FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
One Srinibas Dutta made this petition of complaint U/s 35 of CP Act, 2019. alleging inter alia that since 01.08.2000 he is the policy holder of Floater Mediclaim Policy jointly with his spouse Mrs. Dipika Dutta bearing policy No. 510 40034172800000703 under the New India Insurance Co. Ltd. Subsequently, the name of the daughter of the complainant i.e. Souhardya Dutta was also included in the said policy which was valid up to mid night of 11.08.2018 as annexure “A”.
It is further stated by the complainant that in the year 2018, the complainant ported /migrated the subject policy to the OP concerned and have issued one A/c payee cheque amounting to Rs. 26,893/- only dated 27.07.2018 as premium of the proposed mediclaim policy of the OP of this case have issued the said policy bearing No. PROHLRO1O720249 in favour of the complainant as the ROLL Case for the period of one year on and from 12.08.2018 to 11.08.2019 under “CIGNA TTK PRO HEALTH INSURNACE”. The Photocopy of the subject Policy under the customer ID No. 1000878644 for the period on and from 12.08.2018 to midnight of 11.08.2019 is annexed herewith as annexure “B”.
It is further case of the complainant that he renewed the subject policy under the OPs of this case for the period on and from 12.08.2019 to midnight of 11.08.2020 by paying the amount of renewal premium of Rs. 31,108/- only by cheque dated 09.08.2019 . The photocopy of the renewed policy is annexed as annexure “C”. After renewal of the subject policy up to date of 11.08.2020, the complainant was offered by the OPs concerned to top up the said renewal policy in question under the scheme of Super Top Up Plus. The complainant has accepted the said scheme Super Top Up Plus and thereby they paid additional amount premium of Rs 83,447/- to the OPs concerned for the period of 3 year with effect from 03.01.2020 to 02.01.2023. The complainant further stated that at the time of issuance of policy schedule of Super Top Up Plus and premium certificate to the complainant, the concerned OPs had changed the status of renewal policy in question for the period on and from 12.08.2019 to 11.08.20120 for their lawful gain without prior intimation and consent of the complainant . Such conduct and act of the OPs are nothing but their unfair trade practice. The photocopy of the subject policy is annexed as annexure “D”. It is alleged by the complainant that by accepting the enhance premium of Rs. 8,347/- only from the complainant towards the Super Top Up Plus scheme they enhanced the amount of sum assured of Rs. 10,00,000/- to Rs 30,00,000/- only for the period of 3 years with effect from 03.01.2020 up to 02.01.2023 very cleverly with an ulterior motive.
It is alleged by the complainant that with an ulterior motive and practicing fraud up on the complainant, the OPs have changed the basic status of the renewal policy in question obtained by the complainant for the period on and from 12.08.2019 to 11.08.2020 by writing the column “ Roll Over/Portable Case: Number” in place of earlier writing in said column “ Roll Over/Portable Case: Yes” and they also arbitrarily changed the subject policy categorically : Fresh and also changed the policy No. of the existing policy without having any prior intimation of the complainant which is also called as unfair trade practice and deficiency in service.
The further case of the complainant is that one of the insured person namely Dipika Dutta being the wife of the complainant was admitted at AICRS as per advice of her attending Dr. Sudip Kumar Saha on 09.03.2020 and she was diagnosed “ Endometrial Hyperplasia and Cervical Erosion” and such Endometrial sampling with cervical cattery was done therein under short G.S. and discharged there from on 10.03.2020 . The photo copy of discharge summary dated 10.03.2020 of AIRCS is enclosed herewith as annexure “F”.
After getting the histopathology report dated 19.03.2020 from Sigma Health Care, the complainant for the first came to know his wife Dipika Dutta is suffering from “Endometrial Adenocarcinoma” the photocopy of histopathology report dated 19.03.2020 is annexed herewith as annexure “G”. The attending Dr. then advised lastly on 04.06.2020 for extended hysterectomy the prescription dated 04.06.2020 issued by Dr. Sudip Kumar Saha is annexed as annexure “H”. Thereafter, the wife of the complainant admitted that Tata Medical Centre on 18.06.2020 and operated Uterus/Endometrial on 19.06.2020 and discharged on 19.06.2020. The photocopy of discharge summary issued by Tata Medical Centre dated 20.06.2020 is annexed as annexure “I”. Thereafter, the complainant being the policy holder under the OP informed the matter of hospitalization of the insured Dipika Dutta through the concerned department of Tata Medical Centre on 19.06.2020 with a request for “Cashless Benefits” of the treatment but the OP arbiterally rejected the request without assigning any cogent reason and also without considering the medical papers and documents . The photocopy of mails dated 19.06.2020 and 20.06.2020 is annexed herewith as annexure “J and Y”.
