.05.2013. Cover of insurance issued by The Oriental Insurance Company Ltd. was to the tune of Rs.6,00,000/- which has validity period from 16.12.2012 to 15.12.2013. There was no denial that both these policies were in continuation of previous policies. Complainant landed in Fortis Escorts Hospital on 15.12.2012. He was treated at Neurology Department of this hospital and diagnosed as "ACTUE ISCHEMIC STROKE WITH RIGHT FACIOBRACHIAL PALSY. FOLLOW UP CASE OF: CORONARY ARTERY DISEASE- OLD INFERIOR WALL MI

WITH LV DYSFUNCTION (EF-45%) CHRONIC LIVER DISEASE WITH PORTAL

HYPERTENSION-? HCV RELATED WITH HEMORRHOIDS OBESITY." Course in this hospital reflects that he was managed conservatively. He developed sudden onset respiratory distress. He was consulted with cardiologists and managed conservatively. There was plan to do MRI Brain with diffusion but could not be performed because of hemodynamic unstability. He (complainant) had obtained voluntary discharge on same day.

15. He ultimately landed in Apollo Indraprastha Hospital on same day i.e. on 15.12.2012 and remained hospitalized there till 08.01.2013. As per discharge summary of this hospital complainant was in Neurology unit of hospital. He was diagnosed as patient of hepatic encephalopathy CLD with portal hypertension with Ascities Sepsis with Multi-organ failure. The course of treatment at this hospital recites that he recovered gradually and was successfully decannuiated before discharge. His SpO2 level remained with normal range, he was able to swallow liquid diet and then solid diet. He was discharge in stable haemodynamical conditions.

16. Looking at the nature of ailment and treatment received by complainant; it is established that both insurance companies could not able to establish with credence, as to how, they have

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invoked exclusion clauses to serve repudiation of claim upon complainant. There is nothing on record that disease, of which complainant was diagnosed, was the off-shoot of abusive alcoholic attitude of complainant as alleged by both insurance companies in their respective written versions. At least, medical record, brought on record does not suggest, even remotely that complainant was habitual dunked which led to diseases, so diagnosed at both hospitals. Apparently, exclusion clauses were invoked by both insurance companies, merely on their presumption that complainant was alcoholic. Since, admittedly policies held by complainant were in continuation of previous policies therefore both insurance companies could have conducted proper medical examination of insured, before issuing policy at first instance and before renewing the same. There was no overt-act in that arena on part of both insurance companies.

17. It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of insured. Reliance in this regard can be placed on recent judgment of Hon'ble Supreme Court in case titled as "National Insurance Co. Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd." (Civil Appeal No.4979 of 2019 decided on 17.05.2023, and also on decision of Hon'ble Apex Court in case titled as

"National Insurance Company Limited vs. Ishar Das Madan Lal" (2007) 4SCC 105.

18. While applying the legal dictum of afore cited judgments to the facts of this appeal, "it is held that insurer (United India Insurance Company Ltd.) has miserably failed to bring on record any cogent evidence, to prove its pleaded fact that complainant, from very beginning was chronic liver patient and habitual drunkard. Likewise, insurer (The Oriental Insurance Company Ltd.) has failed to bring on record any evidence that type of deceases, of which complainant was diagnosed, were pre-existing. Repudiation of claim by United India Insurance Company Ltd. and by The Oriental Insurance Company Ltd. was erroneous and do not sound any manifest justification. Foundation of repudiation of complainant's claim by both these insurance company was not stimulated by any medical opinion of doctors on their respective penals. Consequently, both insurer companies have not legs to stand and both have been rightly fastened with respective liability as per their respective insurance covers. There is no illegality, infirmity or manifest error in impugned order dated 28.08.2017 passed by learned District Consumer Commission-Faridabad. It is maintained and affirmed, being outcome of meticulous appreciation of facts and evidence brought on record. Both appeals (F.A. No. 1419 of 2017 and F.A. No. 251 of 2018) being devoid of merits are hereby dismissed.

19. Statutory amount of Rs.25,000/- deposited by appellants in both appeals at the time of filing of appeals be refunded to them, after due identification and verification as per rules and on expiry of period meant for further appeal/revision, if any.

20. Application(s) pending, if any in both appeals stand disposed of in terms of the aforesaid judgment.

21. Original copy of this judgment be kept on record of First Appeal No. 1419 of 2017 filed by United India Insurance Company Ltd. and certified copy thereof be attached with the record of First Appeal No. 251 of 2018 filed by The Oriental Insurance Company Ltd.

22. Copy of this judgment be provided to all the parties free of cost as mandated by the

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Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

23. Files of both appeals be consigned to record room.

Date of pronouncement: 26^th July, 2023 Naresh Katyal

Judicial Member

Addl. Bench-II

[ NARESH KATYAL]

PRESIDING MEMBER

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