IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /113/2015.
Date of Filing: 19.08.2015. Date of Final Order: 11.01.2017.
Complainant: Surajit Kumar Phani, S/O Late Ajit Kumar Phani, Vill. Chuanpur,
P.O. Berhampore, Dist. Murshidabad. Pin 742101.
-Vs-
Opposite Party: 1. Chief Administrator Officer, Heritage Health Services Pvt. Ltd.
Nicco Hosue (5th Floor), 2, Hare Street, Kolkata-700001.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint is praying for payment of cost of treatment for Rs.2,88,633 and compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.
The complainant’s case, in brief, is that the complainant had medi claim policy from the OP No.2 through its agent OP No.1 for the period from 29.6.14 to midnight of 28.6.15 vide policy No. 031405/48/1497/00000181, having continuous policy since 2008. The complaint fell ill and on 9.12.14 got admitted in Fortis his hospital, Kol-07 and discharged on 18.12.14 and after discharge submitted a bill for Rs.2,88,633/- which was repudiated on the basis of exclusion clause 4.9 of the Policy by letter dt. 16.01.2015. At that time the complaint claimed cashless medical treatment facility but the same was repudiated by letter dt. 11.12.14. Prior to that which the complainant was admitted and treated at Artemis Hospital, Haryana for the period from 13.10.13 to 17.10.13 during his visit to his daughter’s, home the cashless treatment was allowed by OP by letter dt. 17.10.13 for the treatment of liver ailment and knowing this illness the policy was continued by receiving premium. The OP No.1&2 negligently and willfully deprived the complaint from his bona fide claim. Hence, the instant complaint case.
The written version filed by the OP No.2 –Insurance Company , in brief, is that from the discharge summary dt. 18.12.14 for the treatment of the complainant it was found that the complainant had a past history of similar illness and it was also found that there was a chronic Ethanol Abuse and Esphageal Variceal Banding was done one year back and the diagnosis was Liver disease. In the discharge summary on 17.10.13 there is no noting of Ethanol Abuse but the same is noted in the discharge summary of 2014. As per exclusion Clause 4.9 in case of intoxication by drugs/alcohol the complainant is not entitled to get any claim. When in the report of Year 2014 there is Ethanol Abuse then the Authority correctly declared the claim as “No Claim”. The reason of disease bond the Company to declare their inability to sanction the cashless benefit. There was no deficiency of service on the part of the Opposite Party. The petition is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been raised for the disposal of the case.
Points for Decision
Point Nos. 1 to 5.
- Whether the case is maintainable in its present form and in law?
- Whether the complainant has locus standi to file the present case?
- Whether the complainant is a consumer under C.P. Act?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled?
Decision with Reasons.
All the points are taken up together for the sake of convenience.
The instant complaint is for payment of cost of treatment of Rs.2, 88,633/- and compensation of Rs.1, 00,000/- and litigation cost of Rs.20, 000/-.
The complainant’s case is that the complainant is a continued medi-claim policy holder who was admitted in Fortis Hospital, Kolkata on 9.12.14 and discharged on 18.12.14 for liver disease and submitted bill of Rs.2,88,633./- which was illegally repudiated as per exclusion Clause 4.9 for intoxication where on last occasion for the treatment of same ailment for liver the bill for the period from 13.10.13 to 17.10.13 was allowed.
On the other hand the OP’s case, in brief, is that in the discharge summary dt. 18.12.14 for the treatment of the complainant it is found that the complainant had a past history of similarly of illness and it is also found that there was a chronic Ethanol Abuse and Esphageal Variceal Banding was done one year back and the diagnosis was Liver disease. In the discharge summary on 17.10.13 there is no noting of Ethanol Abuse but the same is noted in the discharge summary of 2014. As per exclusion Clause 4.9 in case of intoxication by drugs/alcohol the complainant is not entitled to get any claim.
In this regard the Ld. lawyer for the complainant has advanced argument strongly challenging the OP’s case referring nine decisions of different Hon’ble State Commissions derived from Internet that the onus is upon the OP to prove repudiation by the exclusion clause 4.9 for intoxication which is chronic Ethanol abuse written in the discharge summary as past medical history. Those nine decisions are as under:-
Revision Petition No. 686 of 2007, NCDRC, New Delhi and eight other decisions of different Hon’ble SCDRF of the different States of India.
He has also advanced argument referring the decision in Appeal No. 66/2008 by the Hon’ble State Commission, Panaji, Goa that the OP is to prove direct nexus of alleged intoxication with disease suffered. In that decision Hon’ble State Commission, Panaji, Goa observed in Para 6 as under:
“No doubt the mediclaim policy excludes illness induced by alcohol, but there was a burden cast on the insurance company to show clear and direct nexus between the complainant’s illness and alcohol.”
