IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                CASE No.  CC/31/2022.

 Date of Filing:                    Date of Admission:            Date of Disposal:

   11.05.22                                    17.05.22                                    26.04.23

Complainant:  SAMIR KUMAR SEAL

 S/O LOKESH CH. SEAL, 64/1,

 EXHIBITION BAGAN PARA, PO BERHAMPORE,

 PS BERHAMPORE, DIST MURSHIDABAD

-Vs-

Opposite Party: 1. BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD.

37A, R.N.TAGORE ROAD,

PO BERHAMPORE, PS BERHMAPORE TOWN,

PIN-742101

2. SR. DIVISIONAL MANAGER, NEW INDIA ASSURANCE COL LTD.    HOWRAH, HOWRAH D.O. 512200,          

MADHUSUDAN APARTMENT,

2ND FLOOR,

HOWRAH-711010

Agent/Advocate for the Complainant                        : Pranab Kr. Das

Agent/Advocate for the Opposite Parties                  : S.S. Dhar.

   Present:    Sri Ajay Kumar Das………………………….......President.     

          Sri. Nityananda Roy……………………………….Member.

FINAL ORDER

   Sri.ajay kumar das, presiding member.

      This is a complaint under section 12 of the CP Act, 1986.

        One Samir Kumar Seal (here in after referred to as the Complainant) filed the case against Branch Manager, New India Assurance Co. Ltd. &  Anr.  (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

    The material facts giving rise to file the complaint are that:-

             The Complainant has a policy named as New India Asha Kiran Policy which was issued by New India Assurance Co. Ltd. since 17.09.19. The policy was renewed time to time. Sum of Rs. 5,00,000/- was sum assured. The policy is governed by health insurance regulation of 2016 issued by IRDAI. The first policy being No. is 51290034192700000183 valid from 17.09.19 to 16.09.20. The second policy being No. is 51290034202700000181 valid from 19.09.20 to 16.09.21 and third police is valid from 17.09.21 to 16.09.22.

            Due to sudden chest pain and shortness of breath, the Complainant admitted to Fortis Hospital, Kolkata on 23.09.19. He was treated in the hospital and he was suffered from coronary angioplasty. And the final diagnosis was critical coronary artery disease, chronic obstructive pulmonary disease and type-II Diabetes Mellitus. On 23.09.19 the Complainant underwent PTCA with stent to RCA and LAD lesion successfully. On 24.09.19 the Complainant was discharged in stable condition with some specific advises. The Complainant follows all the advices. A number of investigations were done while he was in Fortis Hospital. The Complainant has paid the entire bill amount to the Hospital authority and the authority has issued the receipts against those payments.

            Due to severe chest pain the Complainant was admitted to Nibedita Health Care on 12.10.21. The doctor examined the patient and follows all the protocols and ultimately refers to higher centre for interventional cardiology evaluation. He was discharged from Nibedita Health Care on 14.10.21 and sum of Rs. 28,901/- was paid as medical expenses.

            On 15.10.21 he was taken to Kolkata and admitted at Fortis Hospital. After thorough examination as per advised of the doctors, the patient had undergone IVUS guided PTCA with DEB to RCA and PTCA with stents to LAD on 15.10.21. Echocargraphy was done and ultimately the Complainant was discharged on 18.10.21 from the Hospital in stable condition with some specific advices. The Complainant has paid sum of Rs. 2,12,265/- as medical expenses. The Complainant informed about such admission to the OP No. 1. The Complainant through the abovementioned letter claimed the expenses as he was insured with the OP.

            On 18.01.22 the OP No. 2 by a letter repudiates the claim of the Complainant on the ground as mentioned in the Clause 4 of the policy terms. OP closed the filed on the ground that the disease was pre-existing. But the Complainant had no knowledge about the finding of the doctors on the date of inception of the policy. Accidentally the Complainant feels ill after few days from the date of inception of the policy. The Complainant never concealed anything to the insurance company at the time of filling of the form supplied by the company. There was no suppression of any disease. There was no misrepresentation on the part of the Complainant. When the insured Complainant suffers a sudden sickness which is not excluded under the policy a duty is cast on the insurer to indemnify the Complainant for the expenses incurred there under.

