Orissa

Kendujhar

CC/10/2016

Smt. Sasmita Sahoo - Complainant(s)

Versus

1. The Branch Manager, Bank of India - Opp.Party(s)

Smt. Jyotirmayee Sarangi & Bishnupriya Tripathy

17 Mar 2017

ORDER

 IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

KENDUJHAR

CONSUMER COMPLAINT CASE NO. 10 OF 2016

    Smt. Sasmita Sahoo, aged about 33 years,

    W/o- Sri Gourahari Sahoo,

    Vill/P.O/P.S- Nayagarh,

    Dist- Nayagarh

    At present- Baneikala,

    P.O/P.S- Joda, Dist- Keonjhar………………………………………...Complainant

                          Vrs.

1. The Branch Manager,

    Bank of India, Joda Branch,

    At/ P.O/P.S- Joda, Dist- Keonjhar

2. The Branch Manager,

    National Insurance Company Ltd.

    Barbil Branch Office,

    At/ P.O/P.S- Barbil, Dist- Keonjhar

3. The Branch Manager,

    National Insurance Company Ltd.

    Branch Office, Keonjhar,

    At/ P.O- Keonjhargarh,

    P.S- Town, Dist- Keonjhar…………………………………………………Op. Parties

PRESENT:

 Shri Purushottam Samantara, President

 Smt. B. Giri, Member (W)

Advocate for Complainant - Smt. Jyotirmayee Sarangi & Bishnupriya Tripathy

Advocate for OP1- Sri Ashok Kumar Dash & Debasis  Rana

Advocate for OP2&3- Sri N.G. Das

_________________________________________________________________________________________ 

Date of Filing - 24.02.2016                                                                                        Date of Order- 17.03.2017

_________________________________________________________________________________________

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. Facts of the case lie in a narrow compass, the complainant obtained one Medi-claim Policy titled “Swasthya Bima Policy” under Bank of India relating to Account No.540110110004144.        

2. It is averred, the first policy issued on dt.22.11.2012 and later deducted the premium amounting to Rs.2,638/- towards consideration, vide D.D. No.33203 from the complainant’s account on dt.21.11.2013 and issued a policy in renewal, bearing No.163301/48/14/ 850000006, on dt.11.04.2014.

3. The complainant stated, she undergone laparoscopic operation on 26.02.2014 for Chronic Calculus Cholecystitis, the hospitalization period of Admission 26 December 2014 and date of discharge 29 December 2014, incurred Rs.50,000/- towards medical expenses.

4. The petitioner also added the subscription of “Swasthya Bima Policy” paid consecutively for Three years the inception being dt.22.11.2012. Necessary claim lodged with the Insurer but the claim is repudiated by TPA on dt.13/04/2015 and National Insurance Company on dt.16.06.2015, against claim No.163301/48/14/ 8590000020 relating to Policy No.163301/48/14/ 850000006 on ground of suppression of pre-existing disease of “DYSPEPSIA” in attraction of Exclusion clause: 4.1 -.

5. The petitioner being aggrieved institute the case praying compensation & cost and necessary relief that deemed fit placed reliance on Repudiation letter, Passbook, Policy copy and letters in photocopies and affidavit.

6. On notice, the Bank of India (hereinafter known) as OP1 appeared in too belated date and contested in contending that the bank had not handed over the Policy in question, petition is not maintainable inter alia petition suffers ambiguity and the proceeding as laid be dismissed.

7. In pursuant to notice, National Insurance Company (hereinafter known) as OP2 &3, admitting the Policy No.163301/48/14/850000006 which covers 11.04.2014 to 10.04.2015. Again the Policy inception is 11.04.2014 and the operation as said underwent on dt.26.12.2014 to 29.12.2014 for Chronic Calculus Cholecystitis by laparoscopic Cholecystectomy and disease dyspepsia was existed for six months prior to inception besides the case is barred of limitation, Cause of action and above all not tenable.

8. Heard the counsels and perused the record.

9. On perusal admittedly policy issued by the Insurer on dt.11.04.2014 vide receipt No. 163301/81/14/850000000170 by National Insurance Company and the span of coverage tends from 11.04.2014 to midnight 10.04.2015 being receipt of premium Rs.2,348/-.

10. When policy is issued, it is deemed confirmed the bank has remitted money and deduction made from SB Account No.540110110004144, which is contended by the bank that on dt.21.11.2013 the bank has remitted Rs.2,638/- by demand draft. Not controverted by documentary evidence so not credible to admit.

11. We also found the savings Bank Account photocopy explicitly speaks an amount Rs.3,393/- has been deducted towards renewal of “Swasthya Bima Premium” which takes no contention on either end of the petitioner or OPs. Amount deducted on dt.07.04.2015 has no privity with policy issued on dt.11.04.2014. The bank cannot absolve his responsibility and latches. The deduction of renewal premium is done in further apprehension of negligence may not be taken in account of the bank.

12. Further we notice, the BOI- Joda has been assigned with an agent code - 92060100002233, so being an agent, the Insurer is vicariously liable in having contributory negligence in non-issuance of policy leading to deficiency of service committed by the agent.

13. It is settled, the bank has Insurable Interest and it is not in evidence that consecutively for 3 years in time the agent has deducted the premium against BOI National Swasthya Bima Policy for Sasmita Sahoo the complainant uninterruptedly the deduction is hap-hazard and denouncement by the bank is amount to misrepresentation of the fact as the pleading reads.

