West Bengal

South 24 Parganas

CC/429/2015

Chira Ranjan Dass. - Complainant(s)

Versus

M/S. Star Health and Allied Insurance Co. Ltd. - Opp.Party(s)

20 Dec 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _429   OF ___2015____

 

DATE OF FILING : 23.9.2015                   DATE OF PASSING JUDGEMENT: 20/12/2016

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                    

 

COMPLAINANT                  :  Chira Ranjan Dass,A/7, Ved Pragya Complex, 101/A, Santosh Roy Road, Brisha, Kolkata – 8.

 

-VERSUS  -

 

O.P/O.Ps                                :   M/s Star Health & Allied Insurance Co. Ltd. 738/2, D.H. Road, 2^nd floor, Kolkata – 8, P.S Thakurpukur.  

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that the wife of the complainant, Smt. Bijan Rani Dass, was admitted to B.M. Birla Heart Research Centre on 3.7.2015 for Pacemaker Implantation and discharged on 5.7.2015. Again she was admitted on 31.7.2015 and discharged on 9.8.2015 due to Gastritis . In both the cases the claim of the complainant for benefit were rejected on the ground that she had undergone Mastectomy operation (related to Cancer) in 1988 and it was not disclosed during the inception of the first policy from 23.9.2011. But in the policy it was written “A pre-existing disease means one that existed or showed symptoms within 48 months of policy inception. Hence, question of disclosing the fact of her operation in 1988 does not arise. Moreover, the wife of the complainant is now free from the disease . Complainant paid Rs.2,54,325/- firstly and second time he paid Rs.51,553/- .But the O.Ps rejected the claim on flimsy ground, for which this case has been filed praying for compensation of Rs.8.0 lacs etc.  

            The O.P contested the case by filing written version denying all the material allegations contending inter alia that complainant is guilty of suppression of material facts and misrepresentation. The positive case of the O.P is that wife of the complainant was first hospitalized at BM Birla Heart Research Centre from 3.7.2015 to 5.7.2015  and again hospitalized at Calcutta medical Research Institute from 31.7.2015 to 9.8.2015 and insured patient had undergone Right Radical Mastectomy in the year 1998 followed by Chemotherapy, appearing from the medical report of B.M Birla Heart Research Centre dated 5.7.2015 which is concealed by the proposer at the time of filing the proposal form . In support of their case, the O.P cited various rulings and ultimately prays for dismissal of the case with heavy cost.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken together for the sake of convenience, as they are interlinked. 

            After scrutinizing complaint, written version, evidence of both sides , questionnaire and reply of both the parties and all other documents brought before this Forum by the parties, it is crystal clear  that admittedly in the instant case the complainant took a mediclaim insurance policy from the O.P, covered with medical expenses of his wife after paying the premium as “Consideration”. Therefore, complainant is a “Consumer” and the O.P is a “Service Provider” as per section 2(1)(d)(ii) and Section 2(1)(o) of the COPRA, 1986. Thus the point no.1 is discussed and the same is in favour of the complainant.

            To decide other two points following discussion is advanced. Admittedly wife of the complainant was hospitalized under B.M. Birla Heart Research Centre on 3.7.2015 and discharged on 5.7.2015 and again she was admitted on 31.7.2015 and discharged on 9.8.2015.

            The crux of the case is that the claim of the complainant for the aforesaid medical treatment  of the wife of the complainant as she is covered under the mediclaim policy in question and the hospitalization was very much within the policy period. But the O.P has repudiated the same on the ground of pre-existing disease. It is crystal clear from the record that the wife of the complainant had undergone Right Radical Mastectomy  in the year 1998 followed by Chemotherapy . It is also noticed by this Forum that the in the Mediclaim Insurance Policy it is mentioned by the O.P /insurer in black and white “Pre-existing disease means any condition, ailment or injury or related condition (s) for which the insured person had signs or symptoms and/or was diagnosed  and/or received medical advice for treatment within 48 months prior to the insured person/person’s first policy with any Indian Insurer.

            Here, we emphasis the clause that insurer at the time of taking the policy should disclose about any ailment caused within 48 months prior to the insured persons first policy with any Indian Insurer.

            In the instant case the treatment of Mastectomy of the wife of the complainant was occurred much before that 48 months with respect to the date of issuance of policy in question. Moreover, it is also the point to be considered that being the insurer and having every possibility to investigate including medical check up before issuance of the mediclaim policy and Insurer has sufficient strength for the same but instead of that Insurer with the ulterior motive grabbed the money from the ordinary people this way or that way by receiving the consideration at the time of issuance of policy in the form of premium and thereafter time to time .

            Here it is needed to be mentioned that Ld. Advocate for the O.P has referred some citations of Hon’ble Appellate  Courts . We have gone through those remarkable judgments/decisions but those decisions are not relevant with the instant case. Therefore, in the light of the above discussion we find no valid ground to repudiate the justified claim of the complainant towards the expenses of hospitalization of the wife of the complainant by the O.P on the ground of pre-existing disease and the repudiation of claim of the complainant amounts to violation of its own contract as the wife of the complainant was treated for Mastectomy operation, which was not occurred within 48 months from the date of issuance of the policy in question and this act of the O.P should be considered as a deficiency in rendering services of the O.P towards the complainant/consumer.

            Moreover, it is also a pertinent point to be considered that the claim of the complainant is for medical expenses for implantation of pacemaker i.e in quite different ailment and ,therefore, the repudiation of the claim by the O.P on the ground of “Pre-existing disease” has no leg to stand upon in the instant case.

            It is strongly opined by this Forum that O.P/Insurer is duty bound to release the claim amount in question in favour of the complainant. It is also beyond doubt that due to the aforesaid deficiency in service of the O.P complainant has to suffer tremendous mental agony, harassment and also financial loss and O.P is liable to aptly compensate the complainant.

            Thus the complaint case succeeds.

            Hence,

                                                                        Ordered

That the complaint case be and the same is allowed on contest against the O.P.

The O.P is directed to pay the claim amount of  Rs.3,05,878/- to the complainant within 30 days from this date.

The O.P is also directed to pay Rs.50,000/- towards compensation for suffering mental agony and harassment by the complainant  and to pay Rs.5000/- towards cost to the complainant within 30 days from this date, failing which the O.P shall have to pay interest @10% p.a on the total decreetal amounts  from the date of default till its realization.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President                                

 

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

                                   

 

Ordered

That the complaint case be and the same is allowed on contest against the O.P.

The O.P is directed to pay Rs.3,05,878/- to the complainant within 30 days from this date.

The O.P is also directed to pay Rs.50,000/- towards compensation for suffering mental agony and harassment by the complainant  and to pay Rs.5000/- towards cost to the complainant within 30 days from this date, failing which the O.P shall have to pay interest @10% p.a on the total decreetal amounts  from the date of default till its realization.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President