Tripura

West Tripura

CC/14/49

Smt. Sravanee Dutta - Complainant(s)

Versus

M/S Raksha Tpa Pvt. Lt. d, And Other - Opp.Party(s)

Mr. R.C. Deb

07 Apr 2015

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    
    CASE NO:  CC- 49  of  2014
                      
    Smt. Sravanee Dutta,
     W/O- Sri Debasish Dutta,
     11, Old Kalibari Lane, 
         Krishnanagar, Agartala, 
         District- West Tripura.         .........Complainant.

     ______VERSUS_____

      1. M/S Raksha TPA Pvt. Ltd.,
          Tarun Nagar (behind Rajiv Bhavan),
          1st Lane, H. No.8, Guwhati-781005. 

      2. The Divisional Manager,
The Oriental Insurance Company Ltd., 
44/2, Central Road, Agartala.    .......Opposite Parties.
    

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

 

For the Complainant           : Sri P. K. Ghosh and
                       Sri Rakesh Ch. Deb,
                      Advocates.               
                           
For the O.P. No.1            : None appeared.

For the OP. No.2            : Sri Basudev Chakraborty,
                      Advocate.
                

  
        JUDGMENT  DELIVERED  ON : -07.04.15.

J U D G M E N T

        This is a complaint U/S 12 of the Consumer Protection Act, 1986 (herein after referred to as 'the Act')  filed by the complainant, Smt. Sravanee Dutta, wife  of Sri Debashis Dutta, Old Kalibari lane, Krishnanagar, Agartala against the O.Ps, namely (1) M/S Raksha TPA Pvt. Ltd., Gwahati and (2) The Divisional Manager, The Oriental Insurance Co. Ltd., Central Road, Agartala over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps.
2.         The fact of the case as gathered from the record is that the complainant subscribed to mediclaim Insurance policy under the scheme 'Happy Family Floater Policy' with sum assured of 3 lac continued for the period of 2 years effecting from 13.10.10 to 12.10.11 and 13.10.11 to 12.10.12. She renewed the said mediclaim coverage with effect from 16.10.12 to 15.10.13 with sum assured of 3 lac and 16.10.13 to 15.10.14 with sum assured of Rs.6 lac. The liability for the previous 3 mediclaim policies  were Rs.3 lac with premium of Rs.6,770/- for each policy and the liability for the last one policy was for Rs.6 lac with premium of Rs.14,080/-. Every policy was for a period of one year and the complainant used to renew her policy every year for availing mediclaim benefits. The policy No- 32700/48/2012/1187 was for a period from 13.10.11 to 12.10.12. The complainant could not renew the said policy on 13.10.12, 14.10.12 and 15.10.12 as the  office of the O.P. No.2 was closed on these days being Saturday, Sunday and Mahalaya respectively. She had to renew her policy on the next available working day on 16.10.12. As a result, there was a gap of 3 days between 2nd policy and 3rd policy which was beyond her control. On 25.10.13 she was admitted to Apollo Hospital, Chennai and she underwent a spinal operation. She was discharged from the hospital on 29.10.13. As she was covered by the mediclaim policy, she was entitled to cashless payment. She submitted all documents towards her medical treatment to the O.P. No.1. But she did not get any response from them. On 04.12.13 she was again admitted to Apollo Hospital, Kolkata for medical check-up and she was discharged on 09.12.13. She submitted medical bills for Rs.5,20,891/- towards the cost of her treatment at Apollo Hospital, Chennai and Apollo Gleneagles, Kolkata. The amount claimed by her was within the limit of the sum insured against the policy no- 322700/48/2014/1096. As she did not receive any reply to her letter dated 06.01.14, she again issued a letter to the O.P. No.1 on 13.01.14. In response to the said letter, the O.P. No.1 by a letter dated 17.01.14 asked her to submit some additional documents. Accordingly, she submitted the required documents by a letter dated 06.02.14. She issued several reminders to the O.P. No.1 to satisfy her claim but no response was received from them. Ultimately she received a letter dated 30.04.14 from the O.P. No. 1 intimating her that as per terms of policy the claim was not tenable as the expenses of treatment for the disease suffered by her is excluded for a period of 2 years. Further that, there was 4 days break between the policy for the period of 2011-2012 and 2012-2013. It is asserted by the complainant that she under went treatment on 25.10.13 during the currency of the second policy for the period of 16.10.13 to 15.10.14 and, therefore, she is entitled to the expenditure incurred by her towards the medical treatment from the O.Ps. According to her, the O.Ps by repudiating her claim indulged in negligence and deficiency in service.