14. Coming to the fact, it is no more disputed, the complainant has gone laparoscopic operation of Chronic Calculus Cholecystitis and admitted on 26 Dec. 2014 & discharge on29 Dec. 2014. But the claim No.DHS15ZO14222 has been repudiated on the ground of exclusion clause.

The Exclusion Clause 4.1 - reads: -

      All diseases/ injuries, which are pre-existing when the cover incepts for the first time. This exclusion will be deleted after three consecutive continues claims free policy year in respect of all diseases provided, there was no hospitalization for pre-existing ailment during such three years of insurance. For this purpose policy /policies issued by other insurance companies for last three continuous consecutive years will be considered, provided there was no hospitalization for pre-existing ailment during such three years of Insurance.   

15. The General Insurance Council of India is a statutory body under the Insurance Act which has defined the term pre-existing disease:

       Definition of a pre-existing disease: - Any condition, ailment, injury or related condition (s) for which you had signs or symptoms, and/or where diagnosed, and/or received medical advice/ treatment, within 48 months before taking your first policy with us. Which is a mandatory provision ordained under Insurance Act and governed by the General Insurance Council of India both for Public & Private Sector Insurance.

      In the present case same mandate is applicable and neither of the diseases raised in application have existed before taking the first policy by the Insured Sasmita Sahoo rather on the assumption that “dyspepsia” is a disease of pre-existing.

        (1)  And also “only on the basis of assumption and presumption, a claim under the policy

cannot be repudiated.

        (2) An Insurance company cannot take advantage of the exclusion clause of pre-existing

              disease and repudiate a claim.

        (3) Again, Hon’ble Bench of Justice S.B. Sinha & V.S. Sirpurkar have ruled that public sector

              Insurance companies cannot refuse to provide medical cover policies to those suffering

              from pre-existing diseases and said such an action was arbitrary, illegal and

              unconstitutional.

16. The TPA and Insurer raised couple of points inclusive operation period and exclusion clause pertaining to pre-existing disease. The operation date as not covered contended by the Insurer, amply speaks the bank has committed negligence not remitting or sending the premium in time for consecutively 3 years to which it is covered from 11.04.2014 to 10.04.2015. It is also not digestible, how the bank deducted an amount of Rs.3,393/- on the date of 07.04.2015 being of no-relevancy to this policy as advance put by them.

17. Further to say even if derailment caused by the bank for non-remitting in 3 consecutive insurance term then also the exclusion is not attracted to the same contract, As because “Dyspepsia” is not the pivotal disease to consider and repudiating on the issue of dyspepsia as pre-existing is no more reasoned one.  Because it is well admitted that Insured operated for Cholecystitis which is a Gallstone disease and a disease of hepto-billiary system caused by cholesterol and bilirubin metabolic disorder and characterized by formation of stones in the gallbladder and biliary tract.

           Whereas Dyspepsia is a common condition and usually describes a group of symptoms rather than one pre-dominant system and the common causes of dyspepsia includes gallbladder pain (biliary colic) or inflammation (cholecystitis) and the medicine that may cause Dyspepsia is no more extra characteristics and demands dyspepsia is not a separate disease rather the ground has been foisted for repudiation in an ill-willed manner.

18. We do not subscribe the same as a disease of separate entity. The rejection of entire claim on such ground is misconceived one. We completely defer to the inflicted opinion made by TPA and not supported by medical evidence that cholecystitis is exclusively different from dyspepsia. Our same view is fortified with the decision that we prefer to place reliance - SBI Life Insurance Company VS Smt. D. Leela Vathe & Anr - “Allegation of Pre-existing disease has to be proved by medical evidence”. Which not accorded with and OPs committed deficiency of service on the above discussed paradigm. Thus we hold the OPs are jointly & severally liable to pay.

Expended Abstract submitted by Sasmita Sahoo

 

                                                      1.     Bill No.22950                                  date 29.12.2014                           Rs.18,700/-

                                                      2.     Receipt No.636                               date 05.06.2014                            Rs.1650/-

                                                      3.     Receipt No.1777                            date 25.12.2014                             Rs.600/-

                                                      4.     Receipt No.5642                            date 25.12.2014                             Rs.600/-

                                                      5.     Receipt No.3719                            date 04.06.2014                             Rs.600/-

                                        6.     Job statement No.33677                 date 02.01.2015                            Rs.500/-

                                                        _________________________________________________________________                      

                                                                                       Total                                                                           Rs.22,650/-

                                                                                             (Rupees Twenty two thousand & six hundred fifty only)

 

O  R  D  E  R

 The case is allowed on contest. The OPs are hereby directed to pay the petitioner a sum of Rs.22,650/- (Rupees Twenty two thousand six hundred fifty only) along with Rs.2000/- (Rupees Two thousand) as compensation and inclusive of cost within four weeks of this order, failing @9% interest per annum will accrue on the entire amount till realization without any fail.

 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 17^th March 2017.          

                                                                                                                                                             

                   I agree                                          

             (Smt. B. Giri)                                                                                     (Shri Purushottam Samantara)

            Member (W)                                                                                                         President                    

         DCDRF, Keonjhar                                                                                             DCDRF, Keonjhar       

 

                                                                                 Dictated & Corrected by me

                                                                                (Shri Purushottam Samantara)

                                                                                          (President)

                                                                                     DCDRF, Keonjhar