Order No.                 .

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

Complainant by filing this complaint has submitted that he purchased one mediclaim policy for treatment of the disease or injury arising out of accident for an overall limit of Rs.1 lakh and enrolled himself under PNB Oriental Royal Mediclaim Policy with family floater for Punjab National Bank Account holder/employees being policy No.311100/48/2011/5724 which was issued in the name of the complainant with the OP1 by paying a premium for a period of one year with expiry date on 29-09-2011 with condition to be renewed year to year.

          During subsistence of the mediclaim policy complainant became seriously ill and admitted to Repose Clinic and Research Centre Pvt. Ltd. at 20/C, Broad Street, Kolkata  - 700 019 in the month of May, 2011 under renowned professor Dr. Samarendranath Ghosh, Professor of Neuro Surgery, Bangur Institute of Neuro Science and Psychiatry, Kolkata. 

          Fact remains complainant was admitted in the said Clinic and ultimately was discharged on 07-06-2011 staying for about 9 days and for his treatment he incurred a sum of Rs.79,855/- in total.

          Thereafter, complainant submitted claim application duly filled in along with supported documents to the OP2 acting as third party administrator of the OP1 on 16^th June, 2011 and that was authenticated and supported by bills, documents, receipts and challans but in spite of acknowledgement of the claim form and other supporting papers and documents the OP2 did not sanction the same on the contrary the OP2 vide its letter dated 22-02-2012 opined with remark by saying that disease is pre-existing and so claim is not settled and complainant is not entitled to get such mediclaim benefit as its first year policy and pre-existing disease is not covered by that policy.

          Being disgusted with the act of the OPs compliant sent a demand letter through his Advocate on 19-03-2012 to OPs 1 and 2 for the payment of said amount within 15 days but the OP did not pay any heed even after receipt of the said letter and practically complainant has been harassed mentally and physically and for negligent and deficient manner of service and also for compensation he has filed this case for redressal.

          On the other hand OP1 Insurance Company by filing written version submitted that the entire complaint is baseless mala fide and not maintainable in view of the fact complainant at the time of taking mediclaim policy did not disclose his pre-existing disease.  But it is fact that he is insured under the OP1 for the above period.

          Further it is submitted that complainant at the time of commencing of the policy mentioned that he is 73 years but did not disclose any information of his health or moreover the claim has been made within 1 year of the issuance of the policy and as because pre-existing disease was detected as per medical treatment report as filed by the complainant the repudiation was made and there was no negligence on the part of the OP and practically complainant by misleading the Ld. Forum treated to get relief and to obtain order by suppressing the totality of the fact and for which the complaint should be dismissed.

Decision with Reasons

On an indepth study of the entire complaint and the written version and also considering the argument as advanced by the Ld. Lawyer of both the parties including the policy document it is clear that the present policy was for sum insured Rs.1 lakh and the said policy was new policy and it was opened on 29-09-2011 and the age of the complainant at the relevant time was 73 and same was purchased on 30-09-2010 and in the said policy it is specifically mentioned pre-existing ailment of the insured shall not be covered by the said mediclaim policy.

          It is undisputed fact that complainant was under treatment at Repose Clinic and Research Centre Pvt. Ltd. for the period from 29-05-2011 to 07-06-2011 under Dr. S. N. Ghosh and said doctor treated him and operated under GA and Burr holes and drainage of bilateral SDH was done and two Burr holes on each side was made for such treatment.  And no doubt there doctor clarified the patient as a history of trauma and MRI findings of 1997 shown multiple Neuro fibroma with Bulge compression features of spine as stated by Dr. A. Lahiri dated 20-05-2011 and the fate of the disease is disoriented GAIT and fall as SDH is chronic in nature and that was the observation of the doctor and no doubt it is proved as per MRI findings of 1997 complainant suffered from multiple Neuro fibroma with Bulge compression features of spine and if the opinion of the doctor about history of the disease of the complainant is accepted it is apparently found that prior to purchasing of the said policy complainant was no doubt suffering from “Multiple Neuro fibroma with Bulge compression features of spine since 1997”.  In the opinion of the doctor SDH is chronic in nature and so the OPs TPA came to a conclusion that it was a pre-existing condition relating to above mentioned Neurological disorder and as per Exclusion Clause 4.1 of the Insurance Policy contract the claim of the complainant was refused because it does not cover the treatment cost of pre-existing disease.  It is a fact that complainant did not disclose his ailment in the proposal form and no doubt it is a fault on the part of the complainant.  no doubt Professor Samarendranath Ghosh is a renowned Neuro Surgeon and he opined so.

          Before entering into merit of the dispute we are clarifying the definition of SDH.  SDH means Subdural Hematoma which is also known as subdural haemorrhage and as per the Wikipedia, encyclopaedia of Subdural Hematoma we have gathered that chronic SDH, however, have better prognosis if properly managed.  In contrast, epidural hematomas are usually caused by tears in arteries, resulting in a build-up of blood between the dura mater and skull.  Usually resulting from tears in bridging veins which cross the subdural space, subdural hemorrhages may cause an increase in intracranial pressure(ICP) which can cause compression of and damage to delicate brain tissue.  So, SDH is a type of Hematoma usually associated with automatic brain injury and blood gathers within the outermost meningeal layer, between the dura mater, which adheres to the skull and the arachnoid mater which envelops the brain.  As per classification of SDH Subdural Hematoma are divided into acute, sub-acute and chronic, dependiong on the speed of their onset.  Sign and symptoms of SDH is location of Hematoma is between the skull and the outer endosteal layer of the dura mater and symptoms are lucid interval followed by unconsciousness and subdural hematoma must be in between dura and arachnoid.

