OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.60/2009
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Sri Dilip Nandy - Complainant
S/O Late Krishna Gopal Nandy,
Pandu Loco Colony,
Near RLY QTR No.- EQ/25/B,
Guwahaty-12,Kamrup, (M) Assam , Assam.
-vs-
1) Branch Manager, -Opp. parties
Medicare TPA Services Pvt.Ltd.
Bhangagorh, Guwahati
Represented by the Opp.Party No.1,
On behalf of Opp.Party Nos. 2,3 & 4 also.
2) Asstt. Manager,Claims
Medicare Services Pvt.Ltd.
Lefroy BishopRoad,Kolkata 700020.
3) Deputy Manager- Operations
Bajaj Allianz Life Insurance Co.Ltd.,
Guwahati
4) A.V.P.Customer Care
Health Insurance Channel,
Bajaj Allianz Life Insurance Co.Ltd.,
Kolkata
Appearance-
Learned advocate Mr.Nityananda Upadhyay for the complainant.
Learned advocate Mr.M.Rahman for Opp.Parties
Date of argument - 10.3.17
Date of judgment- 24.3.17
JUDGMENT
This is a case u/s 12 of the Consumer Protection Act , 1986.
(1) The complaint filed by one Sri Dilip Nandy against the branch manager, Medicare TPA Services Pvt.Ltd. Bhangagorh, Guwahati and three others was admitted on 1.7.2009 and notices were served on all the opp.parties and Opp. Party No.1 & 2 filed joint written statement as well as Opp. Party No.3 & 4 also filed joint written statement . The complainant , Sri Dilip Nandy filed his evidence in affidavit in support of his case and he was also cross examined by the ld counsels of the opp.parties. The complainant also filed evidence in affidavit of one Dr.Anirban Ganguli in support of his case and he was also cross examined by the ld counsels of the opp.parties. The opp.party side filed affidavit of one, Sri Sanjib Barman and he was also cross examined by the ld counsel of the complainant . After closure of hearing of evidence ld advocate Mr. Nirmal Kalita filed written argument for the complainant and ld advocate Mr.M.Rahman filed written argument for the opp.parties. This forum on 30.9.2016 heard the oral argument of both sides’ ld.advocates , but failed to deliver the judgment on the date fixed (26.10.2016) due to lack of quorum owing to the fact of resignation of the lone member of this forum. On joining of a member of this forum we heard the argument of the both sides’ Ld counsels again on 10.3.17, and today, we deliver the judgment which is as below-
(2) The gist of the case of the complainant is that he had insured himself with Bajaj Allianz Life Insurance (TPA Services Pvt. Ltd.) in the product name “Bajaj Allianz Care first “ through policy No.0056444963 which commenced from 5.7.2007, Product code -83, the sum assured Rs.1,00,000/-for three years, paying premium for three years with due date of last premium 5.7.09 and the maturity date 5.7.2010. On 25.10.2008, he had lifted a table in his residence which accordingly developed a severe pain and nerviness in his right leg with weakness and he became unable to stand on his right leg consistently and was taken to Dr. Anirban Ganguli, a medical practitioner, for treatment; and getting no fruitful result from the treatment he got admitted in Apollo Hospital on 30.4.2008 as a indoor patient till 3.5.2008 for the ailment of PROLAPSE INTETRVERTEBRAL DISC L4 L5 L5S1 WITH RADICULOPAHY in the department of Orthopedics and Traumatology under Dr.R.Gopal Krishnan. Having admitted in Apollo Hospital, Chennai, he submitted a claim before the opp.party for an amount of Rs.1,00,000/- through FAX on 30.4.2008 as an indoor patient till 3.5.2008 for the treatment for suffering from PROLAPSE INTERVERTEBRAL DISC L4L5 L5SI WITH RADIOCULOPATHY due to an injury suffered in 2008, but the opp.party vide letter 2.5.2008 repudiated his claim stating that the member was suffering from INTERVERTBRAL DISC DEGENERATION due an injury suffered in 2001- and the disease was pre-existing in nature, cashless cannot be approved according to Section 6 B; moreover, the policy is just nine months old and there is DISC DEGENERATION with facet joint hypertrophy and that cannot develop within this short duration of policy and , according to policy condition Section 8 FI there is 5 year waiting period for DISCECTOMY and hence cashless cannot be approved in this case. After having received of the said refusal letter from Medicare TPA Services (I) Pvt.Ltd., he submitted another claim before Medicare TPA Services (I) Pvt.Ltd.