Under such circumstances, the complainant compelled to pay the amount of Rs. 3,60,536/- only out of Rs 2,92,308/- was paid for operation cost to the hospital.
It is alleged by the complainant that deposit of having the mediclaim policy with cashless benefits under the OPs the complainant compelled to pay the medical bill to the tune of Rs. 3,60,536/- only from his own pocket to the hospital which is legal reimburse from the OP concerned as insured . Subsequently, the complainant again placed the claim of Rs. 3,60,536/- only through the OP with all medical documents and required papers on 14.07.2020 for reimbursement of the said amount . But the OP again repudiated the claim vide mail dated 21.07.2020 which is annexed as annexure “M”. On receipt of the said mail dated 21.07.2020, the complainant sent a letter dated 10.08.2020 by mail dated 11.08.2020 to the OP concerned to know the cause of repudiation of the claim (annexure M). The OP sent a reply through mail dated 20.08.2020 and intimated the complainant that under the subject policy stands repudiate under clause VIII.I of the terms and conditions of the policy and further intimated that they stand on the direction of rejection of Claim No. 22420924 and subsequently, termination of the policy (Annexure O series). subsequently on receipt of the message of subject policy for the period on and form 12.08.2020 to 11.08.201 the complainant transferred a sum of Rs 31,952.47/- only in favour of the OP concerned as premium for renewal of the subject policy but the OPs refund the said amount only of the said policy to the bank account of the spouse of the complainant on 28.08.2020 which amounts to negligence, deficiency in service and also unfair trade practice on the part of the OPs. Because they illegally and arbiterally refused the subject policy and repudiated the claim of a sum of Rs. 3,60,536/- towards the treatment cost of the wife of the complainant. The complainant requested the OPs on several occasion but the OP did not lent their ear to the request of the complainant.
Under such circumstances, the complainant without having no other alternative, sent a legal notice to the OPs on 16.09.2020 and filed this case with a prayer to give direction to the OPs to refund amount of the claim of Rs. 3,60,536/- only to the complainant along with interest @ 12 % p.a. from the date of rejection of the claim till realization.
The complainant also prayed for giving direction to the OP to restore of the policy in question being policy no PROHLR010720249 under customer ID: 1000878644 for the period on and from 12.08.2020 to 11.08.2021 on receipt of the required premium and also prayed for giving direction to the OPs to pay compensation of Rs 5,00,000/- to the complainant for deficiency in service , negligence, harassment, mental pain and agony along with litigation cost of Rs. 50,000/-.
The OPs 1 and 2 have contested the clam application by filing a WV denying all the material allegation leveled against them. It is the case of contesting OPs that the petition of complaint is false malicious and incorrect. The complainant filed this petition of complaint with malafide intention. It is also stated by the OPs that the complainant has no cause of action to file this case. It is admitted by the contesting OPs that the complainant had taken an insurance policy (Pro Health- Protect Family Floater) bearing No. PROHLR010720249 in the name of the complainant for the period on and from 12.08.2018 to 11.08.2019 and subsequently, renewed from 12.08.2019 to 11.08.2020. This covering OP has provided cover subject to specific terms and condition as stipulated in the policy which governs the instant claim the copy of policy is annexed as exhibit 1 and 2 and at the time of taking policy the complainant submitted proposal form duly filled up and signed by him and as per proposal from the proposed insured person has to provide all the information required therein correctly and or truly. The copy of said proposal form is annexed as exhibit 3. It is also admitted fact that the wife of the complainant Mr. Dipika Duta was admitted at AICRS on 09.03.2020 in empty stomach as per advice attending Dr. Sudip Kumra Saha and has been diagnosed as “Endometrial Hyper Plasia and Cervical Erosion” and she was discharged there from by the next date. Thereafter, as per histopathological report issued by Sigma Health Care dated 19.09.2020, it was revealed that Mrs. Dipika Dutta was suffering from “Endometrial Adenocarcinoma” again she was advised by Dr. Saha for extended hysterectomy, accordingly the wife of the complainant was admitted at Tata Medical Centre on 18.06.2020 wherein her uterus was operated and she was discharged on 20.06.2020.
