The case of the complainant is as follows (According to the complainant petition, evidence on affidavit along with written notes of argument)
1. That the complainant is a Mediclaim Policy Holder of Oriental Insurance Company Ltd, Hill Cart Road, Rajani Bagan, Near Park Palace, Siliguri. Dist- Darjeeling.
2. That the complainant's Medic0laim Policy No is 313201/48/22/01010.
3. That the TPA partner of opposite party 1 i.e Oriental Insurance Company Ltd is M/S MD India Health Insurance TPA Pvt. Ltd i.e opposite party no-2.
4. That in the month of December 2021 the complainant observed some problems inside her mouth. At first the complainant went for check up to their family Physician Dr. Sourish Sen, MBBS, MS(E.N.T) Sadar Hospital Jalpaiguri. But the said Doctor prescribed her some basic medicines and advised her for some specific medical investigations and which are required for her better treatment.
5. That in the month of January the complainant went to Christian Medical College and Hospital, Vellore and her mother and brother accompanied her.
6. That when the Doctors of Christian Medical College and Hospital examined the complainant they suggested her for taking admission with suspected case of " Carsinoma".
7. That on 13.01.2022 the complainant was admitted in Christian Medical College and Hospital, Vellore under Dr. Amit Jiwan Tirkey, MS Professor & Ag. Head; Dr.Konduru Vidya MS, Assistant Professor; Dr. Mansi Agarwal MS Assistant Professor.
8. That the complainant was admitted there up to 20.01.2022 and diagnosed by her attending Doctors as a patient of "Carcinoma Right Side Floor Of Mouth CT1N1 Mo."After discharge from the said hospital till today complainant's treatment is going on.
9. That for treatment of the complainant total expenditure incurred Rs.2,06,623.31 (Rs. Two Lakhs Six Thousand Six Hundred Twenty Three and Thirty one Paisa).
10. That on 23.02.2022 the Complainant submitted her claim against her Mediclaim Policy Vide No-313201/48/22/01010 issued by Oriental Insurance Company Ltd, and claim no- MD16904304 both before The Divisional Manager, Oriental Insurance Company Ltd, hill Cart Road, Rajani Bagan, Near Park Palace, Siliguri and The Manager, M/S MD India Health Insurance TPA Pvt. Ltd, MD House, Suevey No-147/8, Sr. BO-46/1, Espaces, A2 Building, 4th Floor, Pune Nagar Road, Vadgonsheri, Pune-411014.
11. That the Branch Manager, Oriental Insurance Company Ltd rejected/ repudiated the present complainant's claim on 09.03.2022 with a observation under clause 4.8 and the claim is repudiated as "Convalescence general debility "run down" condition or rest cure congenital external diseases or defects or anomalies sterility any fertility sub- fertility or assisted conception procedure venereal diseases intentional self- injury/suicide all psychiatric and psychosomatic disorders and diseases/accident due to and or use misuse or abuse of drugs/ alcohol or use of intoxicating substances or such abuse or addiction etc.
12. That on 16.03.2022 the complainant being helpless made appeal against the rejection or repudiation of claim vide no- MD16904304 before the Grievance Redressal Cell, The Oriental Insurance Company Ltd, Jalpaiguri Branch. But that Appeal also has not been granted and the previous status prevailed.
13. That "Rajani Gandha" is purely a mouth freshener It is not Tobacco and it does not fall within the category of Tobacco. The Govt. has allowed to sell "Rajani Gandha" in any form in our country as mouth freshener. That in spite of the fact that "Rajani Gandha" is a mouth freshener, the said Branch Manager whimsically and arbitrarily rejected the complainant's claim stating that for the reason of tobacco chewing cancer has been caused.
14. That when all ways of the complainant has been closed, the complainant through his Ld. Advocate Santosh Saha send a legal notice on 29/06/2022 through registered post to Divisional Manager, Oriental Insurance Co. Ltd., Siliguri Branch i.e., the O.P. No 1 which has been received on 04/07/2022 by the Opposite Party No 1.