( Bajaj Allianz Life Insurance Co.Ltd.) on 10.6.2008, but he received a repudiation letter from Medicare TPA Services (I) Pvt.Ltd. dtd. 23.6.2008 where it is cited that the policy is effective from 5.7.2007 and hospitalization took place for PROLAPSED INTERVERTIBRAL DISC DISORDER WITH RADIOCULOPATHY AND DECOMPRESSION WAS DONE which is a five years waiting period as policy condition Clause 8 F(1) and moreover MRI shows DISC DEGENERATION which cannot occur over nine months and is pre existing as per policy condition Clause 6B and hence claim stands inadmissible. In his second application dtd. 10.6.2008 he also sent the certificate given by Dr.R.Gopal Krishnan dtd. 9.5.2008, where Dr.R.Gopal Krishnan states that he has been suffering from Prolapsed Intervertebral disc L4 L5 and L5S1 with radiculopathy on the right lower limb and he underwent posterior spinal decompression of L4 L5 L5 S1 with discectomy and foramenotomy and the facet join hypertrophy has got nothing to do with disc lesion and radiculopathy for which he underwent surgery; This certificate shows that the complainant’s injury is Post-injury , not a pre-existing one. After receiving the repudiation letter, he filed application before the insurance ombudsman at Guwahati on 7.7.2008; and the ombudsman also, by delivering his judgment on 22.9.2008 in complaint No. 21/009/048/L/08-09, rejected his claim on the ground that he was treated by doctor at Guwahati where the doctor of Guwahati namely Dr. Anirban Ganguli indicates that he was suffering from pain since fortnight prior to 26.1.2008 and thereafter he also made a request to the ombudsman, vide his letter dtd. 21.10.2008, to consider his case on the ground that Dr.Ganguli have wrongly written that he was suffering from pain since fornight which means the pain pre-existed. Dr.Ganguli vide his letter dtd. 16.10.2008 wrote to the ombudsman informing him that due to his over sight he had written in the certificate “ since fornight ” instead of “since last night” and Dr.Ganguli also personally appeared before the ombudsman and he was heard personally, but the ombudsman, by passing an order, on 12.11.2008, rejected his prayer. The opp.parties denied his claim on flimsy ground although he had felt pain on lifting a table on 25.1.2008 , and he was examined by Dr.Anirban Ganguli and when he did not get relief from pain, he went to Apollo Hospital , Chennai, where he was examined by Dr.R.Gopal Krishnan and was diagnosed PROLAPSE INTERVERTEBRAL DISC L4L5 L5SI RADICULOPATHY . The opp. parties did not give attention to that finding of the said specialized doctors. In the first refusal letter, which is letter dtd.2.5.2008, the opp.parties gave reason of rejection of claim that the member is suffering from Intervertebral Disc.Degeneration due to any injury suffered in 2001, but in the second repudiation letter (letter dtd. 23.6.2008) they have given the cause of repudiation that hospitalization took place for Prolapsed Intervertibral Disc disorder with Radiculapathy, and Decompression was done, which has a five years waiting period as per policy condition clause 8(F)(i) and the MRI shows Disc degeneration which cannot occur over nine months and is pre-existing as per policy clause 6 (d), although the doctor specifically mentioned in his certificate dtd. 9.5.2008, which was also forwarded to the opp.parties, that the facet join hypertrophy has got nothing to do disc lesion and radiculopathy for which he underwent surgery. Thus, it is seen that the opp.parties denying the claim , not in merit, but on frivolous reasons. The claim of the opp. parties that he was suffering due to an injury suffered in the year of 2001 is a ridiculous justification on their part. The cause of action first arose on 29.4.2008 i.e. the date of filing claim and on 2.5.2008 on which date his claim was rejected by opp.party No.2 and on 10.6.2008 where he again preferred an appeal to them and on 23.6.2008 the day his appeal was rejected, and on 17.7.2008 when he preferred appeal before the ombudsman and on 22.9.2008 when his appeal was rejected by ombudsman and on 21.10.2008 when he again preferred appeal before the ombudsman and on 12.11.2008 the day his appeal was rejected by the ombudsman. He prays for directing the opp.parties to pay him Rs.1,00,000/-, the insured amount and also Rs.50,000/-compensation for causing mental agony to him and Rs.50,000/- for loss of repudiation along with cost of the proceeding.
