JUDGMENT Mr. Vinod S. Bhardwaj, J. (Oral) Challenge in the present petition is to the award dated 12.04.2017 passed by the Permanent Lok Adalat (Public Utility Services), Gurgaon, whereby the claim of respondent No.2-applicant has been allowed and the petitioner-Insurance Company has been directed to pay a sum of Rs.95,367/- to the respondent-applicant. 2. Briefly summarized the facts of the instant case are that the respondent/applicant had purchased a mediclaim policy from the petitioner-Insurance Company, which was valid for the period from 07.07.2012 to 04.07.2013 and the same was further renewed upto 04.07.2014. On 11.12.2013, however, the respondent-applicant suffered a severe pain for which she was admitted in Aarvy Hospital, Gurgaon. She underwent a surgery for removal of large stone and was discharged from the hospital on 14.12.2013. The hospital raised a bill of Rs. 42,076/-. The respondent-applicant was however re-admitted in the hospital on 30.12.2013 and she remained admitted upto 04.01.2014 causing additional expenses of Rs.53,291/- towards her treatment. A claim in this regard was lodged by the respondent with the petitioner-Insurance Company for reimbursement but the petitioner-Insurance Company repudiated the claim on 30.01.2014 on the ground that the coverage of medical expenses on treatment for stones in the urinary system, during the first two years in the policy, is not payable. Respondent No.2, thus, filed an application under section 22(C) of the Legal Services Authorities Act, 1987 (for short 'the Act') before the Permanent Lok Adalat (Public Utility Services), Gurgaon, alleging that the above terms and conditions of the policy had not been explained to her. 3. The petitioner-Insurance Company entered appearance and filed its reply and defending its decision. It relied upon the exclusion clause to justify the order of repudiation of the claim. 4. On failure of the conciliation efforts to fructify in any amicable resolution of the dispute, adjudication under Section under section 22(C)(8) of the Legal Services Authorities Act, 1987 was undertaken by the Permanent Lok Adalat. 5. Parties led their evidence and on consideration thereof, the Permanent Lok Adalat allowed the application and directed the Insurance Company to pay a sum of Rs.95,367/- to respondent No.2-applicant within a period of 40 days, failing which the Company was held liable to pay interest on the said amount @ 9% per annum from the date of application i.e. 07.08.2014 till the date of actual payment. Aggrieved thereof, the present writ petition has been filed. 6. Aggrieved thereof, the present writ petition has been filed. 6. Learned counsel appearing for the petitioner has placed reliance on the terms and conditions of the policy, as per which the company was exempted from meeting out the liabilities under Clause 2 of cover note specifying exclusion circumstances. The relevant exclusion reads thus: "We will also not pay for claims arising out of or howsoever connected to the following: Without derogation from B1) above any Medical Expenses incurred during the first two consecutive annual periods during which you have the benefit of Star Package Policy Covering Health Guard Section with Us in connection with any types of gastric or duodenal ulcers, cataracts, benign prostatic hypertrophy, hernia of all types, hydrocele, all types of sinuses, fistulae, haemorrhoids, fissure in ano, dysfunctional uterine bleeding, fibromyoma, endometriosis, hysterectomy, stones in the urinary and biliary systems , surgery on ears/tonsils/adenoids/paranasal sinuses, surgery for any skin ailment, Surgery on all internal or external tumours/cysts/nodules/polyps of any kind including breast lumps with exception of Malignant tumor or growth. This exclusion period shall apply for a continuous period of a full 4 years from the date of your first star package Policy Covering Health Guard Section with us, if the above referred illness were present at the time of commencement of the policy and if you had declared such illness at the time of proposing the policy for the first time. In case of enhancement of Sum insured the waiting periods shall apply afresh only to the extent of the amount by which the limit of indemnity has been increased (i.e. enhanced sum insured) if the policy is a renewal of Health Policy without break in cover." 7. Relying on the above-said exclusion clause, it is argued that the petitioner-Insurance Company is not liable to defray the medical expenses incurred during the first two consecutive annual periods in connection with stones in the urinary or biliary systems. Since in the present case, respondent No.2-applicant was diagnosed with stone in kidney during the said period, for which a procedure was undertaken, hence, the exclusion clause is attracted and the petitioner-Insurance Company cannot be held liable to pay the same. 8. Since in the present case, respondent No.2-applicant was diagnosed with stone in kidney during the said period, for which a procedure was undertaken, hence, the exclusion clause is attracted and the petitioner-Insurance Company cannot be held liable to pay the same. 8. Responding to the above, learned counsel for respondent No.2 has placed reliance on a Division Bench judgment of this Court in the matter of Iffco Tokio General Insurance Company Ltd. v. Permanent Lok Adalat, 2012 (2) PLR 547 to contend that the exclusion of pre-existing disease is the standard form of contract, the Courts can strike down such unfair and unreasonable clauses as there is an unequal bargaining power and there is no real freedom to contract. Reliance is placed on para 5 thereof which reads thus:- "5. Having heard learned counsel for the petitioner-appellant we are of the considered view that no interference of this Court would be warranted in the view taken by the learned Single Judge as well as the Lok Adalat. The law is well settled with regard to the exclusion clauses in standard forms of contracts. When the bargaining powers of the parties is unequal and a consumer has no real freedom to contract then such a power may be considered unfair. The principle deducible from various precedents is that the Courts would not enforce and when called upon to do so, strike down such an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle would apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It would also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contract to which the principle formulated above applies to terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void. The types of contract to which the principle formulated above applies to terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void. In that regard we may place reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, Ganguly, AIR 1986 SC 1571 ." 