15. That till today no Opposite Party take necessary step to reimbursed the claim placed by the complainant who is the patient of Carcinoma and moreover a lady.
16. That due to treatment the complainant have to bear a huge amount of Rs.2,06,623.31 (Rupess Two Lakhs Six Thousand Six Hundred Twenty Three and Thirty one Paisa). The complainant by profession is a working lady of beauty parlour and everyday she has to face different types of financially struggle.
17. That the claim amount which has been raised is under policy coverage amount and the policy was valid during the period of her treatment.
18. That the complainant repeatedly knocked in the door of the O.P.'s but they did not pay any attention or respect and have no interest to settle such claim.
19. That the cause of action of the suit arose when the complainant admitted in Christian Medical College i.e., on 13/01/2022, then on 20/01/2022 when she was discharged from the hospital, on 23/02/2022 when the complainant submitted her claim before The Branch Manager, Oriental Insurance Co. Ltd. and the Manager of M/S MD India Health Insurance TPA India, then on 09/03/2022 when the O.P.'s Repudiated the claim, then on 16/03/2022 when the complainant appeal before grievance cell for setting aside the repudiation order and lastly on 29/06/2022 when the complainant send legal notice through his Ld. Advocate to the O.P No 1.
20. That the complainant is a consumer under Consumer Protection Act.
21. That the complainant is passing her days with extreme hardship.
22. That this Hon'ble Forum has jurisdiction to carry on the matter as because the present O.P -1 has running business in to the jurisdiction of this commission.
PRAYER OF THE COMPLAINANT
It is therefore prayed that the Hon'ble President, District Consumer Forum is pleased to:-
a) Admit the complaint filed by the complainant.
b) Direct the O.P.s to settle the claim amount of Rs. Rs.2,06,623.31 (Rupess Two Lakhs Six Thousand Six Hundred Twenty Three and Thirty one Paisa) and interest from the date of cause of action arose, as early as possible.
c) Direct the O.P.s to pay the compensation for mental harassment and monetary loss of Rs.50,000/- suffered by the complainant.
d) Total claim amount in this case is Rs. 2,56,623/- Rupees Two Lakh Fifty Six Thousand and Six Hundred Twenty Three only.
e) Any other relief/reliefs as the Ld. Forum deems fit and proper
THE REPLY OF THE OPPOSITE PARTY ACCORDING TO THEIR WRITTEN VERSION, EVIDENCE ON AFFIDAVIT AND WRITTEN NOTES OF ARGUMENT.
That the complainant took a mediciaim insurance policy for the period of 15.12.2021 to 14.12.2021 from the Oriental Insurance Co. Ltd. vide insurance policy no. 313201/48/2021/1098 after gone through the terms and conditions of the insurance policy. That in the month of December, 2021 Complainant observed some problems inside her mouth and went for checkup to her family Dr. Sourish Sen and after checkup said Doctor prescribed her some basic medicines and advised her for some specific medical investigations. In the month of January complainant went to Christian Medical College and Hospital, Vellore, where the Doctors examined her for taking admission with suspected case of "Carsinoma". That on 13.01.2022 complainant was admitted in Christian Medical College and Hospital, Vellore. Complainant was admitted in the said hospital till 20.01.2022 and as per discharge summary complainant is a patient of CARCINOMA FLOOR OF MOUTH (CT1N1M0, STAGE III, PT1N1 STAGE III) as diagnosed by the treating Doctor. For her treatment purpose complainant spend a sum of Rs.2,06,623.31 (Rupees Two Lacs Six Thousand Six Hundred Twenty Three and Thirty One Paisa). That on 23.02.2022 complainant submitted her claim along with medical documents. That on 09.03.2022 insurance company repudiated the claim of the complainant as per policy exclusion No. 4.8.
