In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 285 / 2007 1) Mr. Jyotirmoy Majumder, 98, Rajdanga, P.S. Kasba, Kolkata-700 107. ---------- Complainant ---Verses--- 1) National Insurance Co. Ltd., 3, Middleton Street, Kolkata-700071. 2) Family Health Plan Limited, 16/2, Lake View Road, Kolkata-29. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member Order No. 1 8 Dated 2 2 / 0 1 / 2 0 1 0 . The instant case arises out of the complaint made by Sri Jyotirmoy Mazumdar, the complainant against (1) National Insurance Co. Ltd. having its registered office at 3, Middleton Street, Kolkata-71 and its Kolkata Regional Office-1 at National Insurance Building, 2nd floor, 8, India Exchange Place, Kolkata-69 u/s 12 of C.P. Act, 1986 with a prayer to pass an order directing (a) the o.ps. to reimburse Rs.2,10,000/- for treatment of the complainant forthwith, (b) the o.ps. to pay interest of Rs.37,800/- @ 9% p.a. on the claim amount of Rs.2,10,000/- (from 20.11.05 to 20.7.07), (c) the o.ps. to pay further interest @ 9% p.a. on the admissible claim amount from 21.7.07 till date of actual payment, (d) the o.ps. to pay the cost of proceedings to the tune of Rs.10,000/-, (e) the o.ps. to pay a compensation of Rs.50,000/- for inconvenience caused to the complainant for non-processing the mediclaim and (f) any other relief or reliefs deemed to be fit under law and equity. Sri Jyotirmoy Mazumdar, the complainant got the Hospitalization and Domiciliary Hospitalization benefit policy in the year 1999 from the National Insurance Co. Ltd., Division-III for self and his wife Smt. Leena Mazumdar on payment of Rs.3549/- as the annual premium. Subsequently, the Hospitalization and Domiciliary Hospitalization policy bearing no.100301/48/98/00760 was issued to him for the period from 1999 to 2000. Thereafter, the policy was renewed by the complainant for the period from 2000 to 2001, 2001 to 2002 and 2002 to 2003 by paying the requisite premiums for the same and accordingly the o.p. no.1 issued a Hospitalization and Domiciliary Hospitalization benefit policy bearing no.100301/48/98/00760 for the period from 1999 to 2000. Thereafter, the complainant again renewed the said policy from 2000 to 2001, 2001 to 2002 and 2002 to 2003 by paying the requisite premiums for the said policy and accordingly the o.p. no.1 issued a Hospitalization and Domiciliary Hospitalization benefit policy certificate bearing no.100301/48/1999/8500941, 100381/48/82/8502338 and 100301/48/03/8500367 respectively for the said periods (annex-A). Thereafter, the complainant renewed the said policy including his daughter Chandrani Mazumdar in family policy and paid the premium of Rs.7324/- and o.p. no.1 issued a Hospitalization and Domiciliary Hospitalization benefit policy certificate bearing no.100301/48/03/8502524 to him for the period from 10.3.04 to 9.3.05. The said policy was further renewed on payment of premium of Rs.8071/- and accordingly, Hospitalization and Domiciliary Hospitalization benefit policy certificate bearing no.100301/48/04/8502990 was issued to the complainant by the o.ps. for the period from 10.3.05 to 9.3.06 (annex-B). The claim for reimbursement of expenditure incurred by the complainant for undergoing surgery of his Rectal Cancer on 31.10.05 by Dr. A.V. Dalal, MBBS, MS FRCS, FICS< Cancer Specialist of Joslok Hospital, Mumbai, was repudiated by the o.ps. on the ground that this rectal cancer was pre-existing disease. But in the opinion of Dr. Pranab Kr. Chowdhury, MBBS (Cal), MS (Genl) (Cal), FICS ( Oncology), USA who along with Dr. A.P. Mazumdar, Senior Cancer Surgeon, did the operation of carcinoma of left colon of the complainant and in the opinion of Dr. A.V. Dalal, Oncologist, the instant disease was new and not a pre-existing one and was not related to previous one which occurred 13 years ago in left colon and not GI Tract, i.e. rectum. According to the advice of the doctors, the complainant was admitted to Joslok Hospital and Research Centre at 15, Dr. Deshmukh Marg, Mumbai-400026 on 30.10.05 under supervision of Dr. Amish Dalal (Cons. Onco Surgeon) and the complainant was operated on 31.10.05 and was subsequently discharged on 23.11.05. It was pertinent to mention that the complainant incurred a total expense of Rs.389195/- only towards his treatment (annex- enclosures with petition). The complainant in terms of the Hospitalization and Domiciliary Hospitalization benefit policy