West Bengal

Birbhum

CC/2014/70

Bisweswar Rooj - Complainant(s)

Versus

Branch Manager, L.I.C.I. - Opp.Party(s)

Sanjit Kr Acharya

12 Mar 2019

ORDER

The case of the complainant Bisweswar Rooj in brief is that the he purchased a ‘’LIC’s Jeevan Arogya (Table 903)” Policy form the O.P. No.1 being Policy No. 448700821 dt.14.02.2013 for himself and his wife namely Rakhi Rooj and his daughter namely Krishna Rooj. 

            It is the further case of the complainant that  wife of complainant got a complain of pain of upper abdomen and for that she was treated by Dr. Ashim Bhattacharya and after examining the patient /insured doctor advised her to get examination of USG of whole abdomen and accordingly patient/insured got USG of her whole abdomen at Modern Diagnostics, Suri under the supervision of Dr. Avishek Dey, M.D., (Radio Diagnosis) and on examining USG report Dr. Ashim Bhattachrya advised to consult a surgeon and accordingly the insured consulted with Dr. D. K. Mukhopadhyay, M.S. and he advised her for surgery.  That there after the complainant for better treatment of his wife (insured) visited the Asian Institute of Gastroenterology, 6-3-661, Somaajiguda, Hydrabad, 500 082 and insured Rakhi Rooj was treated there in as per the advice of doctors of said institute.  That wife of complainant i.e Rakhi Rooj sustained for Choledochal Cyst type 4A and admitted at Asian Institute of Gastroenterology, 6-3-661, Somaajiguda, Hydrabad, 500 082 on17.07.2013 and operated on 18.07.2013 and discharged from said hospital on 26.07.2013 and incurred medical expenses Rs.1,34,401.55/-.

            It is the next case of the complainant that being insured by virtue of the aforesaid medical policy duly submitted claim along with relevant documents before LICI, Suri Branch for medical expenses of his said wife duly covered of said insurance policy.  That on 17.04.2014 the O.P LICI illegally repudiated the claim of complainant showing baseless reasons in order to deprive the complainant form his legitimate claim.  That the aforesaid act of the O.P.s are amounting to be deficiency of service.

            Hence this case for directing the O.P to pray a that finding no other alternative the complainant filed the instant case praying following reliefs: (a) To pass an order directing the O.P. to pay a sum of Rs. 1,34,401.55 as expenditure of hospitalization and major surgical benefits covered by the said Medi-Claim policy with interest @ 15% per annum on the claim amount since date of claim i.e. 26.08.2013 till realization. 

            (b) To pass and order directing the O.P to pay a sum of Rs. 15,000/- as litigation case.

            (c) Other relief/s.  

            The O.P No.1 LIC of India has contested the case by filing W/V denying all material allegation of the complaint contending inter alia the case is not maintainable and the complainant has no cases of   action to bring the case.

            It is the specific case of the O.P No.1 that after scrutiny of the documents it was observed that Smt. Rakhi Rooj admitted in Asian Institute of Gastroenteroligy, Hyderabad - 500 082 on 17.07.2013 & discharged on 26.07.2013 for surgery of “Choledochal Cyst Excision”.   Also from discharge summary issued by the said Institute, it was clearly shown that Smt. Rakhi Rooj underwent surgery “Cholecystectromy’’ five years back elsewhere.   So it is evident that Smt Rakhi Rooj was suffering from some ailments and under treatment before taking the policy and the Complainant Bisweswar Rooj did not disclose the said fact in the proposal form at the time of taking the said policy.  In the said Proposal Form the Complainant answered against the question Nos. 7(i) to 7(xiv) under page -4 as No whereas Smt. Rakhi Rooj had a pre-existing diseases which was known to him fully & the complainant fraudulently concealed the same at the time of submission of proposal.

            It is the further case of the O.P No.1 that as per conditions and privileges of the policy, Surgery of Choledochal Cyst Excision is a Category-3 type surgery mentioned in Sl. No. 73 at the Page -10 of welcome kit and 40% of the major Surgical sum assured i.e 40% of Rs.100, 00/- Rs.40, 000/- might have been covered if all conditions & privileges attached with Policy Bond were fulfilled by the insured.  The welcome Kit containing conditions & privileges of the Policy under item NO. 7 of page - 4 states that no benefit are available hereunder and no payment will be made by the corporation for the any claim under this policy on account of hospitalization or surgery directly or indirectly if there is a history of pre-existing ailment unless disclosed to and accepted by the corporation prior to the date of commencement of the policy.

