JUDGEMENT

          Complainant by filing this complaint has submitted that she purchased one Sampoorna Arogya Bima Policy being Policy No. 153500/48/09/8500007984 for her mother Smt Bina Pani Biswas for the period from 26.03.2010 to 25.03.2012 and the said policy was subsequently renewed for the period from 26.03.2010 to 25.03.2012 under Policy No.153500/48/8500009672 without break of insurance.

          During the validity of the said policy, Smt Bina Pani Biswas was admitted in the Medi Citi Nursing Home under the care, management and treatment of Dr. Mainul Hossain, MD with a complication of asthmatic bronchus (Left Respiratory Tract Infection, i.e. LRTI) with CAD (Coronary Artery Disease) for the period from 09.12.2010 to 14.12.2010 and for this hospitalization, the TPA Medsave Healthcare Ltd. has reimbursed a sum of Rs.12,537/- in settlement of incurred claim of Rs.14,114/- vide their cheque No.646856 dated 19.09.2011.

          The complainant’s mother had been suffering from COPD (Chronic Obstructive Pulmonary Disease) in winter season in the following year with seizure disorder and with HTN (hypertension) and she was admitted in the Medi Citi Nursing Home under the said doctor and stayed in the nursing home for the period from 30.11.2011 to 08.12.2011 and in this case TPA extended cashless benefit for Rs.15,000/- and complainant’s mother was discharged on 08.12.2011 from the said nursing home on the advice of TPA’s letter dated 02.12.2011 for disease “Acute Bronchitis”.

          After her discharge from the said Nursing Home on 08.12.2011, she had again suffered from COPD disease with HTN and with CAD for which the first claim was reimbursed by the TPA to the complainant and she was admitted to Labbaik Centre, Kolkata under the advice of Dr. Mainul Hossain, Md for treatment and the complainant has incurred a sum of Rs.64,169/- for treatment of her mother in the said Nursing Home for the period from 11.12.2011 to 23.12.2011 and the said treatment sheets, diagnostic reports and other papers had been submitted to TPA on 14.02.2012.  But complainant’s mother could not survive due to cardiac respiratory failure in a case of Hemorrhagic stroke with acute exacerbation of COPD on 23.12.2011. 

          But TPA denied the cashless benefit stating the clause No.4.1 pre-existing disease.  But fact remains that complainant in previous occasion reimbursed the claim for the same disease and in the first year of the policy and also granted Cashless facility for claim for acute bronchitis in the 2^nd year of the renewed policy.  It is specifically mentioned that complainant spent Rs.64,169/- for Nursing Home Bill, Rs. 1,300/- for C.T. Scan, for Ambulance Rs.250/- and medicines purchased and bills submitted of Rs.24,399/-.  It is case of the complainant even after submission of the seeking doctor’s certificate and the Doctor’s Certificate dated 21.03.2012 to 16.04.2013 TPA was silent and they did not respond and all the times their Receptionist did not allow the complainant to talk.  Complainant had written letters to the TPA but ultimately complainant did not get any reply after receipt of letter.  So, it is fault on the part of the Insurance Company and it is unfair trade practice also and for that purpose the present complaint is filed.

          On the other hand the Insurance Company by filing written statement submitted that the present complaint is no maintainable in the present form as the concerned TPA being Medsave Health Care (TPA) Ltd. ought to have been made a party and further it is submitted that as per IRDA Rules and Guidelines TPA settled the matter and the entire decision in respect of such settlement of claim is always taken by the TPA and op has submitted that they cannot go beyond the report of the TPA and fact remains that the claim what has been repudiated by a letter dated 28.03.2012 stating that the entire fact.  So there was no deficiency and negligence on the part of the op and prayed for dismissal of this case.

                                               Decision with reasons

          On proper consideration of the entire materials and after hearing the Ld. Lawyers for the complainant and also considering the letter of the TPA dated 28.03.2012, it is found that the TPA has reported that the complainant’s mother Bina Pani Biswas was aged about 69 years and was hospitalized for the period 11.12.2011 to 23.12.2011 at Labbaik Medical Centre and that hospitalization for treatment of COPD as per discharge summary and as per that document the left respiratory tract infection is for two years and such type of disease became pre-existing disease and the policy is effective since 26.03.2010, hence  the claim is not admissible as per Exclusion Clause 4.1 (pre-existence of Respiratory illness and previous illness on 2010) and for which the terms as received against pre-existing disease at the time of taking the policy for the first time and all pre-existing disease vide Exclusion Clause 2.1.1 of the policy and under the above circumstances TPA repudiated the claim.

          Against that letter complainant appeared before this Forum.  Now we shall have to consider whether the repudiation was illegal and arbitrarily or not and in this regard we have gone through the said letter and further it is found that during the period from 11.12.2011 to 23.12.2011 no doubt the complainant was admitted to the said hospital as per advice of the doctor because she had been suffering from COPD and HTN and ultimately she died on 23.12.2011 and that is the admitted fact.  Now we have gone through the discharge summary wherefrom it is found that complainant had been suffering from acute hypertension with COPD with seizure disorder and with HTN.  Further she was suffering from asthmatic bronchitis (Left Respiratory Tract Infection) LRTI with CAD and with such history she had been admitted to same hospital for the period from 09.12.2010 to 14.12.2010 and at that time in respect of that valid policy, the TPA disbursed a sum of Rs.12,537/- against total claim of Rs.14,114/- and that was in respect of previous policy which was valid from 26.03.2010 to 15.03.2011.  But present claim is in respect of another fresh policy which was valid from 26.03.3011 to 25.03.3012 vide Policy No.153500/48/8500009672.  But it is proved that at the time of opening this policy, complainant did not disclose that Bina Pani Biswas had been suffering from Left Respiratory Tract Infection with CAD and asthmatic bronchitis and truth is that during continuation of her policy Bina Pani Biswas was treated for such disease and thereafter that policy expired on 25.03.2011.  Then another new policy was taken by them on 26.03.2011 for one year with maturity date 25.03.2012.