duly filled a Mediclaim Form issued by the o.p. no.1 for the period of treatment from 30.10.05 to 23.11.05 and deposited all the relevant papers and original bills amounting to Rs.389195/- only for the aforesaid treatment on 20.11.05 and asked the o.ps. to process the claim (annex- enclosure with petition). On receipt of a letter dt.23.12.06 from o.p. no.2 to his utter surprise to the effect that according to adjudication department and medical team “the present Hospitalization is for the management of an ailment, which is related to a pre-existing condition. Hence we regret to inform that your claim is repudiated”. Thereafter, the complainant wrote a letter dt.2.2.06 to o.p. no.2 annexing the original certificate issued by Dr. P.K. Chowdhury and Xerox copy of certificate issued by Dr. A.V. Dalal stating that the “ailment” for which the complainant being treated is not pre-existing one and requested to review the claim (annex- letter dt.2.2.06 of the complainant addressed to the Manager, Family Health Plan Ltd., the o.p. no.2). But even after receiving the aforesaid letter, neither any reply nor any step taken to settle the claim. As such, the complainant sent a reminder to o.p. no.1 on 8.6.06 and demanded the intervention of the General Manager, National Insurance Co. Ltd. and also the Chairman of IRDA for immediate settlement of the claim. The IRDA duly acknowledged the complaint of the complainant by its letter 11.8.06 bearing memo no.430/NIC/Comp/06-07 in which the IRDA stated that they have taken up the matter with National Insurance Co. Ltd. (o.p. no.1). Of late, the complainant received a letter dt.2.1.07 from the o.p. no.1 to the effect that “carcinoma left colon detected in 1991. Second primary in rectum in 2005. It is an established fact that carcinoma colon increases the likelihood of second primary in longtime survivors. Hence, we regret to inform that the claim is repudiated for pre-existing disease vide clause 4.1 of standard mediclaim policy so the claim is not payable” (annex-enclosure with petition). Finding no other alternative, the complainant sent a notice through his advocate on 16.1.07 calling upon the o.p. no.1 to resolve the dispute amicably within 15 days of receipt of the said notice, otherwise the complainant would have no alternative but to take necessary legal action against them before the appropriate authorities/Forum without any further reference. But nothing was done in response to his advocate’s notice. Hence, the case u/s 12 of C.P. Act, 1986 filed by the complainant against the O.Ps. Decision with reasons :- On perusal of records and documents on records including the pleadings, affidavit of evidence of the complainant, the B.N.A.s of both the parties, it is evident that the complaint was lodged on 21.8.07 and the complaint was heard by us on 7.9.07. Notices were also served upon the o.ps. in proper manner. On going through the records, documents on record, affidavit of evidence of the complainant and BNA of both the parties, it is evident that the most pertinent question is whether the instant disease of the complainant, viz. Rectal Cancer is pre-existent or not. Before arriving at the decision in respect of the aforesaid pertinent question, we may look into the decisions given in respect of appeal petition in Oriental Insurance Co. Ltd. v. Rajinder Singh (Punjab SCDRC)).325 reported in CTJ Dec.2008 and Andrew John Gosain V. New India Assurance Co. Ltd. and another (UT Chandigarh SCDRC)P.654 reported in CTJ Dec.2008 respectively. In the appeal case of Oriental Insurance Co. Ltd. V. Rajinder Singh (Punjab SCDRC)P.325 reported in CTJ, Dec.2008 it was held that “not only the disease be pre-existing, but the insured must also have a knowledge of the same – such a knowledge could be in the form of taking of some treatment in a hospital or otherwise – No such evidence produced. Appeal dismissed”. Again, in the appeal case of Andrew John Gosain V. New India Assurance Co. Ltd. and another (UT Chandigarh SCDRC)P.654 reported in CTJ Dec.2008 it was held that “cause of action to the appellant clearly arose only on 10.2.05 based on the letter of repudiation sent by respondent to him – Therefore, the complaint filed on 7.11.06 held to be within the limitation period and as such, maintainable – Further, in absence of any evidence to the contrary the appellant’s plea that he did not have any knowledge of any previous heart ailment