DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _125 _ OF ___2017
DATE OF FILING : 25.9.2017 DATE OF PASSING JUDGEMENT: _9.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Shri Krishna Kumar Jalan, son of late Sawal Ram Jalan of 14/6, Bediadanga 1st Lane, Kolkata – 39
O.P/O.Ps : 1. National Insurance Company Limited at Turner and Morison Building, 6 , Lyons Range, 2nd Floor, Kolkata -1.
2. National Insurance Company Limited at Baruipur Branch, Natgora, Baruipur, near St. Xavier’s College School, Kolkata – 144.
3. Genins India Insurnace TPA Ltd. at 15, Ganesh Chandra Avenue, 3rd floor, Kolkata – 13.
4. NH Rabindranath Tagore International Institute of Cardiac Sciences at 124, Eastern Metropolitan Bypass , Premises no. 1489, Mukundapur, Kolkata – 99.
5. Dr. Jyotishka Pal, of NH Rabindranath Tagore International Institute of Cardiac Sciences at 124, Eastern Metropolitan Bypass , Premises no. 1489, Mukundapur, Kolkata – 99.
6. Dr. Rakesh Sharma, of NH Rabindranath Tagore International Institute of Cardiac Sciences at 124, Eastern Metropolitan Bypass , Premises no. 1489, Mukundapur, Kolkata – 99.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing of the instant case by the complainant is that complainant has a Mediclaim Policy being no. 101600/48/15/8565000410 with the Insurance Company i.e O.P nos. 1 and 2 extending over a period of 20 years. On 21.5.2016 he got himself admitted to R.N Tagore International Institute of Cardiac Science at Calcutta with high fever and unbearable headache on the advice of Dr. Jyotishka Pal ,O.P-5. There he was treated by O.P-5 and another Doctor namely Dr. Rakesh Sharma i.e O.P-6. The O.P-3 is the third party Administrator (TPA) ; he visited the complainant in the hospital. The claim of the complainant for cashless treatment was rejected by him i.e O.P-3. Complainant was discharged from the hospital on 24.5.2016 and he had to pay Rs.40,563/- to the hospital authority. Thereafter on 7.6.2016 he submitted a claim before the Insurance Company for reimbursement of Rs.40,563/- . But this claim of the complainant was repudiated by the Insurance company on the ground that hospitalization was not necessary in the said case. The complainant has, therefore, filed the instant case ,praying for payment of Rs.40,563/- as reimbursement for medial expenditure with interest, Rs.50,000/- as compensation for harassment and mental agony and further a sum of Rs.50,000/- towards the litigation cost. Hence, this case.
The O.P-4 is the hospital itself and O.P nos. 5 and 6 are the doctors who rendered treatment to the complainant in the said hospital. They have filed written statement , wherein it is contended by them that there is no allegation of medical negligence nor any deficiency in service against them. There has also arisen no cause of action against them and, therefore, the case should be dismissed in limini against them with exemplary cost.
Written statement is filed by the Insurance Company i.e O.P nos. 1 and 2 ,wherein it is contended inter alia that the complainant was admitted for a conservative treatment. No treatment was done in the hospital and the diagnostic treatment was available to the complainant on OPD basis. According to the O.Ps, the claim of the complainant is not covered in the policy due to interaction of exclusion clause 4.19 and 4.22 of the Policy. There is no active line of treatment done by the complainant in the hospital and, therefore, no deficiency in service has been caused on behalf of the Insurance Company by repudiating the claim of the complainant for reimbursement.
O.P-3 has also filled a written statement but the version of this written statement appears to be similar to that of the written statement filed by the O.P nos. 1 and 2.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Have the O.P nos. 1 and 2 made themselves liable to the complainant for causing deficiency in service by repudiating the claim of the complainant for reimbursement of medical expenditure?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the complainant and the O.P nos. 4 to 6 have filed evidence in chief. Written version filed by the O.P nos. 1 and 2 is treated as their evidence vide a message dated 21.2.2018. BNAs filed are kept in the record.
DECISION WITH REASONS
Point no.1 , 2 3 :
Admittedly, the complainant is a mediclaim policy holder of O.P nos. 1 and 2 and the policy is in force still now. The complainant was admitted to O.P-4 hospital on 21.5.2016 ,having felt high fever and unbearable headache ,on the advice of Dr. Jyotishka Pal, O.P-5. He was discharged from the said hospital on 24.5.2016. O.P nos. 5 and 6 treated the complainant in the said hospital and they have stated so in the written statement and evidence is also filed by them. These facts are not at all disputed.
What is disputed by the Insurance Company i.e O.P nos. 1 and 2 is that the complainant is not entitled to get any medical reimbursement from them on the strength of his mediclaim policy, because the exclusion clause of the said policy has ousted the complainant. In the context of such averment of the Insurance Company, we do feel that it is none but the Insurance Company upon whom lies the burden of proof that the complainant is not entitled to get the reimbursement as prayed for by virtue of exclusion clause of the policy. It is incumbent upon the Insurance Policy i.e O.P nos. 1 and 2 to prove the terms and conditions of Insurance Policy before the Forum in order to get the benefit of exclusion clause. But no such policy has been produced before the Forum by the O.P nos. 1 and 2. Mere averment that complainant is not entitled to get the benefit of reimbursement due to exclusion clause no.4.19 and 4.22 of the policy is considered to be not enough to discharge the burden of proof by the Insurance Company. The Insurance Company should have produced that policy before us. By not producing that policy before us ,they have not given scope to us to examine whether the case of the complainant does actually fall within the jaws of exclusion clause of the policy. In our opinion, an adverse inference can be drawn against the Insurance Company to the effect that the case of the complainant is not hit by exclusion clause of the policy and, therefore, the Insurance company i.e O.P nos. 1 and 2 have not produced the Insurance Policy before the Forum for the fear that the cat will be out of the bag.
Be that as it may, we do feel that the O.P nos. 1 and 2 have not been able discharge the burden of proof and, therefore, their contention that the complainant is excluded from getting the benefit of mediclaim policy seems to be apocryphal. Complainant is, therefore, entitled to get the mediclaim reimbursement from the O.P nos. 1 and 2 and the repudiation of his claim by O.P nos. 1 and 2 seems to be unjust and unlawful and, therefore, such repudiation is nothing but deficiency in service on the part of the O.P nos. 1, 2 and 3.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P nos. 1,2 and 3 with cost of Rs.10,000/- and dismissed on contest against O.P nos. 4,5 and 6.
The O.P nos. 1,2 and 3 are directed to pay a sum of Rs.40,563/- to the complainant with interest @9% p.a from the date of submission of the claim ,within a month of this order ,failing which the said sum along with cost as referred to above will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