(3) The crux of the pleading of the opp.parties is that the complainant is not a consumer as defined in Consumer Protection Act, 1986. The complaint is vexatious and false. They have no knowledge that the complainant was admitted in Apollo Hospital after getting no effective result on treatment in Guwahati. The claim was rightly rejected according to Sec.6(b) and 8 (f)(i) of the policy condition. The complaint was suffering from INTERVERTIBRAL DISC DEGENERATION due to an injury suffered in 2001. The disease was pre-existing in nature. The policy was only nine months old, but according to the Policy Condition U/S 8(f)(i), there is five years waiting period for DISCECTOMY. In the certificate issued by Dr.R.Gopal Krishnan, it is stated that the complaint was suffering from prolapsed intervertbral disc L4 L5 and L5 S1, and that goes to show that the complainant was suffering from pre-existing disease, which he had refrained from disclosing while filling up the proposal form of the policy, and if he would had disclosed about said pre-existing disease, they would not have accepted the proposal and issued the policy to him. The ombudsmen disposed of the petition filed by the complainant, and it was communicated to him vide letter dtd. 14.11.2008. They have not rejected the claim on flimsy ground, but did it after correct appreciation of laws and facts relating thereto. The complainant has not disclosed what he has suffered mentally and what he made miscellaneous expenditure and how he had suffered loss. If he has suffered financial loss then also it was not due to any fault or negligence on the part of them. The insurance ombudsmen has rejected the claim of the complainant on the basis of correct appreciation of evidence produced by the parties before him ; and in his order, he observed that in the certificate issued by Dr.Anirban Ganguli, it is mentioned that the complainant was suffering from pain since fortnight prior to 26.1.2008 and this fact proves that the complainant was suffering from pain since about a fortnight prior to 20.1.2008 , which cannot be linked up with the incident of the lifting table on 25.1.08 and as such the treatment under gone cannot be said to be post incidental; and in view of Exclusion Clause 8(f)(i), the claim relating to hospitalization and treatment is not re-imbursable on that count and the ombudsmen also found no justified grounds to interfere with the decision of the insurer. The complainant again approached the ombudsmen vide letter 21.10.08 where he desired to state that Dr.Ganguli had committed a mistake in observing that he was suffering from disease since “last fortnight” in his prescription dtd. 26.1.2008 instead of mentioning “last night” and Dr.Ganguli also vide his letter dtd. 16.10.08 has agreed that the mistake was committed by him., which he has wrongly mentioned as “fortnight “ instead of “last night”; but Dr.Ganguli, giving evidence before the ombudsmen, admitted the fact that although he maintains a patient register regularly in his chamber, wherein he used to mention about the diseases , but it is not the practice to note the date from which a patient is suffering from disease, and he simply notes the disease in the aforesaid register. This admission shows that the certificate dtd. 16.10.08 issued by Dr. Ganguly is not based on record, and this was being issued only when the complainant approached him. The Ombudsmen further observes that a medical practitioner is not expected to remember about the details of suffering of a particular patient whatever he had found about ten months back, and as such the plea of the complainant was rejected. As per clause 8(f)(i) of the policy , there is a five years waiting period for claiming benefit for the said disease. Even if it is true that he was suffering from pain from the date he states yet he cannot avail the claim benefit for the said disease as per the policy.
(4) We have perused the pleading of the parties as well as their evidence. We have also perused the submission of ld counsels of both the parties. We are giving our decision as follows-
It is both sides’ admitted fact that the complainant Sri Dilip Nandy insured himself did an insurance policy in Bajaj Allianz Life Insurance (TPA) Service Pvt. Ltd. (Guwahati Branch) vide policy No.0056444963 with commencement date 5.7.2007, and the sum matured was Rs.1,00000/- and the terms is for three years and the date of last premium is 5.7.2009 and date of maturity is 5.7.2010, and the policy covers reimbursement of hospitalization of the insured.
