JUDGEMENT

          Complainantby filing this complaint has submitted that complainant has his Mediclaim Insurance Policy bearing no. 101000/48/11/8500003656 with the op no.1 for his spouse Smt. MousumiChatterjee which was purchased on 18.08.2011 and also for his daughter KumariPriyankaChatterjee and premium had been paid regularly and the policy was renewed from time to time.

          The present insured is aged about 43 years by occupation housewife and her sum insured was Rs.1,50,000/-.  Fact remains that insured suddenly suffered from high fever and as per advice and prescription dated 13.08.2012 of a general physician Dr. M.N. Kolay and also prescription dated 14.08.2012 the consultant physician Dr. Chayan Roy she was admitted at nursing home named as “Orchid Nursing Home” of P-17, CIT Road, Kolkata-54.

          But the fact of admission was informed to the TPA namely Genins India TPA Ltd. at an earliest opportunity that SmtMousumiChatterjee had been admitted to Orchid Nursing Home on 14.08.2012 at 10:00 PM due to high fever and the admission was registered under Registration No.4160 and during treatment complainant paid medical expenses of Rs.31,818.86/- and after that complainant submitted claim form along with letter dated 03.09.2012 with supportive medical documents in original address to the op no.1 and submitted before TPA on 06.09.2012 as per norms.  But in respect of that on 03.09.2012 op no.2 issued a letter dated 25.09.2012 requesting the complainant to provide exact duration of Hepatitis and recurrent fever with underline cause to be certified by the treating doctor since when the patient was suffering and complainant immediately supplied all the necessary prescriptions dated 24.10.2011, 10.02.2012, 25.06.2012 and 10.07.2012 to the op no.2 vide a letter dated 26.09.2012.  but after receipt of that op no.1 repudiated the claim and passed an order through its regret letter dated 13.12.2012 to the fact “the present claim is related to management of condition in respect to which symptoms related to the disease condition were present for one year as reflected from the documents.  This is prior to policy inception.  Hence, claim merit repudiated, vide Clause No. 4.1 of policy condition”.       

          Being aggrieved by the aforesaid order the complainant further filed a representation dated 18.12.2012 before the op no.1 for reconsideration and filed a case history prepared by the treating physician Dr. Chayan Roy and necessary pathological tests reports and prescriptions to justify that the conclusion of pre-existing disease but practically it was not in existence.

          In response to the aforesaid representation the op no.1further sent a regret letter dated 30.01.2013 stating in details the cause for repudiation.  In this regard complainant stated that Blood Sugar was detected a day before admission in the aforesaid nursing home and under no circumstances it was pre-existing.  Further alleged that the medicine for hypertension was prescribed by the physician long after initiation of the policy and cannot be considered as pre-existing and so the op is liable to pay the mediclaim compensation as per policy.

          On the other hand op Insurance Company by fling written statement submitted that the claim was repudiated on ground that the patient MousumiChatterjee the wife of the complainant suffered from fever with various ailments since one year i.e. prior to the inception which are evident from the discharge summary of Orchid Nursing Home Kolkata and the various prescriptions of Dr. M.N. Kolay and Dr. Chayan Roy who examined her regularly and the Mediclaim Insurance Policy issued to the complainant commenced from 18.08.2011 to 17.08.2012 for pre-existing disease as per Cluase 3.5 and 4.1 of the Medical Insurance Policy issued by the op in favour of the complainant.

          Another point was mentioned to that effect that Dr. Chayan Roy who treated the patient MousumiChatterjee atOrchind Nursing Home prepared a case history on 17.12.2012 was a matter of gesture and obligation wherein it may be mentioned that recurrent high fever does not mean patient having a history of hypertension may be cause for so many reasons like PUO and other injections and this fact indicates that for what reasons it caused he is not aware and he placed his patient party that too long after the discharge of the patient which has no impact of the case.  In the above situation the matter was refused on admission of the complainant but so at late stage the claim of the complainant was rejected due to pre-existing disease.  But complainant has made some allegations which are false and fabricated and there was no negligence or deficiency on the part of the op.

Decision with reasons

          On careful consideration of the argument as advanced by the Ld. Lawyers of both the patries and also considering the certificate of Dr. Chayan Roy dated 17.12.2012 it is found that Dr. Roy specifically mentioned that he treated the complainant’s wife MousumiChatterjee but he did not find any pre-existing disease and further he has stated that lastly after investigation she was diagnosed viral Hepatitis with jaundice with HTN & DM Hypothyroidism and it was during her admission and she was treated conservatively and discharge in stable condition on 19.08.2012.  But she was admitted on 14.08.2012.  So, it is clear that she was in the Orchid Nursing Home or Hospital from 14.08.2012 to 19.08.2012 and practically prior to that she had not been suffering from Hepatitis.  There was no other symptoms as it is evident from the prescription of Dr. M.N. Kolay.  So, the doctor opined that there was no pre-existing disease of Hepatitis or Hypertension or Blood Sugar.  This certificate was also sent to the op when op asked for the case summary of her treatment etc and op received it no doubt.