9. Reliance was also placed upon the judgment in The Oriental Insurance Co. Ltd. v. Naresh Sharma & ors., 2015 (2) PLR 75 . The relevant Para 14 of the said judgment is extracted as under:- "14. As per the consistent view of the Hon'ble Supreme Court with regard to the terms of contract of an insurance policy, the following rules can be followed:- (i) the insurer is not at a week bargaining position while entering into the terms of the insurance policy; (ii)the exclusion is misleading and creating unnecessary confusion for repudiating the claim of the applicant; (iii)whether after accepting reasonable clauses of exclusion, the applicant can be paid or reimbursed the claim; (iv) whether the exclusion clause 4.3 was entered into by the applicant in good faith ad is not misleading." 10. No other argument has been advanced or judgment has been cited by any learned counsel for the parties. 11. I have heard learned counsel for the respective parties and have gone through the documents appended along with the present petition as also the judgments cited by learned counsel for respondent No.2. 12. The controversy in the present case confines itself only to the scope of the exclusion clause. It is not in dispute that the policy document contains an exclusion against reimbursement of expenses for the procedure undertaken for removal of the kidney stone for a period of two years from the date of issuance of the policy and it is also not in dispute that the above-said surgical procedure was undertaken within a period of less than two years. The reliance of the respondent-applicant for justifying the order passed by the Permanent Lok Adalat (Public Utility Services), Gurgaon, is on the above-said judgments and to contend that the clause of exclusion was unconscionable and hence, is liable to be struck down. The additional benefits under mediclaim policy thus cannot be denied. 13. The reliance of the respondent-applicant for justifying the order passed by the Permanent Lok Adalat (Public Utility Services), Gurgaon, is on the above-said judgments and to contend that the clause of exclusion was unconscionable and hence, is liable to be struck down. The additional benefits under mediclaim policy thus cannot be denied. 13. To the contrary, the arguments advanced by the petitioner was that there was specific condition incorporated in the contract and an exclusion has been carved out. Thus, when the parties have bargained for a specific policy and the premium had been paid for the same, it does not entitle the respondent-applicant at any point later in time to contend that he was not bound by the terms of the agreement. It is also submitted that every opportunity was available to the beneficiary/insured to return the policy and to seek a refund and/or to raise a challenge to the terms and conditions of the policy. The terms and conditions in the policy documents cannot be revisited after a claim has already been declined. 14. Since there is no factual dispute, hence it has become imperative to advert to the judgment cited by learned counsel for respondent No.2. 15. So far as the Division Bench judgment in the case of Iffco Tokio General Insurance Company Ltd. (supra) is concerned, the insured therein had availed a mediclaim policy for himself and his wife. The exclusion clause thereof provided that the same would cease to apply for such pre-existing condition if the insured person has maintained an individual Medishield Insurance Policy for a consecutive three years period prior to the policy coverage in issue. The said policy was renewed from June, 2008 to June, 2009 and again from June, 2009 to June, 2010. The insured was hospitalized for treatment of Coronary Artery disease. The claim for the Insurance was, however, declined on the ground that he was seeking treatment of the heart disease which he was suffering from the last 8 years and the same was found to be a case of pre-existing disease covered under the exclusion clause. The application preferred by the insured was allowed against which a writ petition was filed. The application preferred by the insured was allowed against which a writ petition was filed. The writ petition was dismissed on the ground that defence sounded unfair and that he had been paying the mediclaim policy for a period of three years and the object behind the policy would stand defeated if the claim has been denied for such a reason. The Letters Patent Appeal against the same order was dismissed. 16. It is evident from a perusal of the above-said judgment that the exclusion would have come to an end on expiry of three year period and that the insured was less than three months short of coming out of the exclusion clause when he was hospitalized on account of his heart disease. Hence, an equitable view was adopted by the Court. In so far as the judgment in the matter of Oriental Insurance Company (supra) is concerned, para 14 of the said judgment lays down the general principles required to be followed under the insurance contracts. Para 15 of the said judgment, however, supports the cause of the petitioner-Insurance Company. The Court ruled that the insurance company is entitled to disallow the claim with respect to the ailments falling within the exclusion clause but not for the others. Thus, the petitioner cannot derive any strength from the said judgment. 