That after scrutiny of the claim form and medical documents filed by the complainant, the O.P. No.2 i.e. TPA (Third Party Administrator) intimated the O.P. No.1 that" As per claim documents it is observed that patient having h/o tobacco chewing and cause of current illness is tobacco chewing. As per policy terms and conditions illness caused by use of "tobacco" are excluded from the scope of the policy. Hence, the claim is not payable under the policy exclusion No. 4.8". Copy of the terms and conditions of the policy is filed along with written version and marked as Annexure-"A". Complainant in her complaint petition in paragraph 13 stated that "Rajani Gandha" is purely a mouth freshener. It is not a Tobacco and it does not fall within the category of Tobacco. Complainant took the Rajani Gandha mixing with "Tushi" or any other tobacco substance for that reason Doctors of Christian Medical College and Hospital, Vellore in the page no. 2 of discharge summary clearly stated that "Nicotine Stains present". So, it is clear that the current illness of the complainant is for tobacco chewing and the complainant used to take "Rajani Gandha" with "Tulshi" or any other tobacco substance and complainant tried to suppress the actual fact for her illegal gain. Copy of discharge summary has already been filed along with written version and marked as Annexure-"в".
In the present case complainant filed evidence-in-chief and above named opposite parties filed questionnaires to cross examine the complainant but the complainant intentionally did not filed the reply of the questionnaires field by the above named opposite parties. Above named opposite parties also filed written version and evidence-in-chief, but the Complainant did not file any questionnaires to cross examine the above named opposite parties.
It is further submitted that the complainant did not come before the Ld. Forum with clean hands and there is no negligence or deficiency in service on the part of the above named opposite party. Complainant filed the present case with an ulterior motive and for illegal gain.
That the complainant unlawfully filed a vague and murky case against the O.P., for which complainant is not legally entitled to get any relief by way of compensation from the O.P. Complainant is not entitled to get reimbursement of medical expenses as per terms and conditions of the policy.
Points for consideration- Complainant are a consumer of the opposite party and this commission has territorial and pecuniary jurisdiction to entertain the case.
Decision with reason
Both the part ies files evidence on affidavit, Written notes of argument and also participate in the hearing of argument. We have perused the material available on record and heard the counsel for the complainant and the opposite party.
During a perusal of all the information furnished with the case record, two things are very clear
- The plaintiff or the complainant herself has admitted that she used to consume betel spice called “rajnigandha” and she has also repeatedly stated that it is a mouth freshener only (Para 13 of the complainant petition.
- The Medical Examination Report of the complainant issued by Christian Medical College Vellore submitted by both the parties clear that nicotine or tobacco stains were found in the area of carcinoma in her mouth.
The National Institute of Health and Family Welfare, Munirka, New Delhi. Published one Evidence assessment on Harmful effects of consumption of gutkha, tobacco, pan masala and similar articles manufactured in India BACKGROUND INFORMATION The Supreme Court vide order dated 07.12.10 in SLP No. 16308/2007, Ankur Gutkha Vs Indian Asthma Care Society & Ors., directed the Central Government ‘to undertake a comprehensive analysis and study of the contents of gutkha, tobacco, pan masala and similar articles manufactured in the country, and harmful effects of consumption of such articles’. The National Institute of Health and Family Welfare (NIHFW) had been asked to compile the national and International studies already done on this issue. RESEARCH QUESTION In view of the above, the following questions were drafted for assessment: 1) What are the contents of gutkha, tobacco, pan masala and other similar articles manufactured in the country? 2) What are their harmful effects on humans?
METHODOLOGY a) Formation of a Committee of technical experts for helping with scientific literature on the topic. b) Analysis of contents of gutkha, tobacco, pan masala and other similar articles with the help of scientific literature provided by technical experts. c) Review of research studies on harmful effects of these articles which were identified following a comprehensive literature search a) Committee of Technical Experts A committee of technical experts was constituted to provide guidance on technical issues and help in collecting relevant scientific literature. The members of this committee are: (1) Dr. K. Srinath Reddy, MBBS, MD(AIIMS), DM(AIIMS), Fellow, NAMS National Institute of Health and Family Welfare, Munirka, New Delhi. 2 (2) Dr. P.C. Gupta, Director, Healis -Sekhsaria Institute of Public Health (3) Dr. Kishore Chaudhry, M.B.B.S., M.D., Scientist - 'F' (4) Dr. Pankaj Chaturvedi, MBBS,MS,FAIS, FICS (5) Dr. Naseem Shah, Chief of CDER, AIIMS, (6) Dr. Sanjay Chaturvedi, MBBS, FAMS (7) Dr. Deoki Nandan, MD, FAMS, FIPHA, FIAPSM, FISCD.
