For the Complainant                           -   Mr. Pradip Maity, Advocate

For the OPs                                       - Mr. Swapan Kumar Bera, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The fact of the case in brief is that  the original complainant Diljan Bibi, W/o Late Hasem Ali Mullick during her life time purchased one ‘Health Suraksha Policy’ vide Policy No. 2952-2016-3516-2100-000 from the OP Insurance Company  for a sum assured of Rs. 3,00,000/-  for the period from 16.01.2017 to 15.01.2019 with Cash Less Facility. Diljan Bibi expired on 08.06.2018 leaving behind the substituted seven legal heirs as mentioned earlier.The policy was in fact, proposed by her  elder son Mr. Dilbar Mullick.  On 05.08.2017 the original complainant was admitted to Peerless Hospital  & B.K.Roy Research Centre, Panchasayar, Kolkata – 700 094 with some health problem and submitted the policy particulars to the said Hospital Authority for Cash Less Facility.  On 08.08.2017 the Hospital Authority Informed  that the OP Insurance Company  has declined the aforesaid Cash Less Facilities  to the complainant on the purported ground that as per the submitted document possibility of pre-existing disease cannot be ruled out at that point of time.  In view of the above, the Hospital Authority advised the complainant to deposit Rs.50,000/- for continuation of the treatment over there.  Since it was not possible on the part of the complainant to deposit the said sum of money she was discharged by the Hospital Authority at the request of the Patient Party on receipt of Rs.35,000/-.being the expenses so far. The complainant was aggrieved upon the decision of the OPs for denying the Cash Less Facility  and sent legal notice  to the OPs on 09.08.2017  with certain demands. The OP s have neither replied nor paid the amount as asked for in the said legal notice. The complainant therefore, has approached the Forum for justice.

The OPs have contested the case by filing Written Version contending inter alia that the complaint petition is defective, incomplete, suppressive of material fact and is not maintainable in law and on facts. They have admitted that the said policy was issued to the complainant  covering the period from 16.01.2017 to 15.01.2019 with certain terms and conditions as incorporated inthe said policy itself. It is also admitted that the complainant was admitted in Peerless Hospital from 05.08.2017 to 08.08.2017 and they had received the intimation of extending Cash Less Facility from the hospital with the documents relating to the disease of the complainant. From those documents it was revealed that the complainant  had history of “ 4 months with flatulence dyspepsia and Rt. Upper Quadrant pain since two days and also a long history of abdominal pain “. Relying upon the exclusion clause of the terms & condition of the policy relating to non coverage of pre-existing disease, the Cash Less claim was denied and such denial was communicated to the complainant too. Moreover, the claim was within 1^st year of issuance of the policy.  The OPs have further stated that the Cash Less Facility was denied but the claim has not been repudiated since the same has not been lodged before them by the complainant. As such, the present case is totally premature litigation and not maintainable. From the discharged certificate it is clear that the case of the complainant was a ‘Gall Bladder Mass Invading Liver Bed and with infiltration to hepatic  flexure’ with other ailment too.  They have also submitted that it is an established position of law  that terms & condition of the policy of insurance is binding between the patties and the complainant  can under no circumstances be considered to be entitled to any relief more than what is covered by the policy of insurance. In this case the diseases from which the complainant has suffered for the relevant period of time is nothing but very old pre-existing disease as apparently could be realised from the Medical Papers forwarded by the Hospital Authority and therefore, following policy condition itself the OPs had with bona fide intent rejected the cash claim at that point of time.

On the pleading of the parties the following points have necessarily come up for determination:-         

1. Whether the Complainant had a valid Insurance Policy.
2.  Whether there is any deficiency in service on the part of the OPs.

3)         Whether there is any unfair trade practice on the part of the OPs.

4)         Whether the complainant is entitled for the relief as prayed for.

Decision with Reasons

Point Nos. 1 to 4:

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

Both parties have tender their evidence on affidavit. They have also filed replies to the questionnaire set forth by their adversaries. BNAs of both parties have also been filed. We have travelled over all the documents placed on record.

Facts remain that the original complainant Diljan Bibi was the insured of the above mentioned policy for a sum assured of Rs.3,00,000/- during the period  from 16.01.2017 to 15.01.2019. Diljan Bibi during pendency of the instant case expired on 08.06.2018 leaving behind the 7 legal heirs as mentioned in the amended petition and Mr. Dilbar Mullick  one of the legal heirs has been authorised by the other legal heirs to represent the case on their behalf.  During her valid insurance period she was admitted to the Peerless Hospital for treatment on 05.08.2017.  The said policy was having the option of cash less facility. But the said benefit was denied by the OP Insurance Company with the apprehension of pre-existing disease as per the papers forwarded by the Hospital Authority. From the discharged certificate of the complainant issued by the Hospital Authority, it is observed that the complainant was diagnosed with ‘Gall Bladder  Mass Invading Liver Bed and with infiltration to hepatic  flexure’. Now, if we go through the exclusion clause of the policy under Section 9, it is observed that this policy has a waiting period for two years for the illnesses including the calculus diseases of gall bladder including cholecystitis. The simple interpretation of the waiting period is that ‘no claim will be admitted for the treatment of the diseases specifically mentioned in the exclusion clause  within the 24 months. The complainant was admitted for the treatment of gall bladder within one year from the date of taking out the policy and the OP Insurance Company from the papers forwarded by the Hospital Authority realized the existence of pre-existing disease and in view of the said reason has denied the cash less facility. Moreover, the complainant did not lodge her claim with the OP Insurance Company for reimbursement for which the OPs could not finally consider the medical papers of the complainant and could not finally settle or repudiate the claim.  Moreover, if we go through the cash less card, where it is specifically mentioned that this card is for identification purpose only. Card has to be presented to the Net Work Service Provider at the time of admission/availing cash less hospitalisation or any other services. Insurance claim will be processed  in accordance with the policy terms and conditions. Card does not guarantee cash less hospitalisation or any other services. The grievance was denial of cash less facility which is subject to the terms & condition of the policy. Since, the disease was within the two years waiting period of the exclusion clause, the complainant is not entitled to get the benefit of cash less facility. Moreover, the OP Insurance Company has cited one case law of Apex Court vide AIR 1999 SUPREME COURT 3252 S.SAGHIR AHMED AND R.P.SETHI Civil  Appeal No.4913 of 1999 dated 19.8.1999, Oriental Insurance Company , Appellant  vs.  Sony Cheriyan, Respondent. As per the said Judgement “The insured cannot claim anything more than what is covered by the Insurance Policy. That being so, the insured has also to act strictly in accordance with the Statutory Limitation or terms of the Policy expressly set out therein.

As such we are of the considered view that there is no deficiency in service on the part of the OPs and unfair trade practice has not been adopted by the OPs.  Thus all the points are answered in the negative.

In the result the complaint does not succeed.

Hence,

                                                      ORDERED

That the Complaint Case be and the same is dismissed on contest against the OPs without any costs.