            The repudiation of the policy by OP was illegal and not in accordance with law, the Complainant is entitled to get the medical expenses under the policy. There is a deficiency of service and unfair trade practice on the part of the OP. Due to latches of the OP, the Complainant has suffered from mental agony. The Complainant getting no other alternatives filed this instant case before this Ld. Forum for the redress as hereunder.

     Defence Case

            The OP Insurance Co. is contesting the case by filing written version contending inter alia that the instant complaint case is not maintainable. The specific defence case is that the alleged symptom and nature of disease as clearly noted in the complaint is prima facie pre existing and continuous in nature and of which the Complainant has never disclosed such pre-existing disease before procuring the Insurance Policy and kept silent about such a grievous and major illness nor did he submitted medical paper to that and has accordingly suppressed the material information which is a valid and considerable point for effectiveness of any policy of insurance. Such mis-conduct and/or intentional suppression of material information raised the validity of any effective Insurance Policy by its own and as accordingly the act of the Complainant in itself in violation of any valid and effective Insurance Policy for which he is not entitled to get any relief and/or benefit of Insurance.

            It is further alleged by the OP Insurance Co. that it is clearly and specifically mentioned in Clause 4 of the Terms and conditions of Medicalim Policy of Insurance that any preexisting and continuing illness maybe evident from the nature of illness and continuation period of coverage of the policy.

     On the basis of the complaint and the written versions the following points are framed for proper  adjudication of the case :

Points for decision

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has the OP any deficiency in service, as alleged?

3. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point no.1

Ld. Adv. for the Complainant submits before this District Commission that the Complainant has mediclaim policy with OP Insurance Company and as such the Complainant is a consumer under the OP. Ld. Advocate for the OP No. 1 raises no objection. Moreover, the facts and circumstances of the case as per materials on record suggest that the Complainant is a consumer to the OPs. The point No. 1 is thus decided in favour of the Complainant.

Point No.2&3

Both the points are taken up together for the sake of convenience and brevity of discussion.

Ld. Adv. for the Insurance Company has submitted before this District Commission that the alleged symptom and nature of disease as clearly noted in the complaint is prima facie pre existing and continuous in nature and of which the Complainant has never disclosed such pre-existing disease before procuring the Insurance Policy and kept silent about such a grievous and major illness nor did he submit medical paper to that effect and has accordingly suppressed the material information.

He specifically submits before this District Commission that the instant complaint case is not maintainable as the Complainant underwent and executed an Insurance policy by suppressing a pre existing medical condition and as such the Complainant can not avail the advantages of the Consumer Protection Act, 1986 and as such the instant complaint case is liable to be rejected.

Ld. Adv. for the Insurance Co. further submits that the claim of the Complainant had been repudiated by the Insurance Co. as per clause 4(i) of the New India Asha Kiran Policy and the same was informed to the Complainant vide letter Ref No. 512900/Claim/PC/2022 dated 18.01.2002.

Ld. Adv. for the Complainant submits that the first Insurance Policy was started since 17.09.19. Thereafter, the Complainant admitted to Fortis Hospital, Kolkata on 23.09.19 due to sudden chest pain but the Complainant did not claim any amount of compensation for the said treatment.

The Complainant was admitted to Nibedita Health Care on 12.10.21 and the Complainant was discharged from Nibedita Health Care on 14.10.21 and a sum of Rs. 28,901/- was paid as medical expenses. In support of his contention he has filed the photocopy of vouchers amounting to Rs. 100/-,400/-,1000/- and 27,402/- totaling Rs. 28,902/-.