It is also admitted fact that the complainant applied cashless benefits for the hospitalization charge at Tata Medical Centre of his wife for the period of 18.06.2020 to 20.06.2020 but the cashless facility was not allowed after scrutinizing the treatment related documents. Medi Assist TPA observed that the Mrs. Dutta has history of Salpingo Oophorectomy (Surgical Removal Ovaries and Fallopian Tubes) done on 08.02.2015 which was not disclosed in the proposal form at the time of policy inception. So, the claim of the cashless benefit denied by the OPs vide letter dated 20.06.2020 which is annexed as exhibit 4.
It is also admitted fact that the complainant submitted the claim on 14.07.2020 for reimbursement of expenses to the tune of Rs. 3,60,536/- incurred by him for the hospitalization of his wife Dipika Dutta for Endometrial Cursionoma.
It is alleged by the OPs in their WV that at the time of obtaining the policy from the OP Insurance Co. the complainant did not disclose the fact that his wife had a history of right Salpingo Oophorectomy done on 08.02.2015 in the proposal form. Moreover, there was a specific question regarding history of gynecological conditions/ailments /disorders of his wife and also not disclosed the medical history of his wife. So, as per Clause No. VIII.I of the policy terms and conditions of the OPs Insurance Co. repudiated the claim of the insured vide email dated 21.08.2020 wherein the reason behind the repudiating had been clearly mentioned and the concerned mail dated 21.08.2020 is annexed as exhibit 5. The complainant is alleged by the contesting OPs that the complainant has breached the most fundamental principle of insurance namely utmost good faith and is not entitled to get relief as prayed for and for that reason the subject policy has been terminated vide letter dated 22.01.2021 as exhibit 8.
It is the case of contesting OPs that the question of negligence, deficiency in service and unfair trade practice on their part does not arise at all because the claim of the complainant has been repudiated due to non disclosing the material fact of previous history of operation of the wife of complainant in the proposal form which is breach of contract made by the complainant. Thus, the complainant has no cause of action to file the case. The case is liable to be dismissed.
In view of the above fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
Admittedly, the complainant obtained the medi-claim policy being No. PROHLRO1O720249 (Pro Health- Protect Family Floater) under customer ID 1000878644 for the period valid from 12.08.2018 to 11.08.2019 has revealed from materials on record as annexure A and submitted by the complainant from the OP Insurance Co. purchased the policy being No 510 40034172800000703 from the OP Insurance Co. by paying a required premium an amount of Rs. 31,108/- paid by A/c payee cheque from which it is revealed that the complaint is a consumer as per provision of CP Act 2019.
It is nobodies case that this commission has got no jurisdiction either pecuniary or territorial to try this case. In spite of the same in order to discharge its obligation and responsibility, this commission after going through fact and circumstances of this case and also considering the position of law opined that this commission has got jurisdiction to try this case. it is also revealed from the fact and circumstances of this case that the claim of the complaint for reimbursement of the treatment of cost of his wife at Tata Medical Centre to the tune of Rs. 3,60,536/- only was repudiated by the OP Insurance Co. vide mail dated 20.08.2020. and the complainant has filed this case before this commission on 23.02.2021 which is well within the limitation and which proved that the complainant has/had sufficient cause to file this case.
In view of discussion made above, it has already been revealed before us that within the ambit of CP Act, 2019 in the instant case. The complainant is a consumer and the OP are the service provider.
Now let us see whether there was any deficiency in service on the part of the OPs or not the complainant being the policy holder or floater medi-claim policy jointly with his wife Mrs Dipika Dutta obtained the policy certificate being No. PROHLRO1O720249 ID 1000878644 for the period on and from 12.08.2018 to 11.08.20219 and subsequently, renewed for the period from 12.08.2019 to 11.08.2020 on payment of required premium. It is alleged that without having any prior intimation to the complainant or without prior consent of the complaint in the mean time with the OPs changed the status of renewal subject policy. Thereafter, Smt. Dipika Dutta being the wife of the complainant and Insured person was taken ill and was admitted at AICRS on 09.03.2020 as per advice of one Dr Sudip Kumar Saha and she was diagnosed with “Endometrial Hyper Plasia and Cervical Erosion” and she was discharged on 10.03.2020 (Annexure F). Thereafter as per histopathological report dated 19.03.2020 issued by Sigma Health Care (annexure G). It was diagnosed that the insured Dipika Dutta has been suffering from “Endometrial Endocarsionoma”.
