Shri Sudip Majumder- President-in-Charge.
The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the complainant/petitioner Malay Kumar Saharoy, S/o. Bibhuti Bhusan Saharoy permanent resident of Vill.- Barobagan, Joy Maa Tara Khotgola Lane, P.O.- Barobagan, P.S.- Suri, Dist.- Birbhum, Pin. 731101. The complainant purchased an insurance policy namely LIC’s Jeeban Arogya, being policy No. 448934214 dated 07/07/2014. This policy was covered with 3 persons namely the complainant, Malay Kumar Saharay, his wife Pampa Saharay and his son Rohan Saharay. The said policy had been renewed time to time and the same was renewed last for the year 2018.
It is the case of the complainant that the complainant that cataract was detected in his left eye and accordingly he was admitted in Disha Eye Hospital, Durgapur under Dr. Arup Bhaumick for the operation on 19/04/2018 and accordingly Dr. Arup Bhaumick did CATARACT- PHACO-LE by PHACO WITH HYDROPHOBIC ABBOTT SENSAR SP/ACRYSOF MP IOL + TOPICAL TA.
Accordingly the complainant incurred expenses of Rs. 17,000/- as the cost of the treatment. Thereafter, he submitted claim form duly filled up along with all the relevant documents.
It is the further case of the complainant that the OP/LICI did not settle the claim of the complainant and they repudiated the claim of the complainant through their letter dated 05/10/2018 on the ground that the policy had been rejected under code H01/M02 for pre-existing illness (Suffering from HTN since 2014, Anterior wall AMI, followed by PTCA, LAD in 2014).
Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays for:
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- To pass an order directing the OP to pay Rs. 17,000/- as claim of the insured plus other benefit if any.
- To pass an order directing the OP to restore the policy being No. 448934214 and in the alternative refund back the premium amount so far deposited since 2014 to 2018 amounting to Rs. 57,106.62/-.
- To pass an order directing the OP to pay interest @ 12% p.a. on Rs. 17,000/- since the date of claim preferred.
- To pass an order directing the OP to pay Rs. 5,000/- as litigation cost; and for
- Other relief or reliefs.
The OP members have contested the case by filing written version denying all material allegations of
the complainant and prayed for dismissal of the case.
The OP/LICI repudiated the claim through their letter dated 05/10/2018 on the ground that the policy had been rejected under code H01/M02 for pre-existing illness (Suffering from HTN since 2014, Anterior wall AMI, followed by PTCA, LAD in 2014).
OP/LICI did not file any evidence-in-chief in support of their case, nor produced any proof to substantiate their defence.
Ultimately the OP members prayed for dismissal of the case.
Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and those were compared with original documents. Thereafter, respective Ld. Advocates for both sides made oral arguments in support of their case.
Heard Ld. advocates for both sides.
Considered.
Perused all the documents.
Points for determination/Issues
- Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
- Whether this Commission has jurisdiction to try this case?
- Whether there is any deficiency in service on the part of the Ops?
- Whether the complainant is entitled to get any other relief or reliefs as prayed for?
Decision with reasons
Point No. 1:
In this case, the complainant purchased an insurance policy from OP/LICI being policy No. 448934214. Thus the complainant is a consumer under the OP/LICI and the OP/LICI is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act,
1986. (Page 2 of 4)
Point No. 2:
Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP/LICI is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.
In this case, the cause of action arose from 05/10/2018 and the case has been filed on 13/06/2019 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.
Point No. 3:
It appears from the documentary evidence as available in the case record that cataract was detected in left eye of the complainant and accordingly he was admitted in Disha Eye Hospital, Durgapur under Dr. Arup Bhaumick for the operation on 19/04/2018 and accordingly Dr. Arup Bhaumick did CATARACT- PHACO-LE by PHACO WITH HYDROPHOBIC ABBOTT SENSAR SP/ACRYSOF MP IOL + TOPICAL TA.
OP/LICI repudiated the claim of the complainant on the ground that it was a case of suppression of material fact.
The OP/LICI mentioned in their letter dated 05/10/2018 that the complainant had been suffering from HTN since, 2014, Anterior wall AMI, followed by PTCA, LAD in 2014.
For academic discussion, it is necessary to mention that, the word HTN i.e ‘Hypertension’ means___ blood pressure that is higher than normal. Blood pressure changes throughout the day based on activities. It is a common malady. Moreover, there is no nexus between the Cataract-Phaco-Le and the HTN which may not be apt for repudiation of the claim.
Moreover, the complainant is entitled to get the claim as the specific awaiting period of two years from the date of cover commencement i.e. 07/07/2014 had elapsed and operation was done on 19/04/2018.
In addition to the above discussion we are to opine that the report which the OP members/LICI showed to repudiate the claim of the complainant is baseless and vexatious one.
In spite of what may be stated to the contrary, one Lacuna on the part of the OPs gives a fatal blow to their defence. Each and every policy is opened only when the doctor of insurance company examines the proposer and gives green signal. Had there been any loophole certainly the proposals would not have been accepted. The OPs have not brought the original agreement to this effect.
So, it is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.
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Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubts.
Point No. 4:
From the documentary evidence as available in the case record it is crystal clear that the complainant is the beneficiary as well as the nominee of the said policy.
As in this case, it is proved that there is deficiency in service on the part of the OP members.
Hence, the complainant is entitled to get relief or compensation as prayed for.
Thus, all the points are decided in favour of the complainant.
Complaint is sufficiently stamped and proved beyond all reasonable doubts.
- We find in Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
- We also find in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”
In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. from the date of filing of this case.
Hence, it is,
O R D E R E D,
that the instant C.F. Case No. 59/2019 be and same is allowed on contest with cost.
The OP members are jointly and severally directed to pay insurance claim of Rs. 17,000/- (Seventeen thousand only) to the complainant/petitioner along with interest thereon @ 9% per annum calculating on and from 13/06/2019 (i.e. from the date of filing of this case) till realization.
The OP members are jointly and severally also directed to pay Rs. 5,000/- (Five thousand only) to the complainant/petitioner as cost of litigation.
The entire decree will be complied by the OPs within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.
The instant case is thus disposed of.
Let a copy of this order be given/handed over to the parties to this case free of cost.
