JUDGEMENT

          Complainant for the purpose of recovery of Medical expenses obtained General Health Insurance Plan on 05.09.2008 on payment of premium to the op who by turn issued a policy bearing No.OG-09-2401-9961-00331500 dated 05.09.2008 and the said insurance covers not only the complainant no.1 but also his family members including his wife, his son and his daughter and the entire insured amount is Rs.2,00,000/- each covering the illness of each insured and the said policy was valid for one year for the period from 12.09.2012 to 11.08.2013 and it was renewed from 2008.

          Unfortunately during continuation of the policy complainant no.2 dependent daughter of the complainant no.1 who was then 18 years old, seriously fell ill and it was detected after investigation by the doctor that she was suffering from chocolate Cyst with multiple intestinal adhesion in urinary bladder and other problems on 03.07.2012 and as per the advice of her attending physician Dr. Sugata Banerjee, she was advised to undergo Sonography when it was also detected that she had gall bladder stones.

          Subsequent to detection as per the advice of the doctor and attending physician her daughter Prerona was admitted in the Park Clinic for undergoing surgical procedure being the normal practice adopted in such type of disease.

          On 20.08.2012 Prerona underwent surgery at Park Clinic Nursing Home and was discharged on 30.08.2012.  Since Prerona was under the coverage of Insurance Policy and complainant no.1 as guardian and father of the complainant no.2 Prerona sought for cash less benefit and as per normal procedure complainant no.1 informed the hospital and hospital authority processed the entire papers and immediately sent to the Insurance company for release of the claim amount and such claim was made on 25.09.2012 and received on 26.09.2012 by the op.  But unfortunately on receipt of the claim lodged by the complainant no.1 for the complainant no.2 op did not issue any cash less benefit.  Though complainants were entitled to get it as per coverage of such medical insurance policy and in the above situation complainant was compelled to clear up all hospital dues for daughter’s treatment and that was Rs.1,70,245.50 paisa.

          Being deprived of the benefit of the insurance coverage at the time of exigency, the complainant has been suffering much mental pain and financial stringency and also it has caused mental pain and agony to the complainant.  Subsequently complainant went to the office of the op who instructed the complainant no.1 to lodge a claim and assured that they would look into the matter and immediately release the claim and accordingly complainant on 11.11.2012 received an E-mail message from the op conveying that benefit will not be available as aforesaid claimant was hospitalized for treatment of huge chocolate cyst/multiple intestinal adhesion to right and left urinary bladder and having history of necrotizing enterocolitis at the age of 7 days for which underwent exploratory laparotomy with excision of necrosed segment jejunum and upper llium with multiple enterostomies, and current diagnosis is complication of previous surgeries done and is pre existing to the policy.

          But anyhow the above observation of the op are completely incorrect and has been intentionally made to deprive the legitimate claim of the complainants in spite of the fact that the complainant no.2 was insured and fully covered under the valid insurance policy.  Further it is stated that the observation is absolutely mala fide and it can be seen from the medical certificate issued by the doctors Dr. Sugata Banerjee and Dr. Sujanta Mishra and that same are not pre-existing disease and so the complainant is entitled to same.  But op with mala fide intention repudiated the claim showing that it is pre-existing disease and that observation is without any foundation and for which the complainant has prayed for release of the said amount with cost and compensation.

          On the other hand op by filing written statement submitted that there was no laches or deficiency on the part of the op and complainant approached before this Forum with uncleaned hands and purposely suppressed the material fact and no doubt she was admitted for operation and operation was done during the period from 20.08.2012 and was discharged on 30.08.2012 and claim was made.  But fact remains that complainant never disclosed that Prerona had undergone an operation at the age of 7 days.  But the certificate of Dr. S. Basu clearly discloses that Prerona was hospitalized for treatment of huge chocolate cyst/multiple intestinal adhesion to right and left urinary bladder and having history of necrotizing enterocolitis at the age of 7 days for which she underwent exploratory laparotomy with excision of necrosed segment in jejunum and upper illium with multiple enterostoutles and current diagnosis is complication of previous surgeries done.  So it is clear from the certificate of Dr. Sugata Basu that the illness is pre-existing and for which the claim was inadmissible and for which it was not released.  So, there was no laches on the part of the op and for which the present complaint should be dismissed.

                                                          Decision with reasons

          On proper study of the complaint and including the written version and also the materials on record that is the discharge summary, it is clear that Prerona complainant nop.2 the daughter of complainant no.1 was admitted to Park Clinic Nursing Home on 19.08.2012 and was discharged on 30.08.2012 and no doubt after final diagnosis huge chocolate cyst/multiple intestinal adhesion to right and left urinary bladder was detected and for which treatment was given and that Dr. S. Basu was done that is “exploratory laparotomy through transverse rectus muscle cutting incision revealed multiple intestinal adhesion which were lysed and a huge chocolate cyst with adhesion to right + left fallopian tubes, sigmoid colon, small intestines, urinary bladder was removed.  Cholecystomy was done for calculous cholecystitis.  Abdomen was closed in layers”.  But op has relied upon two certificates of Dr. S. Banerjee dated 19.10.2012 and Dr. S. Mishra dated 01.11.2012 and in the said certificate there is a history that there was a past history of surgery at the age of 7 days has no relation with the present operation or disease and doctor has specifically mentioned that regarding the operation which was done at the age of 7 days of complainant no.2 is no way related with the present operation and the present disease is completely new one and laparotomy was done.  But from the said certificate it is not evident that doctor has opined that the operation which was done at the age of 7 days of complainant no.2 had any direct connection with the present disease or operation.  But anyhow the present op has tried to convince that the present disease and operation is continuation of the operation at the age of 7 days.  But anyhow after considering the opinion of the doctors who operated the complainant no.2, it is clear that ailment like huge cholocate cyst and multiple stones in Gall Bladder are not at all linked with the previous operation what she had undergone when she was 7 days old. 

