C.F. CASE No. : CC/2013/93
COMPLAINANT : Dr. Asim Kanti Bera
S/o Amarendra Nath Bera
of Purbachal Road (N),
Haltu, Kolkata, W.B.
Now residing at Chunari Para
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
OPPOSITE PARTIES/OPs : 1) Heritage Health TPA Pvt. Ltd.
At Nicco House, 5th Floor,
2 Hare Street, Kol - 700001
2) Manager,
The New India Assurance Co. Ltd.
Krishnagar Branch, Bus Stand,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 19th May, 2014
: J U D G M E N T :
This is a case under Section 12 of the Consumer Protection Act. The facts of the case, to put in a nutshell, are as below:-
The complainant, Dr. Asim Kanti Bera has lodged the complaint for an accident of his brother Amal Kanti Bera. The OP No. 1 is Heritage Health TPA Pvt. Ltd. and OP No. 2 is the Manager, New India Assurance Company Ltd. The complainant was a policy holder of mediclaim under the OP No.2. The policy was valid from 31.03.12 to 30.03.13. The family members were also covered under the policy.
Amal Kanti Bera sustained injuries causing fracture of nasal bone with dorsa nasal deformity on 13.11.12. Amal Kanti Bera was admitted to Medico Super Specialty Hospital at Mukundapur on 29.11.12, after 16 days from the incident / accident. Dr. A. Dasgupta, Dr. C. Dutta and Dr. N.V.K. Mohon treated the patient, Amal Kanti Bera, the brother of the complainant. The cost for medical treatment was Rs. 45,518/-.
The complainant submitted the claim before the opposite parties on 24.12.12 but OP No. 1 informed that the claim was inadmissible as per terms and conditions of the medical policy and the ground that according to the history sheet and treatment sheet of the patient the victim was alcoholic and have psychiatric problem. Under Clause No. 4.4.6 the mediclaim was repudiated.
Claim of Rs. 45,518/-, the medical expenses along with the compensation of Rs. 1,00,000/- and cost of Rs. 50,000/- was prayed by the complainant.
The opposite party No. 2 filed written version on 11.12.13 challenging the claim and contentions of the complainant. The maintainability of the case was also challenged. It has been treated that the case is bad for misjoinder and nonjoinder of the parties. It has been admitted that Amal Kanti Bera had a mediclaim policy under the OP No. 2 being No. 51240334110100000251. The validity of the said policy between 31.03.12 to 30.08.13 has been admitted. Admission of the victim / insured in Hospital has been also admitted but it has been pleaded that in clause 4.4.6 the repudiation of the claim was good in law as the victim was suffering from alcoholism and psychiatric problem which was suppressed at the time of opening the mediclaim policy.
POINTS FOR DECESION
- Point No. 1: Is the case maintainable in law?
- Point No. 2: Is the brother of the claimant a consumer?
- Point No. 3 Is the repudiation of claim legal?
- Point No. 3: What relief the victim is entitled to get as per law?
REASOND DECISIONS
For the purpose of brevity and convenience all the points are taken up together for discussion.
Both parties filed written arguments in order to support their case. We have meticulously gone through the written arguments filed by both parties along with case laws and the annexed documents. We have carefully gone through the affidavit evidence, interrogatories and reply against the interrogatories. The affidavit was filed by Shubas Dirghangi from New India Assurance Company Ltd. under order 18 Rule 4 CPC. Subhas is the Divisional Manager of Barasat Branch and authorized signatory of the company. He has stated in his affidavit that the complaint was made in a very clandestine manner and the complainant suppressed the material facts regarding his illness that means alcoholism and mental abnormalcy at the time of opening the policy. It has been highlighted by Sri Dirghanghi that the brother of the complainant met with a road traffic accident as per the medical report which was suppressed in the application.
Maintainability of the case was not pressed at the time of argument. It is admitted position that the brother of the complainant is a consumer under the OP No. 2 as a policy holder.
Now the question is whether the repudiation is legal or not. Perused the original application and the mediclaim policy of 2007 which is consisting of the rules regarding repudiation of claim etc. PW- 1, Asim Kumar Bera has stated in his affidavit-in-chief that on 10.01.14 he submitted the claim of the policy which covers the entire family. It has been highlighted that on 29.11.12 the brother of PW- 1 was admitted to Medica Super Specialty Hospital. The cost incurred was Rs.45,518/-. The date of discharge was 30.11.12, that means admission was only for one day for treatment of broken nasal bone. During cross examination (reply) at page No. 1 point No. 5 PW-1 has stated that initially the injury was thought to be cured but as the swelling and deformity of nose was persistent. The ENT surgeon was contacted. Under clause 3.4 hospitalization fracture / dislocation has been admitted to be the valid ground on medical ground but in clause 4.4 and permanent exclusion clause in 4.4.6 we find that use of intoxicating drug / alcohol and treatment relating to psychiatric disorder have been excluded from mediclaim and have been shown ground for repudiation of the claim. Now we have to see whether Amal Kumer Bera met with any RTA or not. Under the Medica Super Specialty Hospital. Amal Kumar Bera / 46/ M had bleeding injury in the nose which stopped spontaneously but there was tenderness. In the said prescription dtd. 26.11.12 we find that there is mentioned of RTA (Road Traffic Accident) on 13.11.12 bleeding to injury. The complainant has not given the details of RTA that matter has totally been suppressed in complaint and affidavit evidence. The doctor made manipulation under Anaestheia. Prescription dtd. 28.11.12 it has been mentioned that Amal Kanti Bera has been taking Chlomipramina 25 mg for 15 years along with Lorazepam 1 mg, Propanolol- 20mg tds, Amytriptiline-25mg, Chlordiazapoxide. The medicines mentioned above are for treatment of psychiatric problem. The doctor has already mentioned that Amal Kanti Bera is a smoker and alcoholic. The patient was on numerous medication as per discharge summery. Let me quote from the discharge summery of Medica Super Spciality Hospital, “Reason for Admission - Fracture of nasal bone 16 days back. Present History – Patient on numerous medication – Merital, Clonil (50mg), Lorazepam, Propranolol, Amlodipline. Diagnosis at Discharge – Fracture nasal bone with dorsal nasal deformity.”
We are in a doubt as to why the patient was taken to Hospital after 16 days. We are also not convinced as to why the patient on numerous medication did not disclose the same at the time of opening the mediclaim.
The reported decision 2014 CPR 429 (NC) clearly points out that material facts within the knowledge of the insured should have been disclosed for the purpose of mediclaim policy. In the instant case Amal Kumer Dey did not follow the minimum ethics.
Other medical problems and the facts and circumstances ought to have been disclosed. Hence, for penalty of nondisposal the claim was rightly repudiated because the contract of insurance is a contract of uberrima fides.
Thus, in our humble opinion, the repudiation of the claim is legal. Hence no relief is available to the complainant. Thus, all the points are disposed accordingly.
Hence,
Ordered,
That, the case CC/2013/93 be and the same is dismissed on contest. No cost.
Let a copy of this judgment be delivered to the parties free of cost.