          But truth is that at the time of taking that policy complainant did not disclose that Bina Pani Biswas was suffered from such pre-existing disease.  So, in the present case when Bina Pani Biswas was again admitted to present hospital for the period from 30.11.2011 to 08.12.2011 op did not allow it for Exclusion Clause 4.1 because complainant did not disclose about such pre-existing disease and history of disease like asthmatic bronchitis (LRTI) with CAD and for which this bill and other bills were rejected and truth is that Bina Pani Biswas had been suffering from the said and that was the cause of her death.

          So, considering the above fact including the terms and conditions of the Sampoorna Aryoga Bima Policy, it is found that as per policy condition 1/1 pre-existing disease/injury condition/defects/abnormality means mental or physical condition which existed on the date of inception of the policy for which insured received medical advice or treatment or treatments are such for which present complainant would seek medical advice for her treatment.

          Moreover as per Clause 2(1) (1) all diseases/injuries, which are pre-existing when the cover incepts for the first time this Exclusion Clause will be deleted after three consecutive continuous claims free policy years in respect of all diseases other than heart and circulatory disorders for which the period will be 5 years provided, there was no hospitalization for pre-existing disease or ailment during such three years or five years of insurance.

          Considering that Clause, it is clear that the complainant’s mother Bina Pani Biswas had been suffering from pre-existing disease and within 3 years from the inception of the first policy she claimed for the first time in respect of first policy.  So, for same cause of disease that pre-existing disease complainant is not entitled to get any benefit.  It is clear that op is right in repudiating the claim.  Moreover from that conditions, it is also found that in the present case no doubt complainant suppressed the fact of sufferings of the lady and that was no doubt pre-existing disease and in the present case also complainant’s mother was admitted to the hospital with such previous pre-existing disease like asthmatic bronchitis.

          So, the doctor’s discharge certificate simply proves that this lady was admitted with continuous history of asthmatic bronchitis with other disease for which like HTN, COPD and truth is that in respect of that terms in previous occasion (against first policy) payment was made.  But it is sufficient to prove that at the time of opening the second policy complainant reported all the matter but that had not been expressed by the complainant in the policy.  But it is the obligatory duty on the part of the insured to express and write in detailed about his/her health condition and about pre-existing disease but that had not been done.

          Then it is clear that it was suppression of fact for which invariably insured cannot get any benefit.  Another factor is that Clause 2/1/1 of Sampoorna Aryoga Bima Policy is fully applicable in this case considering the fact that the insured suppressed the truth about her health and truth is that she had been suffering such type of pre-existing disease and same are no doubt noted in the discharge certificate and treatment sheet in the last occasion and also in the previous occasion.  So under the above circumstances insured and the insurer must be guided and governed by the terms and conditions of the policy and under any circumstances the Forum has no authority to give any relief because Forum shall have to consider two things – whether service has been rendered properly or not or in respect of case whether there is any defect.  But in the present case only question is whether service was done by the op diligently or not and in this case the claim has been decided and repudiated by the ops stating the fact that the patient had been suffering from pre-existing disease and that is proved from the complainant’s own complaint.

          Then it is also proved that insured acted illegally and suppressed the health condition of her mother and that is pre-existing disease and that was in existence because in earlier occasion op released a sum.  Then on subsequent occasion when the policy was made and it is bound on the part of the complainant to report that on previous occasion Bina Pani Biswas has been suffering from any pre-existing disease and now they are coming before this Forum to contest.  How this condition and clause of the policy was bound to insurer when it is a Mediclaim Policy.  Question is whether it is a contract or not.  Invariably it is a contract.  When it is a contract as per Contract Act either of the policy of the contract cannot go always the clause and the Forum cannot introduce any new clause to give relief and in this regard already showing the judgement which has been passed by the National Commission and where National Commission has also confirmed that there is no scope to show equity if it is found that the insured has not disclosed the pre-existing disease at the time of opening of any policy and in this case it is proved beyond any manner of doubt about pre-existing disease and complainant’s admission is there in the complaint.

          Then invariably complainant is not entitled to get any relief and repudiation as made by the complainant is no doubt legal, valid and with foundation for which under any circumstances this Forum cannot go beyond such policy and for that reason under any circumstances complainant has been proved a liar in respect of purchasing the policy and in this regard we are convinced to hold that the present repudiation was justified, legal, valid and we came to a conclusion after relying up a ruling reported in 2013 (4) CPR 165 NC that this Forum for any purpose of the policy are strictly governed by the policy conditions and terms and no exception or relaxation can be made on the ground of equity also and moreover the Medical negligence is a very special policy.  So, there is no scope to grant any relief to the present complainant.  When in the particular case the complainant has failed to prove deficient and negligent manner of service on the part of the op.

          In the result, the complaint fails.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the op.