          Moreover Dr. S. Banerjee in his letter on 19.09.2012 has clearly expressed that the present current disease is a new one and there is no connection with suffering when she was 7 days only.  But anyhow the op on the basis of those certificates of the doctors came to a negative opinion that the present disease is the continuation of the past disease what she suffered at the age of 7 days.  But regarding this decision or opinion of the op there is no confirmative decision of any expert doctor or the doctor who operated the complainant no.2 and said doctors are not been examined for cross examination by calling them before this Forum to determine whether the past disease at the age of 7 days of Prerona was the continuation of the present disease for which she was operated by them.

          In the context on perusal of the record it reveals that there was no question of suppression of disease and if actually it was the continuation of the disease what she suffered at the age of 7 days in that case op must have to prove that since her age of 7 days she has been suffering from the present disease.  But after study of the medical journals and authoritative books of surgery, it is found that the present disease is completely different in nature and it has no relation with the past disease what she suffered at the age of 7 days.

          Practically at the age of 18 years, the present operation was done whereas the past operation was done at the age of 7 days that means long after 18 years new type of diseases were detected.  So, it has got no connection with past disease but anyhow op has repudiated the claim deciding that it is the continuation of the past disease and no doubt such sort of observation of the op is baseless and without any foundation and when the doctors operated the complainant no.2, have specifically mentioned in their certificates that it was not the outcome of past history of disease what Prerona suffered at the age of 7 days.

          But peculiar factor is that it was not considered by the op.  But op took a negative view that is completely baseless without any jurisdiction and without any motive repudiated the claim of the complainant stating that it is pre-existing disease.  But on introspective study of the new medical journals and including the present certificate of the doctors and the discharge summary it is difficult to believe that such a major ailment was a continuation of the disease what the complainant no.2 suffered at the age of 7 days.  In fact medical science does not support the decision of the ops and there is no question of suppressing material fact at the time of renewing the mediclaim policy by the complainant and there was no fault and for which we are confirmed that there is illegality, irregularity and deficiency in repudiating the claim and in this respect the ruling what are referred by the op (RP No.2749/06) of National Commission dated 13.12.2011, (RP No.4678/2009) of National Commission dated 20.05.2013 and FA No.305/2013 of Haryana State Commission dated 13.05.2013 are not at all applicable in this case because the fact as disclosed in those cases are no way related with the present fact and circumstances for which we cannot rely upon those rulings in respect of the ops’ version that it was suppression of fact.

          But truth is that it is neither it is suppression of fact as claimed by the op, nor it is pre-existing disease of the complainant no.2 Prerona.  In the light of the above fact and circumstances and materials we are convinced to hold that the repudiation as made by the op is completely uncalled for, without any foundation and without any medical evidence.  In this context it is to be mentioned that in most of the cases private insurance companies particularly in case of mediclaim are repudiating the claim of the insured in so many cases and practically they have their no desire to give mediclaim but they are only for collecting premium against mediclaim and that is expression of this Forum in view of the fact in most of the cases that is the expression of the Insurance company.

          No doubt insurance companies are born for the purpose of collecting premium but they are not born to give the effect of insurance coverage.  Truth is that in India the private insurance companies are practically continuing their business only relying upon the investment that is premiums.  They have their no duty or responsibility to give the relief when the cause is arisen and when the claim is submitted by the mediclaim insured then and there it is rejected showing some loopholes created by them and it is one of the example out of lakhs.

          In the light of the above findings we are allowing this complaint holding that the patient Prerona had not been suffering from any pre-existing disease and there is no question of suppression of any fact because the complainant and his family members are continuously holding the policy since 2008 and in the meantime 5 years already expired and so invariably when continuously 4 years complainant renewed their policy for 5^th year policy then invariably they are also entitled to get mediclaim amount as per provision of the policy conditions and in the details policy conditions there is a clause that if any person continues his or her mediclaim upto 5 year in that case on completion of 4^th year there is no question of pre-existing disease and in the 5^th year even for pre-existing disease also one insured can get the benefit and that has been suppressed by the op also and that is the practice of the op insurance companies.

In our conclusion we are to mention that in constituting the scope of social welfare enactment and the ground realities of life of the common people have to be taken into consideration and relief must be given in favour of the consumers in view of the another ruling reported in AIR 1966 Supreme Court 1644.

          In view of the above findings, the present complaint succeeds.

          Hence, it is

                                                               ORDERED

         That the complaint be and the same is allowed on contest with cost of Rs.5,000/-against the ops.

Accordingly the op is hereby directed to release the sum of Rs.1,70,245/- as complainant’s mediclaim after disposing of the claim as submitted by the complainant to the op which was rejected by the op illegally.

For further harassment and mental pain and agony, op shall have to pay a sum of Rs. 20,000/- to the complainant.

Op is hereby directed to comply the order by satisfying the decree in favour of the complainant within one month from the date of this order failing which for non-compliance of Forum’s order and also for disobeyance of the Forum’s order op shall have to pay penal damages @ Rs.300/- per day till its full satisfaction.

          For adopting unfair trade practice for repudiating the claim op shall have to pay punitive damages to the extent of Rs.10,000/- which shall be paid to this Forum within one month.

Op shall have to comply the order within the stipulated period failing which penal action shall be taken against them for which they shall also be fined further and even they may be sent to jail for their reluctant attitude to comply this order.