Thereafter, on 15.10.21 the Complainant was taken to Kolkata and was admitted to Fortis Hospital. The Complainant was discharged on 18.10.21 from the said hospital in suitable condition. The Complainant paid Rs. 2,12,265/- as medical expenses. In support of the medical expenses he has filed some photocopies of the money receipt amounting to Rs. 2149.55/-,3989/-,469/-,1,99,308/- totaling Rs. 2,05,915.55/-.

The point to be noted is that the Complainant has filed the ambulance bill amounting to Rs. 5,050/- but the said ambulance bill is not authenticated by the ambulance driver or owner. Such being the position the said bill amounting to Rs. 5,050/- is required to be ignored.

In the instant case the Complainant has claimed Rs. 28,902/- + Rs.2,05,915.55/- = 2,34,817.55/- on the basis of the Insurance claim.  In addition the Complainant has claimed interest and Rs. 2,00,000/- as mental pain and agony.

Ld. Advocate for the Complainant submits that the Insurance Policy was initiated on 17.09.19. On that day the Complainant had no knowledge regarding any pre existing disease. On this point Ld. Adv. for the Insurance Co. drew out attention to the prescription of the Complainant Samir Kr. Seal dated 12.10.21 wherein it is found that the Complainant was suffering from PTCA on 23.09.19. It is the clear indication that the Complainant was suffering from pre existing disease before the commencement of the Insurance Policy.

For argument sake, we presume that the Complainant was suffering from PTCA since 23.09.19 but the first Insurance Policy was started on and from 17.09.19. So, how it can be presumed that the Complainant had knowledge of preexisting disease on or before 17.09.19.

Suppression of fact means the fact which was within the knowledge of the Complainant but he deliberately suppressed it. For argument sake, that the Complainant was suffering from PTCA on or before 17.09.19 but there is no materials to show that the Complainant had knowledge of PTCA on or before 23.09.19

It would not be out of place to mention here that the Insurance Co. has failed to establish that the treatment undergone by the Complainant during the period from 12.10.21 to 18.10.21 is proximate cause of PTCA. So, it is clear that the Insurance Co. has failed to establish that the fact of PTCA is the material fact.

In this respect Ld. Adv. for the Complainant cited a decision in National Insurance Co. Ltd. Vs. Raj Narain 2008/ NCJ 559 (NC) wherein the Commission had, inter alia, observed as follows:

Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Co. relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.

Ld. Adv. for the Complainant drew our attention to section 45 of the Insurance Act, 1938 wherein it is stated that policy not to called in question on ground of mis-statement after two years, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

In the instant case the Insurance Policy was first stated on 17.09.19. Then after the laps of two years the Complainant was admitted to Nibedita Health Care on 12.10.21 and then he was discharged on 14.10.21. Thereafter the Complainant was admitted to Fortis Hospital, Kolkata and was discharged on 18.10.21. The Complainant claims for the cost of treatment during the said period.

In view of the matter discussed above we are of the view that the repudiation of the claim of the Complainant vide letter dated 18.01.22 is not justified and as such the Complainant is entitled to the amount as claimed for i.e. Rs. 2,34,817.55/-. The Complainant is also entitled to get Rs. 15,183/- as mental pain and agony. The Complainant is also entitled to get Rs. 20,000/- as litigation cost.

In the instant case the Complainant is entitled to get Rs. 2,70,000/- in total.

Reasons for delay

          The Case was filed on 11.05.22 and admitted on 17.05.22. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is allowed.

            Fees paid are correct. Hence, it is

                                       Ordered

that the complaint Case No. CC/31/2022 be and the same is allowed on contest against the OPs with litigation cost of Rs. 20,000/-.

The Complainant is also entitled to get Rs. 2,34,817.55/- as medical expenses on the basis of claim policy. The Complainant is also entitled to get Rs. 15,183/- as mental pain and agony.

The OPs are directed to pay Rs. 2,70,000/- (Two Lakhs Seventy Thousands only) to the Complainant within 60 days from the date of this order i.d. the said amount of Rs. 2,70,000/- ( Two Lakhs Seventy Thousands) will carry interest @ 10% pa on and from 26.06.23.

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

President

 Member                                                                                     President.