            It is the further case of the O.P No.1 that in the instant case the O.P had rightly repudiated the claim on 17.04.2014 followed by Claim rejection letter of TPA dt.15.02.2014 as the said member underwent open Cholecystectomy five years back but it was not disclosed in the proposal form referred in Para-6 at the time of taking the Policy.

            Ultimately the O.P No. 1 prayed for dismissal of the case. 

The O.P No. 2 Medicare TPA service has contested the case by filing W/V denying all material allegation of the complaint contending inter alia the case is not maintainable and the complainant has no cause of action to bring the case.

            It is the specific case of the O.P No. 2 that they are only a third party administrator (TPA) who has been appointed for speedy settlement and disbursement of the legitimate claims raised by the holders of the legitimate claims raised by the holders of Medi-Claim Policies being bound by the Rules of the IRDA.

            It is the further case of the O.P No. 2 that during ‘’inception of the policy on 14.02.2013 in the proposal from the member did not disclose any pre existing ailment.  Whereas the discharge summary shows that member underwent open Cholecystectomy 5 years back.  So, the claim is liable to be rejected under clause H01 and M02 (pre existing ailment)”.   

            Ultimately the O.P No 2 prayed for dismissal the case.

Point for determination.

1. Whether the complainant is a consumer under Sec. 2(1) (d) (ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

 

DECISION WITH REASONS

During the trial the complainant Bisweswar Rooj has been examined as PW1 and also filed some documents.

PW 2 Dr. D.K. Mukhopadhyay has rendered surgery on Rakhi Rooj.

The O.Ps have not adduced any oral evidence but submitted some documents.

Heard argument of both sides.

Point No.1:: Evidently the complainant has purchased a LIC’s Jeevan Arogya (Table 903)’’ policy from the O.P No 1 being policy No. 448700821 dt.14.02.2013 for himself and his wife namely Rakhi Rooj and his daughter namely Krishna Rooj on payment of regular premium.  

            So, the complainant is a consumer U/s 2(1) (d) (ii) of the C.P. Act.

Point No.2:: We find that O.P 1 LIC of India has Brunch office at Suri within jurisdiction of this Forum.

The valuation of the present case is 149401.55/- which is less that Rs.2,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant in his complaint and evidence sated that he purchased The case of the complainant Bisweswar Rooj in brief is that the he purchased a ‘’LIC’s Jeevan Arogya (Table 903)” Policy form the O.P. No.1 being Policy No. 448700821 dt.14.02.2013 for himself and his wife namely Rakhi Rooj and his daughter namely Krishna Rooj. 

            Copy of the policy certificate shows that a LIC of India Jeevan Arogya (table-903) has obtained by the complainant from of O.P No. 1 LIC of India on 14.02.2013 in the name of him, his wife Rakhi and daughter Krishna.

            The Complainant in his evidence further stated that  his wife got a complain of pain of upper abdomen and for that she was treated by Dr. Ashim Bhattacharya and after examining the patient /insured doctor advised her to get examination of USG of whole abdomen and accordingly patient/insured got USG of her whole abdomen at Modern Diagnostics, Suri under the supervision of Dr. Avishek Dey, M.D., (Radio Diagnosis) and on examining USG report Dr. Ashim Bhattachrya advised to consult a surgeon and accordingly the insured consulted with Dr. D. K. Mukhopadhyay, M.S. and he advised her for surgery.  That there after the complainant for better treatment of his wife (insured) visited the Asian Institute of Gastroenterology, 6-3-661, Somaajiguda, Hydrabad, 500 082 and insured Rakhi Rooj was treated there in as per the advice of doctors of said institute.  That wife of complainant i.e Rakhi Rooj sustained for Choledochal Cyst type 4A and admitted at Asian Institute of Gastroenterology, 6-3-661, Somaajiguda, Hydrabad, 500 082 on17.07.2013 and operated on 18.07.2013 and discharged from said hospital on 26.07.2013 and incurred medical expenses Rs.1,34,401.55/-.