Admittedly, liver disease may be caused for chronic intoxication and also may be caused by other than intoxication.
Thus, the OP is to prove the direct nexus of intoxication with the impugned disease of the complainant.
On this context the Ld. lawyer for the OP has advanced argument that this OP paid claim to this particular patient- the complainant for the same disease one year ago only for absence of any such remark as to past medical history but in the instant case there is clear remark of past medical history written in the discharge summary and for that the OP has nothing to prove and if the same is to be rebutted that is to be proved by the complainant that the disease was caused for any other reason.
It is true that in the present discharge summary dt. 18.12.2014 relating to the instant medi- claim for Insurance Policy for the period from 29.6.2014 to Midnight of 28.6.2015 , the impugned post history as to chronic Ethanol abuse which is habit of intoxication is mentioned and the same is in the exclusion clause 4.9 of the impugned Insurance Policy as intoxication.
But, relying upon the aforesaid decision of the Hon’ble State Commission, Panaji, Goa in Appeal No. 66/08 inspite of intoxication the direct nexus of such intoxication with the disease suffered is to be proved.
The Ld. Lawyer for the OP has advanced argument regarding the onus as to prove to direct nexus of intoxication that the onus is upon the complainant
We are not in the agreement with the above argument advanced by the Ld. lawyer for the OP-Insurance Company.
In this regard we are of view that the OP-Insurance Company has repudiated the claim of the complainant on the ground of exclusion clause 4.9 as to intoxication and the same being the case of the OP, the primary onus is upon the OP to discharge the same.
There is no such evidence adduced by the OP-Insurance Company to prove the direct nexus of intoxication as to the cause of impugned disease suffered by the complainant.
For the absence of such evidence we have no other alternative but to rely upon the evidence adduced by the complainant and to hold that the impugned repudiation of the claim of the complainant by the OP is not legal and for that the complainant is entitled to get his claim as per coverage of the policy.
The complainant has claimed Rs.2, 88,633.59 by filing two bills for different categories where the question of entitlement is to be determined according to coverage of the policy. .
The repudiation of the claim by the OP-Insurance Company being decided as illegal the complainant is entitled to get claim of Rs.2, 88,633.59 as per coverage.
On the basis of above discussion as a whole we find that all the points are disposed of in favour of the complainant in part and as such the complainant will get relief in respect of his claim of Rs.2, 88,633.59 relating to medical expenses as to coverage of his policy along with interest @8% from the date of filing the claim till realization.
According to settled principle interest being awarded there will be no award as to further compensation.
Hence,
Ordered
that the Consumer Complaint No. 113/2015 be and the same is hereby allowed on contest but in part.
The complainant is entitled to get relief in respect of his claim of Rs.2,88,633.59 relating to medical expenses as to coverage of his policy along with interest @8% from the date of filing the claim till realization within 60 days from the date of this order.
In default, the OP is to pay Rs.50/- per days’ delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member President
Order No. 19 dated 19.01.2017
At the time of delivering the free copy of the final order, it is noticed that the name of the OP No.2 has been omitted in the portion of the Cause Title of Final Order.
It is also noticed that in the ordering portion no specific order is given as to which OP is liable to comply with the final order and further in default, which OP is to pay Rs.50/- per days’ delay _________________
In our Opinion, those three omissions in the Final Order of this Case passed on 11.01.2017 are typographical mistakes and the same should be corrected, otherwise the Final Order seems to be incomplete.
Hence,
Ordered
That the name of the OP No.2 as “Branch Manager, United India Insurance Co. Ltd, 3/20/A, K.K. Banerjee Road, 1st Floor, P.O. Berhampore, Dist Murshidabad, Pin-742101” be inserted in the Cause Title of the Final Order of this Case passed on 11.01.2017.
Similarly, in the ordering portion of the Final Order at page 4 after the 2nd Para, a new Para as “The OP No.2 is directed to pay the complainant his claim of Rs.2, 88,633.59 relating to medical expenses as to coverage of his policy along with interest @8% p.a from the date of filing the claim till realization within 60 days from the date of this order” is to be inserted.
In the 3rd para of the ordering portion of the said Final Order, “OP” should be read as “OP No.2”.
This order do made part of the Final Order passed on 11.01.2017 in this case.
Copy of this order be given to the parties free of cost.
MEMBER MEMBER PRESIDENT
