West Bengal

Birbhum

CC/122/2018

Manju Karmakar - Complainant(s)

Versus

Branch Manager, National Ins. Co. Ltd., - Opp.Party(s)

Subrata Mukhopadhay

19 May 2023

ORDER

Shri Sudip Majumder- President-in-Charge.

            The complainant files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that Complainant/Petitioner, Manju Karmakar purchased a Mediclaim Policy from the OP being Policy No. 150401501710000343 which is valid till the midnight of 07/07/2018 and by this way the complainant/insured became a consumer/customer of the OP Insurance Company.

            It is the case of the complainant that after insuring, the insured being ill went to treat herself at Kolkata and thereafter the complainant/insured was treated at Prashnath Hospital at Chennai and she was also admitted in the said Hospital on 21/04/2018.

            It is the further case of the complainant that during hospitalization, the complainant/insured had to go through various testing procedure to diagnose the proper problem/illness of the complainant/insured for which she was suffering from a long period.  After diagnosis, the doctor of Prashnath Hospital has duly certified that the complainant/ insured was treated with intravenous infusion of pantocid and other supportive medications and also passed through UGI Scopy on 21/04/2018 and thereafter the complainant was discharged on 22/04/2018 from the said hospital.

            It is the next case of the complainant that after treatment the complainant/insured returned to her house and thereafter the complainant/insured lodged her legitimate claim before the Insurance Company with all relevant papers in original. The Insurance Company finally repudiated the claim of the complainant/insured by showing some baseless grounds.       

           

 

                                                                     

 

 

Hence, after finding no other alternative the complainant is compelled to file this complaint before this Ld. Forum for proper relief and prays for:

1. Treatment Expenditure of Rs. 48,241.00/- along with interest.
2. Conveyance Charges of Rs. 20,000.00/-.
3. For harassment and mental agony of Rs. 30,000.00/-.

The OP/National Insurance Company Limited, Suri Branch has contested the case by filing written version denying all material allegation of the complainant, contending, inter alia, that the case is not maintainable and the complaint has no cause of action to bring this case.

It is the specific case of the OP that the “claim falls under policy exclusion No. 4.19. Hence we regret our inability to admit this liability under the Policy terms & condition. Hence the claim is denied. So, the petitioner is not at all entitled to any claim as prayed for.”

            OP repudiated the claim and mention in their W/N/A as “Exclusion clause run thus: - 4.19. The company shall not be liable to make any payment under the policy in respect of any expenses incurred in connection with or in respect of following diseases/treatment for: Diagnostic and evaluation purpose where such diagnosis and evaluation can be carried out as outpatient procedure and the condition of the patient does not require hospitalization.”

            The OP also mentioned in their W/N/A as “The subject matter of the case is that Mrs. Manju Karmakar was admitted to PRASHANTH HOSPITAL, Chennai on 21/04/2018 with the history (CHIEF COMPLAINTS) for her upper abdominal pain mainly in the epispastic region for the past one years – pain increases with spicy food intake/when on empty stomach. History of loose stools on and off past one year (2-3 episodes every month) history of nausea. COURSE IN THE HOSPITAL: 63 years old female was admitted with the above mentioned complains. Patient was evaluated by the surgical gastroenterologist. Routine investigations where done. ECHO done showed normal LV systolic diastolic function and contraction (EF: 63%). CT abdomen revealed anteral gastritis. Upper GI Endoscopy under anesthesia was done on 21/04/2018-revealed DI-Duodenitis. She was started on treatment with PPI and antacid. Patient is now been discharge and advised to continue medicines and follow up with the gastroenterologist in OPD. (Patient was basically treated with oral medication); so, this claim falls under policy exclusion No. 4.19; Hence we regret our inability to admit this liability under the policy terms & condition. Hence the claim is denied. So, the petitioner is not at all entitled to any claim as prayed for.”

            Ultimately the OP prayed for dismissal of the case.

           

 

                                                                     

 

Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and compared with original documents. Thereafter, respective Ld. Advocates for both sides made oral argument in support of their case.

            Heard Ld. advocates for both sides.

            Considered.

            Perused all the documents.