            Evidence of PW 2 Dr. D.K. Mukhopadhyay prescription/Certificate dt.26.12.2016 shows that Smt. Rakhi Rooj was undergone surgery of Choledochal Cyst Excision at Asian Institute of Gastroenterology, Hyderabad on 18.07.2013 and she was undergone another surgery of Cholecysteology and Indrolocekthe Nuraune at Suri on 21.12.2009.

            Copy of Discharge summary and bill show that surgery of Choledochol Cyst excision of Rakhi Rooj was rendered at Asian Institute of Clastroenter logy, Hyderabad and there is note that she underwent surgery ‘’ Cholocysteetryoy ‘’ five years back elsewhere.

 

            It is the specific case of the OP/Insurance Company that after scrutiny of the documents it was observed that Smt. Rakhi Rooj admitted in Asian Institute of Gastroenteroligy, Hyderabad - 500 082 on 17.07.2013 & discharged on 26.07.2013 for surgery of “Choledochal Cyst Excision”.   Also from discharge summary issued by the said Institute, it was clearly shown that Smt. Rakhi Rooj underwent surgery “Cholecystectromy’’ five years back elsewhere.   So it is evident that Smt. Rakhi Rooj was suffering from some ailments and under treatment before taking the policy and the Complainant Bisweswar Rooj did not disclose the said fact in the proposal form at the time of taking the said policy.  In the said Proposal Form the Complainant answered against the question Nos. 7(i) to 7(xiv) under page -4 as No whereas Smt. Rakhi Rooj had a pre-existing diseases which was known to him fully & the complainant fraudulently concealed the same at the time of submission of proposal.

            On perusal of the copy on proposal from we find that in proposal form the Complainant Bisweswar Rooj did not mention that any surgery was rendered to his wife Rakhi Rooj during past 5 years.

            During hearing of the argument Ld. Advocate/Agent of the O.P No.1 submitted that as the complainant has violated the condition of the policy, so, he is not entitled to get any compensation.

In support of his contention he cited a ruling reported in III (2012) CPJ 616(NC). Where the complainant submitted claim application for reimbursement of claim for surgery of Unitary track but the claim was repudiated on the ground of suppression of material facts at the time of taking policy. The Dist. Forum dismissed the case. On appeal Hon’ble State also dismissed the appeal with direction to Insurance Co. to refund the premium to the complainant.

            But on revision Hon’ble National Commission has been pleased to allow the revision after setting aside the order to refund the premium to the complainant with observation that the deceased respondent / insured suppressed facts relating to his health/ailments in proposal forms that he filled in for the insurance policy in the year 2000. This being the position, repudiation of the claim of Rs. 67,000/- by the petitioner was fully justified.

            In his reply Ld. Advocate/Agent of the Complainant submitted that the OP/Ins. Co. is to prove that there is linked between any pre-existing disease and present disease but the OP/Ins. Co. failed to do so.

            In support of his claim he cited a ruling reported in 2012 (iii) CPJ 322 (NC).

            The said case related insurance (Mediclaim). Abscess inside of the anus of insured was developed and surgery was rendered to him and ultimately he had died. The clam was repudiated on the ground of suppression of pre-existing decease.

            District Forum dismissed the Complainant.

On Appeal Hon’ble State Commission pleased to allow the Appeal.

On revision Hon’ble National Commission pleased to confirm the order of Hon’ble State Commission observing that the respondent insurance Company has not produced the affidavit of the doctor, documentary medical evidences or any other evidences in support of their say that the abscess in the anus had occurred due to diabetes and, therefore, the say of the opponent that the deceased insured was suffering from pre-existing disease cannot be accepted. We hold that the Policy Condition No. 4.1 cannot be applied and by disallowing the claim for the expenses for the treatment, the Insurance Company has shown deficiency in service.

            We find that in the present case it is clear from discharged summary that surgery of “Cholecystectromy’’ was rendered to Rakhi Rooj five years back. On 17/07/2013 operation of

 

“Cholecystectromy’’ type 4A was rendered to her.

            It appears that PW2 Dr. Mukherjee in his cross-examination clearly stated that two operation were for two separate disease. First Cronic Acalculous Cholecyshisis with choledocholithiasis and second for choledochal cyst with hepatic duct stone and after first operation choledochal cyst grown up.