3.        The O.P. No.1, M/S Raksh TPA Pvt. Ltd. did not appear though notice was sent to them by speed post and hence the case has been proceed exparte against them.

4.        The complaint was contested by the O.P. No.2, The Oriental Insurance Co. Ltd. stating, interalia, that according to the terms and conditions of the policy, the policy must be continued without any break. The complainant continued with the previous policies from 13.10.10 to 12.10.11 and 13.10.11 to 12.10.12. But after elapse of the period of the said policies there was a  break of 4 days between the 3rd policy for the period from 13.10.11 to 12.10.12 and the 4th policy for the period from 16.10.12 to 15.10.13. Since there was no continuity in the 2nd and 3rd policies, the complainant is not entitled to get the cashless benefits. Further that, as per clause-4.3(xx) of the policy terms and conditions the treatment received by the complainant is excluded for a period of 2 years, if contracted and/or manifested during the currency of policy. The claim of the complainant was repudiated for violation of the terms and conditions of the policies as indicated above. It is denied that they were negligent and deficient in any manner what so ever in rendering service.

5.        In support of the claim, the complainant has examined herself as P.W.1 and has proved and exhibited the following documents:
    Exhibit 1: Happy Family Floater Policy,
    Exhibit 2: Application for sanction of Mediclaim bill,
    Exhibit 3: Letter dated 06.02.14 of the complainant,
    Exhibit 4: Reply of O.P. No.1 dated 01.02.14,
    Exhibit 5: Letter of the complainant dated 06.02.14,
    Exhibit 6: Letter of the complainant dated 18.02.14,
    Exhibit 7: Letter of the O.P. No.1 dated 30.04.14 and
    Exhibit 8: Copy of judgment dated 27.04.13 passed by the District Forum in case no- CC-31 of 2012.

6.        On the other hand, one Sri Dulal Das, the Administrative Officer  of the Oriental Insurance Company Ltd., has examined himself as O.P.W.1 and has proved and exhibited the terms and conditions of the Mediclaim Insurance Policy(Individuals) as Exhibit- A.
        FINDINGS:-
7.        The points that would arise for consideration in this case are :-
        (i) Whether the O.P. No.1 had rightly repudiated the claim of the complainant by a letter dated 30.04.14 on the ground of 4 days break between the 2nd and 3rd policies and further that, the claim was not payable as per exclusion clause no.4.3(xx) of the terms and conditions of the policy;
        (ii) Whether the action of the O.Ps constitutes  negligence and deficiency in rendering service. If so, whether the complainant is liable to be compensated by the O.Ps.
8.        We have already heard arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record, the evidence adduced by the parties and the memorandam of written argument filed by the complainant meticulously.    

9.        The entire case revolves around renewal of insurance coverage i.e., continuity of the mediclaim policy, application of exclusion clause and terms and conditions thereof.

10.        The plea raised by the Insurance company is that to get the benefits of mediclaim, the policy must be renewed/ continued from the period of 1st policy from 13.10.10 to the last policy without any break what so ever. As there was a 4 days break between the second policy for the period from 13.10.11 to 12.10.12 and the third policy from 16.10.12 to 15.10.13, the 3rd policy is to be treated as fresh policy. Secondly, since the complainant did not maintain continuity between the 2nd and 3rd policies by paying due premium in time, the claim of the complainant is not covered under the exclusion clause no- 4.3(xx) which stipulates that 'surgery for Prolapsed Enter Vertibral Disc unless arising from accident is excluded for a period of 2 years, if contracted and/or manifested during the currency of the policy.' The claim of the complainant was repudiated by a letter dated 30.04.14 as her claim was not covered under the said exclusion clause of the policy. 

11.        Admittedly, the complainant subscribed to mediclaim policy under the scheme 'Happy Family Floater Policy' on 13.10.10 and the policy was in continuity for the period from 13.10.10 to 12.10.12 without any break.
        It is the assertion of the complainant that the renewal date of the disputed 3rd policy fell on 13.10.12 but she could not renew the policy on that particular day because of closure of office of the O.P. No.2 for 3 consecutive days on 13.10.12 being Saturday, 14.10.12 being Sunday and 15.10.12 being Mahalaya.  So, she had to pay the renewal premium on the 1st opening day of the office on 16.10.12. As per General Clauses Act, 1897, if any Act is to be done on a particular date and if that day falls on holiday, then it would be excluded from account and the effective day will be the next opening date after such holiday. In this situation, we think that the complainant did no illegality by depositing the renewal premium of the mediclaim policy on 16.10.12 and thus the O.P. insurance company ought to have given continuity to the 3rd policy. 
        
