FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

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

The complainant was having a Health Suraksha Policy Silver Plan with cashless facility bearing No. 50109474 for himself, spouse and son since 19/02/2010 for Rs.3,00,000/- with another policy bearing No. 50109475 for sum assured  of Rs.10,00,000/- in the name of Sarv Suraksha Policy Personal Accident. Both the policies were valid upto 24.03.2019. There was no claim of the complainant since 2010. Very recently the complainant was suffering from nasal problem and snoring problem during sleep for which he contacted Dr. Santanu Banerjee of CMRI Hospital being the OP No.4 on 23.03.2018. The doctor suggested to undergo certain tests and on finding the reports of those tests the doctor diagnosed the problem in the name of” Septoplasty & Tonsillectomy, UPP” and advised admission on 24.04.2018 for undergoing operation on 25.04.2018. The CMRI Hospital issued an estimate of Rs.101207/- for undergoing operation. The complainant thereafter submitted all paper including the estimate to the OP Nos. 1 to 3 on 20-04.2018 for pre authorization reimbursement of the estimated medical expenditure under cashless facility. On receipt of the papers the complainant was asked to deposit the KYC form vide e mail dated 20.04.2018. The OPs started asking  to deposit this or that paper and ultimately on 23.04.2018 the OPs repudiated the claim of cashless benefit for the said hospitalization showing frivolous ground. After receiving the repudiation letter the complainant rushed to the hospital and asked for clarification as to whether the complainant is suffering from Psychiatric, mental disorder (including mental health treatment and sleep apnea) or not and in reply the OP4 clarified vide letter dated 23.04.2018 as under

“ Sleep apnea in case of Mr. Sanjoy Ghosh is due to obstruction in nasal and oral airways (CT PNS suggests of mild DNS and sleep apnea ………is also positive. Plan of operation is Septoplasty, Tonsillectomy.  Hope this enough suggests patient is not suffering from any mental disease but obstruction of airways disease.”

After getting clarification from the expert doctor the OP Nos 1 to 3 never considered their view and even not made any communication to the complainant till date. Incidentally the complainant mentioned that he never received any terms and conditions provided by the OPs. The treatment of the complainant in medical term is “ Septoplasty, Tonsillectomy & UPPP. “  and the same is not Psychiatric, Mental disorder ( including mental health treatment and sleep – apnoea. The OPs willfully mentioned all the wrongs in their repudiation letter dated 23.04.2018.  The OPs have made false and fabricated defamatory statement for which the complainant has suffered physical and mental harassment and sustained loss of social prestige also.

 The complainant sent legal notice dated 26.04.2018 to the OPs claiming compensation of Rs.15,00,000/- and also to provide the cashless facility for the treatment yet to be done. The letters were received by the OPs on 28.04.2018, 03.05.2018 and on 02.05.2018 but no reply has yet been received by the complainant.

The cause of action arose on 23.04.2018 when the OP repudiated the pre authorization approval of mediclaim of the complainant on vague plea and lastly on 26.04.2018 when the complainant raised the legitimate demand to the OPs. The complaint was firstly filed in the Hon’ble SCDRC vide CC No. 426/2018 which was dismissed on the pecuniary ground raised by the OPs with a liberty to approach to the appropriate forum. Accordingly the complainant has approached this commission for justice with relief as detailed in the complaint petition.

The OP Nos. 1 to 3 have contested the case by filing their W/V contending inter alia that the complaint petition is defective, suppressive of material facts not properly signed and verified, frivolous and not maintainable in law and on facts in the present form. The petition is bad for non joinder of necessary party and misjoinder of unnecessary party. The answering OPs admit that the complainant and his family members are covered by the impugned policy for the period from 25.03.2017 to 24.03.2019 for the insurance coverage of Rs.3.80 lac with certain terms and conditions. It is admitted by the OP Nos 1 to 3 that the complainant was suffering from loud snoring along with Apnoea which is reflected from the prescription of the doctor dated 23.03.2017. Thereafter through subsequent tests it was proved that the ailment suffered by the  complainant was nothing but sleep apnoea which is not covered by the concerned policy of insurance. It is also mentioned by the OPs that the complainant submitted  the estimate of treatment  only. There has not been any document of his admission to the OP4 Hospital for the said treatment. After considering the documents provided to them the  OPs came to the conclusion that the treatment sought to be taken by the complainant is nothing but for Sleep Apnoea which is not covered by the terms & conditions of the policy. As such the cashless claim lodged by the complainant is rejected. Therefore there is absolutely no deficiency in service on the part of the Op Nos. 1 to 3. The submission of the complainant is that the OPs repudiated the claim on the ground of mental disorder, Psychiatric problem etc. But it is as per the OPs is simply to mislead the Commission only. The claim was rightly repudiated by the OPs because of exclusion of the aforesaid ailment of sleep apnea too. The complainant at the time of lodging the claim submitted one claim form too in which he himself has admitted to be suffering from the disease of sleep apnoea. More over, repudiation of claim cannot be termed as any defamation of a person. Even though the  matter of defamation is beyond the scope of adjudication of the consumer commission. The case is against the repudiation of cashless claim request lodged by the complainant. There is no proof that the complainant at all took any such treatment and incurred any amount of expenses for treatment of the concerned ailments. The complaint case is absolutely a pre matured case for which the same is liable to be dismissed besides for other available defenses.

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 Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OPs are deficient in rendering proper service to the Complainant?
            2)  Whether the OPs have indulged in unfair trade practice?

           3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake of convenience and brevity in discussion.