          After studying the said literature and the classification, signs and symptoms including the location involved vessels and appearance we have gathered that chronic subdural hematomas are common in elderly people.

          Considering the treatment sheet and opinion of the Dr. S. Ghosh symptoms and location of the disease we have gathered that complainant is an elderly person of 73 years and no doubt he had suffered from subdural hematomas which is practically common at such ages and the mortality rate associated with acute subdural hematoma is 60 to 82 per cent but in case of chronic subdural hematoma can be managed and in such case repeated minor bleeding in between dura and arachnoid through bridging veins may be caused.  So, after studying the entire material and medical authority’s opinion we are convinced that chronic subdural hematoma does not mean that for long period a patient has been suffering from chronic subdural hematoma.  But it is one type of classification of subdural hematomas and classification of chronic subdural hematoma depends on the speed of their onset and due to head injury it may be caused and such a disease can be controlled repeatedly treated with surgical decompression.  So, considering the entire medical term classification, authority and opinion of the doctor we are convinced to hold that present complainant no doubt suffered from chronic subdural hematoma due to sudden injuries what he sustained for which he lost consciousness or fluctuate level of consciousness and in case of subdural hematoma whether it is acute, sub acute or chronic there must be some sign and symptoms – reason head injury then loss of consciousness readability and seizers and considering that sign, symptoms we have gathered that chronic subdural hematoma does not mean that a patient must suffer from subdural hematoma for many years but it is a type of hematoma and it is out of three acute, sub acute and chronic and chronic subdural hematoma in case of complainant’s case and considering all the facts we are convinced to hold that chronic subdural hematoma does not mean that the complainant suffered from chronic disease but one type of classification of subdural hematoma but in all cases a history of recent head injury must be there and fact remains that Dr. S. Ghosh already certified that starting point of subdural hematoma in case of the complainant started from 23-05-2011 and date of inception is also 23-05-2011.  Thereafter, SDH was managed surgically by burr hole and drainage B/L SDH and no doubt it was recent in origin but it was not chronic.

          But it is peculiar that TPA settled the claim by repudiating the same on the ground that subdural hematoma is chronic in nature and MRI report dated 23-05-2011 says so.  Then it is clear that the said TPA Doctors have their medical degree having no knowledge about classification of subdural hematomas.  It is to be mentioned in this regard that if within the brain mater blood is clotted and trauma is created in that case again and again convulsion or unconsciousness of the patient must be caused and it cannot be continued for years together.  So, as per medical treatment chronic subdural hematoma is not a pre-existing disease but it cause on certain occasion due to sudden injury caused to skull or brain or from inside from outside or due to fall.  But the simple medical theory has been misconstrued by the TPA then it can safely be said TPA is nothing but an agency of the insurance company for throttling the mediclaim policy holder and in this case it is exposed that TPAs without any legal foundation without studying medical journals and authoritative books and definition clause of chronic subdural hematoma.  So, we are convinced to hold that TPA should be stopped to assess the mediclaim policy’s nature of treatment and for ascertaining the actual nature of disease henceforth and fact remains in this case an unethical act has been done by the TPA and no nonsense person shall also shall have to believe that TPA applied their medical knowledge and sense in the present case and further it is found that insurance company did not also apply their judicious mind by taking opinion from the renowned doctor Dr. S. Ghosh in this regard and if actually they have their attitude to allow the claim about the disease of the complainant in that case OP Insurance Company may put such question to Dr.; S. Ghosh for clarification but that was snot demanded by the OP Insurance Company from  Dr. S. Ghosh but only relying upon their doctors under the throne of insurance company repudiated the claim but entire repudiation is uncalled for without any basis and against the spirit of medical assurance.  In the light of the above observation we are convinced to hold that the terms and conditions as laid down in Clause 1/2 (A to G) is not applicable in this case because complainant did not suffer any pre-existing disease and we declare that subdural hematoma cannot be a chronic disease but one classified type of SDH is chronic another is acute and third one is sub acute.  But in all cases the hematoma must be caused with a recent history of head injury. 

In the result, the case succeeds.

Hence,                                                                                        

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- (Rupees Ten thousand only) against the OPs and each OP shall have to pay a cost of litigation cost of Rs.10,000/- (Rupees Ten thousand only) each to the complainant.

          OP1 is hereby directed to release the entire mediclaim of the complainant as claimed along with a compensation of Rs.15,000/- (Rupees Fifteen thousand only) to the complainant within one month from the date of this order failing which OP1 shall have to pay penal interest of Rs.300/-(Rupees Three hundred) per day till full satisfaction of the decree.

          For adopting unfair practices for repudiating the claim of the complainant defying the principal classification of SDH and for not taking any opinion from Dr. S. Ghosh OPs are imposed to pay punitive damages of Rs.10,000/- (Rupees Ten thousand only) each and which shall be paid to this Forum and it is imposed only to rectify the nature and activity of the TPA and Insurance Company in future so that in future they may take opinion in respect of any definition disease before taking any decision of pre-existing disease from the doctor who examined the insured.

          OPs are directed to comply with the order within the stipulated period failing which for reluctant attitude of the OPs the penal proceeding shall be started and in that case also penalty of Rs.10,000/- shall be imposed as per provision of Section 27 of C.P. Act, and for which they shall be liable.