17. It is well settled position in law that a commercial contract like the contract of insurance has to be seen primarily with respect to consensus amongst the parties. The settled legal position is that exclusion clause in insurance policies cannot generally be ignored. These clauses are legally binding terms and conditions and outlining specific situations, conditions or types of damages that the insurance policy does not cover. An exclusion clause however might not be enforceable or could be challenged when it is ambiguous; contrary to public policy; misrepresentation or non-disclosure of the exclusion clause of the policy; or where it is unconscionable. A clause is thus required to be overly harsh or unfair to the insured to be unconscionable. A contract of insurance does not become unconscionable merely because there is an exclusion clause. The Hon'ble Supreme Court has nowhere held that an exclusion clause in a contract is onerous or unconscionable, rather, it has examined the clause on the given facts. A clause is thus required to be overly harsh or unfair to the insured to be unconscionable. A contract of insurance does not become unconscionable merely because there is an exclusion clause. The Hon'ble Supreme Court has nowhere held that an exclusion clause in a contract is onerous or unconscionable, rather, it has examined the clause on the given facts. Unless the clause is shown to be in conflict with the policy or is contrary to the very object, the clause would be enforceable provided the person relying on the clause is able to bring the case squarely within the exclusion. Reasonable construction and effect has to be given to the exclusion clause as per the judgment of the Hon'ble Supreme Court in the matter of Sangrur Sales Corporation v. United India Insurance Company Limited & Anr., reported as (2020) 16 SCC 292 . Further it was held by the Hon'ble Supreme Court in the matter of Texco Marketing (P) Ltd. v. Tata AIG, reported as (2023) 1 SCC 428 that an exclusion clause in a contract of insurance cannot be understood to be in conflict with the main purpose for which an agreement is executed. Such a clause has to be understood on the prison of the main contract and has no ability to destroy the main contract. The burden however is to be discharged by the one relying on it. Further, it was held in the matter of United India Insurance Co. Ltd. v. Pushpalaya Printers: (2004) 3 SCC 694 , that the intention of the parties has to be gathered from the term used in the policy. In all the precedent judgments, the exclusion clause has been examined in light of the specific policy and facts but has not been struck-off as an outright unconscionable clause. Thus, a sweeping interpretation cannot be adopted and facts of each case need to be examined. In the said background, it has to be seen as to whether the exclusion clause in the policy is vague, unconscionable or is opposed to the policy itself. It is evident from a perusal of the clause that the same is unambiguous and does not eclipse the main contract rather only excludes the liability for such occurrence for a limited period of 2 years of commencement of policy. It is evident from a perusal of the clause that the same is unambiguous and does not eclipse the main contract rather only excludes the liability for such occurrence for a limited period of 2 years of commencement of policy. The same is rather in the nature of a gestation period for certain specified nature of medical treatments to be covered under the policy. It is incomprehensible as to how a limited exclusion would eclipse the main contract. Besides, a perusal of the policy document shows that the exclusions are mentioned at the commencement of the policy document. It cannot be perceived that the insured was not aware of the same. 18. It is under certain terms and conditions that the Insurance Company had under written liability for which it undertakes to indemnify the insured. A presumption in law is that an insured is apprised of the terms and conditions of the policy document and may seek a refund during the free look period. Besides, an insured may also avail certain additional insurance covers, on payment of additional premium, as may be assessed by the Insurance Company. When an insured opts for a specific medical cover, the exclusions are pivotal in determining the liability of the Insurance Company as the said aspect is fundamental and reflects the understanding of contracting parties. Any alternation in terms and conditions of the policy document unilaterally, later in point of time, and on the asking of the insured, would amount to changing the condition of the policy. 19. Besides, the respondent had every opportunity to challenge the unconscionable terms of the contract, if so aggrieved, before a competent Court, however, the same was not done. In the absence of any challenge to the terms and conditions of the contract, the same may not be read down or be diluted and have to be determined on case to case basis. 20. I find that the Permanent Lok Adalat committed an error in not not appreciating the terms and conditions of the contract including the exclusion clause and giving effect to the same. 20. I find that the Permanent Lok Adalat committed an error in not not appreciating the terms and conditions of the contract including the exclusion clause and giving effect to the same. The self serving statement about a mistake and/or lack of knowledge as regards the exclusion clause does not mean with-holding the clause and may not be sufficient at this juncture, when the claim had already been repudiated, to hold that the clause of the contract was unconscionable and to direct discharge of the financial liability, which goes to the root of the case. The award was thus contrary to terms of the contract and is hence, liable to be set aside. 21. Accordingly, the present writ petition is allowed and the award dated 12.04.2017 passed by Permanent Lok Adalat (Public Utility Services), Gurgaon, in Application No. 510 of 2014 titled 'Mrs. Usha Sharma v. M/s Bajaj Allianz General Insurance Company Ltd.', is set aside.