            We find that in present case also the OP has failed prove any like between two disease. Rather the OP No. 2 Dr. Mukherjee only medical expert of the case opined that two disease were separate and two operation are different.

So, in view of above cited ruling reported in 2012(iii) CPJ 322 (NC) we are constrained to hold that two disease were different and there was no like between two operation and there was no suppression of material facts.

            Ld. Advocate/Agent of the Complainant submitted another ruling reported in 2012(ii) CPJ 41 (Raysthan).

            The said case related to insurance (life), Endowment Insurance with profit policy. Insured/Husband of the Complainant had died. Her claim was repudiated on the ground of suppression of material facts in regard to disease of diabities and vertigo alleged.

            The District Forum allowed the Complainant. On appeal Hon’ble State Commission pleased to dismissed the appeal with observation that Insurance Company is supposed to verify all facts mentioned in proposal from before issuing policy. Common man is not supposed to know all niceties and technicalities of law- Once accepting premium and having entered into agreement without verifying facts, Insurance Company cannot wriggle out of liability merely by saying that contract was made by misrepresentation and concealment- District Forum rightly awarded relief.

            At the time of hearing of argument Ld. Advocate/Agent of OP submitted another judgement passed in Revision No.  2241/2013. Where Hon’ble National Commission pleased to hold that the sole responsibility of filing complete proposal form is on the proposer. It is also responsibility of the proposer to read and understand the forms before signing the same. But we have perused the declaration given by the complainant on 28/08/2002. The answers given under the heading of “in additional personal history” have been falsely declared and Hon’ble National Commission pleased to set aside the order passed by the Hon’ble State Commission and dismissed the complaint.

            But in the present case we have already come to the conclusion that there was no suppression of facts. So, the present judgement is not applicable in this case.

            During hearing of arguments Ld. Advocate/Agent of the Complainant submitted that the OP No. 1/LIC in their W/V admitted that in Insurance Company is liable to pay 40% of the claim.

            We find from the W/V filed by the OP No. 1/LIC that there they stated that as per conditions and privileges of the policy, Surgery of Choledochal Cyst Excision is a Category-3 type surgery mentioned in Sl. No. 73 at the Page -10 of welcome kit and 40% of the major Surgical sum assured i.e 40% of Rs.100, 00/- Rs.40, 000/- might have been covered if all conditions & privileges attached with Policy Bond were fulfilled by the insured.  The welcome Kit containing conditions & privileges of the Policy under item NO. 7 of page - 4 states that no benefit are available hereunder and no payment will be made by the corporation for the any claim under this policy on account of hospitalization or surgery directly or indirectly if there is a history of pre-existing ailment unless disclosed to and accepted by the corporation prior to the date of commencement of the policy.

 

            We find from the Page No. 4 item No. 7 of policy condition that in case of suppression of material facts no benefit of claim is available.

            But in the present case we have already concluded that there was no suppression of material facts and the Complainant has full filed all conditions and privileges of policy.

            We find from the policy condition that in case of category-3 type of surgery mention in Sl No. 73 i.e. surgery of “Choledochal Cyst Excision” the Complainant is entitled to get 40% of sum assured.

            Considering over all matter into consideration and materials on record we find that the Complainant was able to prove case of deficiency in service and he is entitled to get Rs. 40,000/- as compensation with 6% interest P/A since 26/08/2013 till realization from the Op No. 1/LICI.

The Complainant has not prayed any relief against the Op No. 2 Medicine TPA so the case is liable to be dismissed against the Op No. 2.

            Thus these points are decided in favour of the complainant in part.

            The case succeeds in part.

Proper fees have been paid.

Hence,

 O R D E R E D

    that the C.F case No. CC/70/2014 be and the same is allowed

on contest in part against O.P. 1 LICI with cost of Rs 2000/- and dismissed on contest of against the Op No. 2 without any cost.

The Op No. 1/LICI is directed to pay Rs. 40,000/- as compensation with 6% interest P/A since 26/08/2013 till realization to the Complainant.

            All such payment should be made by the O.P No.1 to the complainant within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and proceeding.

Copy of the order be supplied to the parties each free of cost.