Attending Dr. Saha suggested the plan for extended hystertomy (Annexure H) . As per advice of Dr Saha, the complainant admitted his wife (insured) at Tata Medical Centre on 18.06.2020 and operated Uterus/Edometium on 19.06.2020 and discharged from 20.06.2020 (Annexure I) which is also admitted by the OPs then the complainant being he policy holder requested the OPs through the concerned department of Tata Medical Centre for “Cashless Benefits” for the treatment of his wife and admittedly, the OPs refused the same whiteout assigning any cogent reason. As a result, the complainant compelled to pay the entire treatment of his wife amounting to Rs. 3,60,536/- only from his pocket out of which Rs. 2,92,308/- only was the cost of operation. Thereafter, the complainant after discharging his wife from Tata Medical Centre placed the claim of reimbursement of Rs. 3,60,536/- only to the OPs on 14.07.2020 along with all required medical papers including the discharge certificate but that case is also repudiated by the OP Insurance Co. vide its mail dated 20.08.2020 on the ground of suppression of material fact in respect of pre existing decease and the OPs also terminated the subject policy. Ld. Advocate for the complainant argued that and also stated in the BNA that at the time of obtaining policy, the complainant filed up the proposal form properly as per direction of the OPs But the OPs only for its business issued the policy certificate on receipt of required premium. But at the time of settled the claim made by the complainant, the OPs raised the question of suppression of material fact in respect of pre-existing disease.
It was duty of the OP Insurance Co. to examine the insured by its own mediclaim panel and also scrutiny the papers submitted by the insured prior to issue the policy certificate but without performing its duty and after renewal the subject policy on payment of premium when the insured complainant placed the claim for reimbursement of the treatment cost of his wife who is also one of the insured repudiated the same on the ground that there was suppression of material fact in respect of the pre-existing disease of his wife. The insurance Co. well aware of the fact gained from the medical record of the insured so, after renewal of the subject policy for twice, the OP Insurance Co. cannot be sent the papers as material of fact and is liable to be indemnified the complaint under the subject policy. The OP Insurance Co. was not only repudiated the claim but also terminated the policy even on repudiated the request made by the complainant to restore the same and to settle the claim which caused harassment, mental pain and agony to the complainant and that should be considered as the deficiency in service on the part of the OP Insurance Co.
In the instant case from the admission of the OP Insurance Co and also from the fact and circumstances of this case as well as evidence on record, it is palpably clear that the complainant being the bonafide insured is entitled to get the claim as prayed for.
The OP Insurance Co. deliberately and arbitrarily terminated the subject policy which should be restored in its original form.
On the basis of discussion made above, this commission is of view that there was deficiency in service on the part of the OP Insurance Co. and which caused harassment, mental pain and agony to the complaint
So, the complainant could be able to prove his case beyond all reasonable doubts and is entitled to get relief as prayed for.
All the points of consideration are considered and decided accordingly.
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed on contest against the OPs with cost of Rs. 5,000/-
The complainant do get the decree as prayed for.
The OPs are directed to reimburse the amount of claim of Rs. 3,60,536/- only to the complainant along with interest @ 9 % p.a. instead of @ 12 % p.a. as per settle principle of Apex Court to the complainant either jointly or severally from the date of filing of this case till realization within 45 days from this date of order.
The OP Insurance Co. are further directed to restore the subject policy being No. PROHLRO1O720249 under customer ID 1000878644 and to renew the said policy for the period on and from 12.08.2020 to 11.08.2021 by accepting the required premium within 45 days from this date of order.
The OPs are further directed to pay compensation to the complainant to the tune of Rs. 30,000/- for deficiency in service for harassment, mental pain and agony along with litigation cost of Rs. 5,000/- to the complainant either jointly or severally within 45 days from this date of order, id the complaints will be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as per mandate of the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the parties.