It is also both sides’ admitted fact that the insured (the complainant), on 25.1.2008, felt severe pain and nerviness in his right leg with weakness and became unable to stand and he was first treated by Dr.Anirban Ganguli, a medical practitioner having chamber at Adabari, Guwahati , but Dr. Ganguli referred him for better treatment and he was taken to Apollo Hospital, Chennai, where he was admitted on 30.4.2008 and got treatment as indoor patient till 3.5.2008 in the department of Orthopedic and Traumatology, and Dr. R.Gopal Krishnan, and in Apollo Hospital, it was diagnosed that he was suffering from PIVDL4-L5/L5 SI with right radiculopathy, and accordingly post spinal decompression L4 L5, L5 SI and L5 SI disecectomy with foramenotomy (surgery of spine) was done. It is also both sides’ admitted fact that after getting admission in Apollo Hospital, Chennai, the complainant sent a claim through FAX requesting the opp.party to pay him Rs.1,00,000/- as reimbursement of his hospitalization cost , but the opp.party rejected his claim through their letter dated 2.5.2008 stating that he was suffering from intervertebral disc degeneration due to an injury suffered by him in 2001, and the disease was pre-existing in nature and hence, the cashless cannot be approved. Both sides’ also admit that the complainant, after returning from Apollo Hospital, again, on 10.6.2008, submitted another claim before the opp.party’s Medicare Services Pvt.Ltd. after being refused from the company, and that claim was also repudiated by the opp.party stating that hospitalization took place for Prolapse Intervertebral Disc Disorder with radioculopathy, and that disecectomy and decompression as done by Apollo Hospital has a five years waiting period as per Policy Condition Clause 8F(i), and moreover, MRI shows disc degeneration , which can not occur over nine months and it is pre-existing and as such as per policy condition Clause 6B his claim is inadmissible and not payable ; and that after receiving that repudiation letter, he preferred an application to the Insurance Ombudsman on 22.2.2008 and the latter rejected his application stating that Dr.Ganguli, who had first examined him , certified that he was suffering from pain since about fortnight prior to 26.1.2008, and so his pain can not be linked up with lifting of table on 25.1.2008, and after rejection of the said request by the Ombudsman, he again sent a request letter to the Ombudsman on 21.10.2008 to reconsider the matter stating that Dr.Ganguli had mistakenly written “fortnight” instead of “last night” in his prescription, and that wrong was rectified by Dr.Ganguli by writing a letter to the Ombudsman accepting his mistake and Dr.Ganguli also appeared before the Ombudsman personally and the Ombudsman also heard him , but rejected the request latter filed by him.
(5) Now, moot question is that the disease, for which, the complainant had first been taken to Dr.Anirban Ganguli and then to Apollo Hospital, Chennai, where a surgical operation of his spine was done, was a pre-existing disease or a suffering which he sustained on 25.1.2008, while he had lifted a table in his residence ? The complainant side states in his evidence that he had, on 25.1.2008, lifted a table in his house and that developed a severe pain and nerviness in his right leg with weakness and was unable to stand on his right leg and he was taken to Dr.Anirban Ganguli, a medical practitioner of Adabari, Guwahati, for treatment and afterwards he was taken to Apollo Hospital, Chennai, where he was treated from 30.4.2008 to 3.5.2008 as indoor patient, is not a pre-existing disease but a suffering he sustained in lifting a table on 25.1.2008. The complainant in his evidence further states that he had suffered that suffering as a result of lifting a table in his residence on 25.1.2008, and in the result he was first taken to Dr.Anirban Ganguli and he treated him, but while his suffering was not reduced, he was taken to Apollo Hospital, Chennai, where he was hospitalized on 30.4.2008 as indoor patient and treated till 3.5.2008 and surgery of PROLAPSE INTETRVERTEBRAL DISC RADICULOPAHY was done by Dr.R.Gopal Krishnan in the department of Orthopedics and Traumatology . After perusing the discharge certificate of Apollo Hospital dtd.3.5.2008, it is found that Dr.R.Gopal Krishnan had done said surgery on the spine of the complainant and he reported in the discharge slip that he found complaints of LBA since three months and history of weight lifting before getting pain. From these version of Dr.R.Gopal Krishnan, it is clear that he has not found any pre-existing disease in the body of the complainant, but found only pain suffered by the complainant since three months immediately before 3.5.2008. If we calculate the period suffering as per finding of Dr.Krishnan, we find that, the said three months donot go beyond 25.1.2008. Thus, it is seen that the finding of Dr. R.Gopal Krishnan corroborates the version of the complainant as to the date of start of his sufferings. We have perused the evidence of Dr. Anirban Ganguli (C.W.2) and found also that the complainant