            We have travelled over the documents placed on record. The complainant & the OP Nos 1 to 3  have filed their respective Evidence supported by affidavit. Replies to the questionnaire set forth by their adversaries have been filed. They have also submitted their BNAs.

           On perusal of the records it is observed that the complainant had a health insurance policy with OP Nos 1 to 3 having coverage of Rs.3.80 lakhs for the period from 25.03.2017 to 24.03.2019 for himself and his family members. The complainant visited the OP 4 Hospital on 23.03.2018  for medical, check up for the problem of loud snoring and chocking of throat. After certain tests he was advised  admission for operation for Septoplasty , Tonsillectomy and others as per prescription dated 02.04.2018. Accordingly he submitted an estimate of expenses amounting to Rs.1,01,207/- along with relevant medical  papers received from the OP4 Hospital to the OP Nos. 1 to 3 on 20.04.2018 for pre authorization reimbursement of cashless benefit for undergoing operation in connection with the disease. But on receipt of the estimate of expenses and medical papers  the OP Nos. 1 to 3 repudiated the cashless benefit  vide mail dated 23.04.2018 on the ground mentioned in their repudiation letter which read as follows.

“ As per submitted documents, patient is admitted on 24.04.2018  with the diagnosis of Sleep apnoea and took treatment for same. This claim is being repudiated under section 9.c.vi of policy terms and conditions which excludes from coverage ‘Psychiatric, mental disorders(including mental health treatments and, sleep apnoea), Parkinson and Alzheimer’s disease, general debility or exhaustion (run down condition)”.

The complaint has been filed against the OP Nos.1 to 3 for the said repudiation. The plea of the complainant is that the terms and conditions of the impugned policy has not been made known to the complainant for which the complainant should not be deprived of the benefits of the policy. In this connection, the Ld. Advocate of the complainant cited the case law of the Hon’ble Supreme Court of India in the matter of M/S Modern Insulators Ltd., Vs The Oriental Insurance Co. decided on 22.02.2000 where the finding of the Hon’ble Court  is that,  the  terms and conditions of the policy was not made known to the insured for which the benefits of the exclusion clause cannot be claimed by the Insurer. In the said judgment it was also mentioned that the Insurer could not produce documents to prove that exclusion clause was communicated to the insured. But h

ere the Insurance company has categorically submitted that  the policy along with terms and conditions  was sent to the insured complainant on 29.03.2017 through professional courier vide tracking number VPL451598938 and delivered on 05.04.2017.  As such the above cited judgment is not found relevant here since the exclusion clause has already been made known to the complainant by the OPs Moreover, the complainant is maintaining the Health Insurance Policy since 19.02.2010 and it is difficult to believe that the complainant does not know the fact that the claim under the policy is subject to certain terms and conditions including the exclusion clauses also .

Now, the treatment as per the complainant is in medical term as Septoplasty, Tonsillectomy & UPPP and not a  treatment of  Psychiatric, mental disorder( including mental health treatment and,  Sleep apnoea)”. Since the complainant is having no such mental disease the mentioning of reasons for repudiation like  Psychiatric, mental disorder( including mental health treatment and,  Sleep apnoea) in the repudiation letter has caused a severe damage to his family life including his family members and as a whole to his image in the society for which he claimed compensation also.

 Now let us consider  C -  the General Exclusion Clause  of the policy wherein it is stated :  We will not make any payment for any claim in respect of any Insured Person directly or indirectly for, caused by, arising from or in any way attributable to any of the following unless expressly stated to the contrary in this policy.

I)

ii), iii), iv), v)…………………..

vi) Psychiatric, mental disorders (including mental health treatments) and sleep apnoea, Parkinson and Alzheimer’s disease, general debility or exhaustion (“run down condition”) 

The clause vi) indicates that the claim is not payable for sleep apnoea also along with other disease as mentioned above. The confusion is for wrong insertion of one bracket only and nothing else. The complainant has exaggerated the issue for the reason best known to him. The OP Nos. 1 to 3 has clarified the same several times that the disease is nothing but Sleep Apnoea which is excluded for reimbursement as per general exclusion clause of the policy.

On perusal of the treatment papers placed on record  it is observed that the disease has been diagnosed as Sleep Apnoea by the OP 4 Hospital. Moreover, the complainant sought for clarification of the disease from the OP4 Hospital after getting the repudiation letter. The OP 4 Hospital vide letter dated 23.04.2018 clarified the disease as Sleep apnoea which is due to obstruction in nasal and oral airways. Plan of operation is Septoplasty, Tonsillectomy. The complainant himself took the initiative for  clarifying the disease which has been clarified basically as Sleep Apnoea by the OP4 Hospital vide their certificate dated 23.04.2018.  As such the onus to prove the disease as Sleep Apnoea which ought to be proved by the OPs has been proved by the complainant himself.

As such, the citation of the judgment of the  Hon’ble   Supreme Court of India in Civil Appeal No. 7437 of 2011 – P.Vankat Naidu vss Branch Manager,LICI,  is not found  relevant here. Similarly the citation of judgment of Hon’ble NCDRC under RP / 686 of 2007  and that of 2008(52) RCR (civil) 243 – SCDRC, Uttarakhand. – LICI vs Smt. Bina Joshi are also not applicable.

More so, the complainant did not take admission in the OP 4 Hospital for treatment and operation as advised by the treating Hospital.and has not incurred any expenses for which reimbursement of the expenses does not arise at all.

All the points under determination are answered accordingly.

In the result, the Consumer Complaint  fails.

Hence,

   Ordered

That the complaint case be and the same is dismissed on contest against the OPs without any costs.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and

Judgment be uploaded in the website of the Commission for perusal of the parties