- (1.) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Sri Umesh Narain Sharma, seeks the following reliefs: " (i) issue a writ, order or direction in the nature of certiorari quashing the order dated 13-6-2005 issued by the respondent No. 2 (Annexure `1' to the writ petition); (ii) issue a writ, order or direction in the nature of mandamus commanding upon the respondents to pay the claim of Rs. 3. 31 lacs to the petitioner in respect of the expenses incurred in the treatment of the petitioner; (iii) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper and to which the petitioner may be found entitled to in the facts and circumstances of the case; (iv) award costs of this petition to the petitioner. "
(2.) BRIEFLY stated, the facts giving rise to the present petition are as follow: The petitioner is a Senior Advocate of this Court. He had taken a mediclaim insurance policy from the New India Assurance Company Limited, Allahabad, respondent No. 3, which is a subsidiary of the General Insurance Corporation of India. It is a Government Company wholly managed and controlled by the Government of India. According to the petitioner, he was insured by the respondent No. 1 for the first time on 24-11-1998. It was renewed from time to time and except for some break in renewal during the year 1999 and 2000, the mediclaim insurance policy had been in force continuously for the last 5 years since 30-1-2001. The particulars of the policy, period of insurance and also the claim, if any, preferred by the petitioner is given below: Policy No. Period of Insurance Claim made 4208014807021 24-11-1998 to 23-11-1999 NIl 4208014807955 17-1-2000 to 16-1-2001 NIl 4208014808652 30-1-2001 to 29-1-2002 NIl 4208014809832 30-1-2002 to 29-1-2003 NIl 4208014800509 30-1-2003 to 29-1-2004 NIl 4208014800915 30-1-2004 to 29-1-2005 NIl 4208014875129 30-1-2005 to 29-1-2006 Claim in question The mediclaim insurance policy taken by the petitioner was for a sum of Rs. 2/- lacs. According to the petitioner, while getting himself insured, he had disclosed all material facts as required by the Insurance Company, including the details of his health condition and at the time of taking the mediclaim insurance policy on 24-11-1998, he did not suffer from any ailments or heart disease nor did he had any symptom of any cardiac problem. In the first week of March, 2005, the petitioner had some complaint regarding his health and on medical advice, he got himself checked up and was admitted on 18-3-2005 at Kailash Heart Institute, H-33, Sector-27, NOIDA for treatment of heart disease under Dr. D. S. Gambhir, M. D. , D. H. , F. A. M. S. The petitioner underwent angiography in which it was found that there was blockade in the arteries. The petitioner was advised for angioplasty which he underwent and was discharged from the hospital on 22-3-2005. The petitioner made a claim for reimbursement of the medical expenses for a sum of Rs. 3. 31 lacs which he had incurred on account of treatment of his disease and hospitalisation, by submitting the claim form dated 23-3-2005. The respondent No. 1 verified the claim and vide letter dated 13-6-2005 rejected the claim on the following grounds: "it is noted from the insurance certificate that there was a break in policy while renewal in 2001. The patient is a known case of CAD since 2005 (5 years ). Hence the disease is pre-existing and the claim is not payable. " The rejection of the claim is under challenge in the present writ petition on the ground that the stand taken by the Insurance Company is arbitrary; that the petitioner had been insured with the respondent No. 1 with effect from 24-11-1998 and since then the mediclaim insurance policy is continuing; the break in the continuity of the policy for 13 days, i. e. , from 17-1-2001 to 29-1-2001 would have no material bearing and as the Insurance Company had continued to renew the policy on year to year basis on the same terms and conditions for the last more than 5 years; it is not open for it to refuse to honour the claim on the ground that the disease was pre-existing or that there was break in the renewal of the policy; in any event, the petitioner did not have any cardiac problem in the year 2000 and the rejection of the claim is based on wholly irrelevant material and consideration and the invocation of clause 4. 1 of the mediclaim insurance policy is wholly arbitrary.
(3.) IN the counter-affidavit affirmed by Shailendra Shukla, Deputy Manager, Legal, on behalf of the INsurance Company, it has been stated that the petitioner has not revealed his health condition on 30-4- 2001 (the date appears to have been wrongly mentioned as 30-4-2001 whereas it is 30-1-2001 when the fresh policy was issued) when the policy had expired on 16-1-2001 and a fresh policy was issued on 30- 1-2001. The policy issued on 30-1-2001 is actually a fresh policy with fresh proposal form and the petitioner had declared that there was no pre-existing complaint regarding his health. The condition of clause 4. 1 of the policy has rightly been invoked. In the rejoinder affidavit filed by the petitioner it has been stated that the break in the policy has no bearing on the merits of the case as he had made the claim against the policy for the period 31-1-2005 to 29-1-2006 and 14 days break between the policy of 2000-2001 has no bearing. It has been reiterated that the petitioner was not a known patient of CAD. According to the petitioner, clause 4. 1 of the policy cannot be enlarged and interpreted in such a wide manner so as to preclude the policy holder from the claim and from a conjoint reading of clauses 3 and 4. 1, it would be abundantly clear that any disease or illness that relapses within 45 days from the last consultation/treatment would be treated to be the same illness. However, if it relapses after lapse of 45 days, it would be considered to be a fresh illness. The claim made by the petitioner is for the policy of 2005-06 whereas the petitioner is having the policy since 1998-99 and during the said period, there is no instance of any disease or illness that relapsed after 45 days for which the petitioner was treated in the year 2005-06. On the contrary, the disease was not pre-existing. The interpretation being adopted by the Insurance Company is totally against the public policy and is violative of Section 23 of the Contract Act as the standard form of the agreement has been imposed by the Insurance Company and the petitioner had to sign on the dotted lines and was not permitted to bargain the terms and conditions. If such an interpretation as made by the Insurance Company is accepted, it would result in payment of no claim in any condition.;