and he tested positive in the TMT test only on 17.4.03 after 2 months of purchasing the policy effective from 17.2.03 fully agreed with and upheld - Resultantly, repudiation of the claim held to be wrong”. In the instant case, the complainant admitted that his disease of cancer in colon in 1992 and underwent surgery, viz. colonoscopy on 10.4.1992. Thereafter, he was followed up repeatedly with regular investigation, e.g. CT Scan, CEA Level, x-ray chest, USG, FOB test and colonoscopy after 1993 on yearly basis and they were all found to be within normal limit since 1993 as is evident from the medical certificate dt.9.11.05 given by Dr. Pranab Kr. Chowdhury, Oncologist and head of the deptt. of surgery of Chittaranjan National Cancer Institute, Kolkata. Dr. Chowdhury also stated in the aforesaid certificate that in October, 2005 the complainant complaint to him with a history of bleeding from rectum for a period of one week which was investigated properly. After colonoscopy and biopsy he was diagnosed to be a case of ‘carcinoma rectum’ and advised early surgery. Dr. Chowdhury also categorically stated that the complainant was cured and free from primary disease, i.e. carcinoma in left colon which occurred 13 years back. In his considered opinion, this episode of carcinoma in later part of 2005 was now occurring in different site of G.I. Tract, i.e. Rectum and it was not related to the previous one. He move an affidavit to that effect. In conformity with Civil Rule no.9918(W) of 1976, Dt.17.1.77 given in Gouri Sankar Mukherjee, petitioner v. State of West Bengal and others (AIR 1977, Calcutta 125) (annex- enclosure of petition and annex- enclosure of affidavit of evidence). But this affidavit of evidence of Dr. Chowdhury was neither controverted nor refuted by the affidavit of evidence by any oncology specialist in support of the claim of the o.ps. that the disease was pre-existent. Again, Dr. A.V. Dalal, cancer specialist of Joslok Hospital, who operated the rectal cancer of the complainant on 31.10.05, opined in his medical certificate dt.9.11.05 that in view of the 13 years since the surgery of left colon and the fact that the complainant has had no cancer treatment in the interim period, this new cancer (rectal cancer) was a second primary tumor and not a pre-existing condition/disease (annex-enclosure of petition). But o.p. no.1 in his letter dt.2.1.07 addressed to the complainant stated that “Carcinoma left colon detected in 1992. Second primary in rectum in 2005. It is an established fact that carcinoma colon increases the likelihood of second primary in long time survivors. Hence, we regret to inform that the claim is repudiated for pre-existing disease vide clause 4.1 of standard mediclaim policy so the claim is not payable” (annex-enclosure of petition). It is worth mentioning here that the o.p. did never adduce any evidence by any specialist to prove that the said disease of the complainant is pre-existing. And nowhere in o.ps’. letter dt.2.1.07 specific reasons for which the instant ailment was pre-existing were cited. Rather, the ld. Advocate for the o.ps. bypassed the question put to him from ld. Bench of the Forum in respect of the names and qualifications of the teams of doctors and focused on the question of maintainability on the pre-existing disease of the complainant. The ld. Advocate failed even to produce the ‘Proposal Form” for the purchase of the policy by the complainant before the Forum. This apart, nowhere the o.ps. cited any evidence to prove that at the time of accepting the proposal form by the o.ps. that even after 13 years since the occurrence of cancer in left colon of the complainant and cured thereafter, which was disclosed by the complainant without any reservation (annex- para 16 of the petition). All the above conducts of o.ps. attracts the attention of Section 114(g) and 103 of Indian Evidence Act, 1872 wherein it is laid down that a party in possession of best evidence which would throw light on the issue in controversy withholding it – court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him – party can not rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it, vide decision of Hon’ble Supreme Court of Indian in Civil Appeal no.954 of 1965, D/-19-4-1964 and reported in AIR 1968, SC1413. Even for the sake of reason, if it is held that the ailment of the complainant in question was pre-existing, but the insured