FINDINGS.
“Harmful Effects CANCERS Oral pre-malignant lesions/conditions Several studies, majority of them from India, have reported a strong association between smokeless tobacco use and oral premalignant/precancerous lesions like leukoplakia, erythroplakia, submucous fibrosis or lichen planus (either alone or in combination) (Annexure 1 (d), 39 – 45). The risk of these lesions has been found to increase with the duration and frequency of smokeless tobacco use (Annexure 1 (d), 39, 42). Oral cancer A large number of studies from India provide consistent results of an increased risk of oral cancer with the use of different forms of smokeless tobacco used in the country (Gutkha, mishri, gudaku, khaini, etc) (Annexure 46 – 55). Similar results are seen in International studies and reviews including the IARC monograph (Annexure 1 (d), 56, 57). There is also good evidence to suggest that the risk of developing oral cancer is directly associated with the duration and frequency of tobacco usage (Annexure 1 (d), 46 – 48, 52, 53).”
Department of Food Safety Government of NCT of Delhi 8th Floor, Mayur Bhawan Connaught Place, New Delhi-110001 TeLNo„23413488, e-mail ID: cfss.delhi@nic.in No. F.1(3)/DO-I/2012/I0503-I0521 Dated: 25/3/15 NOTIFICATION WHEREAS, Gutka, Pan Masala, Flavoured/Scented Tobacco, Kharra and similar products containing tobacco by whatsoever name called, cause damage to the health of consumer and their adverse impact could also lead to alterations of the genetic make- up of future generations;
WHEREAS, tobacco, whether flavoured, scented or mixed with other ingredients such as heavy metals, anti-caking agents (except to the extent specifically permitted as ingredients), silver leaf, binders, flavours, scents, fragrances, prohibited chemicals, or any one of these ingredients (the said ingredients are hereafter collectively or individually, as the context requires, referred to as "the said additives") are "food" under clause (j) of section 3 of the Food Safety and Standards Act, 2006;
WHEREAS, the Central Government has prohibited products containing tobacco and nicotine under regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 and anti-caking agents (beyond the extent permitted) under regulation 3.1.7 of The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011;
Neutral Citation Number: 2023:DHC:2375-DB WHEREAS, the said food articles if consumed will endanger human health and well-being and whereas if consumption of these food articles is allowed without prohibition the well being of current and future generations will be compromised;
IN THE SUPREME COURT OF INDI CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7432 OF 2019 (Arising out of S.L.P.(C) No. 36926 of 2012) UNION OF INDIA & ORS. .... APPELLANT(S) VERSUS M/s UNICORN INDUSTRIES.... RESPONDENT(S) WITH CIVIL APPEAL No. 2345 OF 2017 and CIVIL APPEAL No. 2346 OF 2017 the court observes that “we have no hesitation to hold that the withdrawal of the exemption to the pan masala with tobacco and pan masala sans tobacco is in the larger public interest. As such, the doctrine of promissory estoppel could not have been invoked in the present matter. The State could not be compelled to continue the exemption, though it was satisfied that it was not in the public interest to do so. The larger public interest would outweigh an individual loss, if any. In that view of the matter we find that the appeals deserve to be allowed.”
After perusal of all the above documents we are of the opinion that the complainant has unknowingly caused great damage to his own body and the compensation for the self-inflicted damage to her own body cannot be considered as proper action to be imposed on others. The insurance company rightly repudiated the claim of the complainant.
Hence, It is
O R D E R E D
That the case C.C./93/2022 be and the same is dismissed on contest against all the opposite parties without cost.
Let plain copy of this order be given to the parties free of cost.