was produced before him on 26.1.2008 in his chamber with a complain of suffering from pain for lifting a table in his house and that also developed pain and nerviness in his right leg and he provided treatment to him. He also further states in his evidence that in the prescription issued by him he wrongly quoted that the complainant was suffering from pain since “fortnight” while it would have been since “last night”. We have perused Ex.II and it is found that Dr. Anirban Ganguli (C.W.2) in his prescription had written the history of the pain suffered by the complainant that the complainant developed pain due to lifting a table since fortnight . It is found that Dr.Ganguli, by giving evidence, admits that he had written “fortnight” mistakenly in the prescription, while it would have been since “last night”. Dr.Ganguli is a responsible person and he admits his fault and therefore, we find no ground to dis-believe his version. Accordingly, we have believed his version as to the fact that he had wrongly written “since fortnight” i.e. the period of suffering of pain by the complainant instead of writing “since last night”. So, we hold that we must read as “last night” in the place of “since fortnight” written in his prescription. The opp.party side is also found to have failed to adduce concrete evidence to prove that the complainant suffering from a pre-existing disease i.e. he was suffering from said disease since before taking the policy. As we believe the version of the C.W.2 is true version, we hold that his version also corroborates the evidence of P.W.2(C.W.). So, it must be held to have been established that the complainant suffered pain and in his right leg with weakness and unable to stand on his leg , as a result of lifting a table in his residence on 25.1.2008 and before that he was not suffering from any such pain and disease and that as a result of said suffering he was provided treatment at Apollo Hospital, Chennai from 30.4.2008 to 3.5.2008 as indoor patient and that suffering was diagnosed as PROLAPSE INTERVERTEBRAL DISC RADICULOPAHY and in result post spinal decompression L4 L5, L5 SI and L5 SI diseccectomy with foramenotomy (surgery of spine) was done on him by Dr.R.Gopal Krishan, Orthopadic surgeon of Apollo Hospital . The opp.party sides’ another plea is that the such type of treatment is not have coverage with nine months from the date of issue of policy as per policy condition Cl.6 (8). The opp.party sides’ Ld counsels’ plea is that as per provision of policy condition 8 f(i), the complainant is not entitled to any reimbursement from the opp.party for his treatment in Apollo Hospital, Chennai, while Ld counsel of the complainant side submits that the said policy condition is not applicable in the present case having the complainant suffered pain after lifting a table in his house on 25.1.2008 which is post accidental one and secondly, that disease diagnosed and treated at Apollo Hospital, Chennai is not covered by said exclusion Clause of the policy. It is already found that the illness diagnosed was PIVD L4-L5/L5SI with right radiculopathy. Thus; it is clear that the said illness is not covered by the exclution Clause 8 of the policy. Secondly, the said illness was not pre-existing one , but it developed only on 25.1.2008 suddenly, while the complainant had lifted a table, Hence, the argument of Ld counsel of the opp.party is not sustainable , but the argument of Ld counsel of the complainant is acceptable. Hence, we hold that the illness of complainant for which he had hospitalized and treated at Apollo Hospital, Chennai, is not covered by exclution Clause of the policy (Clause 8 f(i)). Hence the opp.party side is liable to pay the assured benefit to the complainant . The assured benefit is Rs. 1,00,000/- (Rupees one lakh)only. Hence, the opp.party is liable to pay Rs.1,00,000/- (Rupees one lakh)only to the complainant under the policy with interest @6% p.a. from the date of judgment. Secondly, for causing harassment to him by illegally repudiating his claim, they are liable to pay another amount of Rs.10,000/- as compensation to him. They are also liable to pay atleast Rs.5,000/- also as cost of the proceeding as for their fault, the complainant had to prosecute them in this forum spending certain amounts for that purpose.
(6) Because of what has been discussed as above, the complaint against the opp.parties is allowed on contest and they are directed to pay Rs.1,00,000/- (Rupees one lakh)only to the complainant as assured benefit for his hospitalization and treatment in Apollo Hospital , Chennai, with interest @6% p.a.and also to pay him compensation to the tune of Rs.10,000/-(Rupees ten thousand)only for causing harassment to him and Rs. 5,000/- (Rupees five thousand) only as cost of the proceeding, to-which, they are jointly and severally liable . They are directed to satisfy the award within 45 days , in default, other amounts shall also carry interest at the same rate.
Given under our hand and seal of the District Forum, on this the 24th day of Feb, 2017.
(Md.S.Hussain)
President
(Mrs. Archana Deka Lahkar)
Member