must also have the knowledge of the same and such a knowledge could be in the form of taking some treatment in a hospital or otherwise. No such evidence could be adduced by the o.ps. In the absence of any such evidence to the contrary, the complainant’s plea that his present ailment (Rectal Cancer) is a new one, could not be refuted and more so because of the specific opinion of reputed and recognized oncologist, viz. Dr. Pranab Kr. Chowdhury and Dr. A.V. Dalal, the consultant oncologist of Jaslok Hospital that the present ailment (Rectal Cancer) was new and not related to the previous one (left colon) which occurred in 1992, i.e. 13 years back vide appeal case of oriental Insurance Co. Ltd. V. Rajinder Singh (Punjab SCDRC)P.325 and appeal Case of Andrew John Gosain V. New India Assurance Co. Ltd. and another (UT Chandigarh SCDRC) P.654 as reported in CTJ, DEC. 2008. Mere a communication in writing by the o.ps. that the present ailment of the complainant was pre-existing without being backed by any evidence, is just whimsical and preposterous. Thus keeping in view of the circumstances and all aspects of this case, it is hereby held that the complainant has been successfully able by his oral submission and documentary evidence on record to substantiate his allegations against the o.ps. who had resorted to various tactics to deprive him (Complainant) of his legitimate claim) and leading to his harassment and mental agony at his age of 64/65 years and causing deficiency in service through unfair trade practice. In the backdrop of this case, the most pertinent question that crops up is for whom this Health Care Scheme is meant for. Surely not for opulent persons since they are in a position to bear the expenses of their illness without seeking help from the insurance companies. Obviously, most of the premium amount comes from the common people, mainly, the middle income group. But in times of their illness, if they are denied of mediclaim facilities (cashless/reimbursement) by insurance companies dealing with ailments of the insured on various pretext, then the people will be reluctant or feel less interested in buying the mediclaim policy and insurance companies dealing with mediclaim will be in serious financial crisis leading ultimately to their collapse. To avert this possibility, these companies should think of introducing changes in the terms and condition s of the policy which will be sympathetic as well as customer friendly. The very august purpose of mediclaim policy will be frustrated if repudiation and refusal of claim of the parties on flimsy and technical ground becomes rampant in a country like ours whose guiding principle is based on welfare activities of both govt. and non-govt. organization as per Directive Principle of our Constitution of India. In this contest, it is worth mentioning that the complainant is entitled to Rs.1,89,195/- only since he was awarded Rs.2,00,000/- only in CDF/Unit-1/Case no.142/2006 against Royal Sundaram Alliance Insurance Co. Ltd. on the same ailment against his mediclaim policy having the coverage of Rs.2,00,000/- only from this Forum. The complainant should keep it in mind that he should not claim more than his entitlement and this Forum is not a money minting machine. Hence, ordered, that o.p. no.1 is directed (a) to pay Rs.1,89,195/- (Rupees one lakh eighty nine thousand one hundred ninety five) only to the complainant towards the cost of hospitalization expense, treatment expenses and post operation hospitalization within thirty days from the date of communication of this order and in default, the above amount will carry an interest @ 10% p.a. till full recovery, (b) to pay a compensation amounting to Rs.50,000/- (Rupees fifty thousand) only for causing harassment and mental agonies to the complainant at his age of 64/65 years within thirty days from the date of communication of this order and failing which, the aforesaid amount will carry an interest @ 10% p.a. till its full recovery and (c) to pay litigation cost of Rs.5000/- (Rupees five thousand) only within thirty days from the date of communication of this order and failing which the said amount will carry an interest @ 10% p.a. till its full recovery. Fees paid are correct. The case is thus disposed of from this Forum. Supply certified copy of this order to the parties on receipt of prescribed fees. _____Sd-______ ______Sd-_________ MEMBER PRESIDENT | 