12.        On close scrutiny of the policy for the years 2010-2011, 2011-12, 2012-13 and 2013-14 submitted by the complainant it is seen that in all the policies the number of policies and insurer's code number are almost same. If the disputed policy for the year 2012-13 was a fresh one, certainly the number of the previous policy would have not been mentioned therein. From this, it is amply clear that the mediclaim policy was in continuity for the period from 13.10.10 to 15.10.14 without any break. 
13.        As it appears, the complainant underwent the spinal surgery in Apollo Hospital, Chennai during the course of her treatment from 25.10.13 to 29.10.13 and she received further treatment at Apollo Gleneagles Hospital, Kolkata from 04.12.13 to 09.12.13. For that matter, She incurred total expenditure of Rs.5,20,891/- during currency of the mediclaim policy. From the letter dated 30.04.14 issued by the O.P. No.1, it appears that the claim of the complainant was repudiated as her ailment was related with the previous surgery which is excluded for a period of 2 years under the exclusion clause of the terms and conditions of the policy and the patient's policy is considered as a second year one due to break of 4 days between the policy period of 2011 -2012 and 2012 -2013. 
14.        It is not understandable to us from where the O.P. no.1 received the information that the ailment of the complainant was related with previous surgery. No medical document has been produced by the O.P. No. 2 to substantiate their plea. Hence, we are unable to accept the above said contention of the O.Ps.
    
15.        We have already pointed out that the policy was in continuity from 13.10.10 to15.10.14 without any break and the complainant received treatment at Apollo Hospitals in Chennai and Kolkata during the currency of the policy. 
16.        At the time of argument another point was brought to our notice by the learned counsel for the complainant that in the policy document issued by the O.P. Insurance Company stipulates that ''the insurance under this policy is subject to conditions, clauses, warranties, endorsements as per forms attached''. But in practice the policy containing terms and conditions regarding exclusion clause is not furnished to the policy holder. When such exclusion clause is neither communicated nor copy thereof  is furnished to the insured, the insurance company can not take advantage of exclusion clause.

17.        On examination of the policies of insurance  produced by the O.P. Insurance company we do not find that the terms and conditions of the policy were furnished to the insured. In revision petition no- 186/2007(National Insurance Co. Ltd. Vrs. D.P. Jain), the Hon'ble National Consumer Disputes Reddressal Commission held that “the O.P. Insurance company is under obligation to follow the provisions of  regulations 3(4) of IRDA( Protection of Policy Holders Interest) Regulations, 2002”. As per such regulations, it is mandatory for the insurance company to explain the 'terms and conditions' of the policy and such a certificate is required to be recorded for the advantage of clarity.

18.        It is not the case of the O.Ps that the complainant had fraudulently suppressed the material fact about her preexisted ailment. The O.P. Insurance Company can not deprive the complainant from getting her legitimate claim on the pretext of 4 days break in continuity of the policy or taking the advantage of exclusion clause 4.3(xx) of the terms and conditions of the policy. In our opinion, non-settlement of the claim of the complainant for a longer period without justifiable cause constitutes negligence and deficiency in service. That being so, the O.Ps are liable to pay cost of treatment incurred by the complainant during the currency of mediclaim policy with compensation thereof.
    
19.        It appears that the complainant paid premium of Rs.14,080/- for the sum insured of Rs.6 lac for the period from 16.10.13 to 15.10.14 and the amount claimed by her towards the cost of treatment is within the limit of liability of the mediclaim policy. Since the O.P. No. 1 was the agent / broker of the O.P. No. 2, the entire liability to pay the cost of treatment under mediclaim policy with compensation thereof, falls on O.P. No. 2.

20.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P. No.2, The Oriental Insurance Company Ltd. being the insurer of the mediclaim Policy under the scheme 'Happy Family Floater Policy' is directed to pay to the Complainant Rs.5,20,891/- (Rupees five lakh twenty thousand eight hundred ninety one ) with interest @ 9% P.A. from the date of presentation of the claim petition before this Forum on 07.06.14 till the payment is made in full. The O.P. No.2 is also directed to pay Rs.5,000/- (Rupees five thousand) to the complainant as compensation for mental agony and harassment with Rs.2,000/- (Rupees two thousand) as the costs of litigation.   

21.                    A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 
SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.    SRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.