 

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant purchased a Mediclaim policy from the OP being Policy No. 150401501710000343 on payment of proper fees and this policy is valid till the midnight of 07/07/2018. Thus the complainant is a consumer under the OP/National Insurance Company Ltd. and the OP/National Insurance Company Ltd. is the service provider. Hence, the complainant is a consumer as per               Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP No. 2/National Insurance  Co. Ltd.,  Suri Branch is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 22/06/2018 and the case has been filed on 17/12/2018 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant was admitted at Prashanth Hospital in Chennai on 21/04/2018 as emergency patient for acute Abdomen pain and after diagnosis through some test the said Hospital discharged the complainant on 22/04/2018.

 

 

                                                                   

 

After treatment the complainant returned her home and lodged her legitimate claim of Rs. 48,241/- before the OP/National Insurance Company Limited with all relevant papers in original.

The OP/National Insurance Company Ltd. on several occasions harassed the complainant and did not pay Rs. 48,241/-(Forty eight thousand two hundred forty one only) as Mediclaim insurance claim to the complainant which proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(1)(g) of the C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1)(r) of the C.P. Act, 1986 on the part of the OP.

 

Point No. 4:

            From the documentary evidence as available in the case record it is crystal clear that the complainant is a consumer/customer since 1997 by purchasing Mediclaim insurance policy on payment of proper fees. This policy is valid till midnight of 07/07/2018. The complainant was admitted at Prasanth Hospital in Chennai on 21/04/2018 as emergency patient for acute Abdomen pain.  It is the argument of the Ld. Advocate for the OP side and submitted that “After some investigation and some medical test the patient/complainant was discharged from the said Hospital on 22/04/2018 and advised to continue medicine and fellow up with Gastroenterologist in OPD (Patient was basically treated with oral medicine); so, this claim falls under policy exclusion No. 4.19. Hence, we regret our liability to admit this liability under the policy terms & condition. Hence, the claim is denied. So, the petitioner is not at all entitled to any claim as prayed for.”

            It is further necessary to mention that this Commission asked to produce the copy of the original insurance policy by Ld. Advocate for the OP/National Insurance Co. Ltd. vide order No. 30 dated 20/04/2023 and order  No. 31 Dated 10/05/2023.  But, the Ld. advocate for the OP/National Insurance Co. Ltd. has failed to produce the same before us.

We find in New India Assurance Co. Ltd. Vs. Paresh Mohanlal Parmar, Civil Appeal No. 10398 of 2011, decided on 4 February, 2020 (SC), Hon’ble Apex Court pleased to hold that “Insurer cannot rely on exclusion clause in policy where policy conditions were not  supplied to insured.”

            In view of the above reported judgement passed by the Hon’ble Apex Court, this Commission is of the view that in this case it is not open to the insurer to rely upon the exclusionary clause 4.19 where these conditions of exclusion and the policy document were not handed over to the insured by the insurer.

Ld. Advocate for the OP/National Insurance Company Limited further argued that the patient/complainant was admitted at emergency not any general bed. Hence, the claim is denied. We think this is a vexatious one.

           

 

                                                                          

From the above discussion this Commission is of the view that the complainant was admitted in the said Hospital for one day and that time the insurance policy was valid. Further it is necessary to mention that this type of illness is not excluded from the terms and condition of the policy. It is crystal clear that the complainant was admitted in the said Hospital as emergency patient for acute Abdomen pain and the complainant paid for the same Rs. 48,241/-. Hence, the complainant is entitled to get the claim.

            As in this case, it is proved that there is deficiency in service on the part of the OP. Hence, the complainant is entitled to get relief or compensation as prayed for.

            Hence, from the above discussion it is proved that the complainant could be able to prove her case beyond all reasonable doubt.

• In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• In Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. calculating from the date of filing of this case.

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 122/2018 be and same is allowed in part on contest with costs. The OP/National Insurance Company Ltd. is directed to pay               Rs. 48,241/-(Forty eight thousand two hundred forty one only) as insurance claim to the complainant along with interest @ 9% per annum calculated on and from 17/12/2018 (i.e. from the date of filing of this case) till realization. The OP/National Insurance Company Ltd. is also directed to pay Rs. 20,000/- (Twenty thousand only) to the complainant/petitioner as against mental agony and harassment to the complainant.

The entire decree will be complied by the OP within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.