          Fact remains Orchid Nursing Home issued discharge certificate and after admission and treatment it was found that she was suffering from viral Hepatitis with Jundice.  But it is to be mentioned in this regard that she was treated from 14.08.2012 to 19.08.2012 whereas first policy was started from 18.08.2011 with expiry date on 17.08.2012 and second policy was renewed on 12.08.2012 and its risk covering period was 18.08.2012 to 17.08.2012.

          Fact remains that MousumiChaterjee was admitted on 14.08.2012 i.e. fag end of the risk covering period 18.08.2011 to 17.08.2012 and she was released on 19.08.2012 when second policy was renewed.  So, it is clear during the coverage period of the first policy (starting from 18.08.2011 to 17.08.2012) she had not been suffering from any pre-existing disease not even she had any pre-existing disease on the date of opening of the first policy on 18.08.2011.  But fact remains on 24.10.2011 for the first time she suffered from fever body ache, nausea so Dr. Kolay examined her and gave her some analgesic tablets for her coverage.

          Subsequently further she suffered from bodyacheetc on 10.02.2012 and Dr. Kolay treated her with some anti-biotic and analgesic tablets and she recovered.  Thereafter lapse of 4 months again she suffered from fever, bodyache and so Dr. Kolay gave her some antibiotic analgesic tablet but at thattime blood pressure was high so anti-hypertension was given and she revovered.  But subsequently on 13.08.2012 again she suffered from fever etc when Dr. Kolay treated her and at that point of time Dr. Chayan Roy was consulted by her husband for second opinion from Dr. Chayan Roy who examined her fully on 14.08.2012 and advised her for admission for thorough investigation and further on thorough investigation it was found that she was suffering from Hepatitis and Jundice with HTN, DM Hypothoridism and she was treated and she recovered on 19.08.2012.

          Considering the delivered summary history of Dr. Chayan Roy we find that the present lady had not been suffering from pre-existing disease at any point of time or from 18.08.2012 or before that or up to 14.08.2012.  But practically on 14.08.2012 after thorough investigation at Orchid Nursing Home it was detected that she was suffering from Hepatitis, Jundice and that Hepatitis with Jundice but it was not pre-existing disease and she recovered from that after 19.08.2012 being admitted on 14.08.2012 and that Dr.Chayan Roy has specifically opined that the said ailment was not related to any pre-existing disease and it may be developed from such Hepatitis with Jundice.  So, under any circumstances, such a disease cannot be treated as pre-existing disease.  This was issued by Dr. Chayan Roy and op no.1 received it as per request of op no.1 from the complainant but in the written statement op no.1refused to accept it.  But question is under what circumstances Insurance Co. did not rely upon such medical certificate.

          We have also considered all the medical documents and have gathered that at any point of time prior to opening of the policy on 18.08.2011 up to 14.08.2012 complainant was not suffering from any pre-existing disease.  Most interesting factor is that for the purpose of repudiating the claim of the complainant, op no.1 the Insurance Company refused to accept the said certificate.  But they cannot do that without examining that doctor.  But no such examination of the doctor was made by the doctors of the op no.1.  About TPA’s version we have gathered that TPAs are born for the purpose of refusing the claim of the insured of all the cases and in fact they are selected by the insurance company only for repudiating the claim of the insured.  But op no.1 is born and established only for the purpose of collecting premium, opening mediclaim policy but not in disbursing the mediclaim amount and in this case it is most astonishing that the complainant submitted the claim of Rs.31,818.86/- but that was also repudiated.

          After considering the entire fact and circumstances we have gathered that no doubt TPA has taken a very bad path and it is our experience in view of the fact the present President and one male Member were in 3 Forums one at Coochbehar and another at Barasat and now in this Forum and we have gathered that Insurance Company are repudiating the claim for which number of cases are filed in the District Forum by the insured.  But it cannot be the social approach of the insurance company because insurance law is a social legislation and at the same time Hon’ble Supreme Court in a very vital judgement specifically gave observance by a constitution Bench of the APEX Court that in any case of ambiguity in a contract of insurance the ambiguity should be resolved in favour of the complainant and against the insurance company and that judgement was passed in case General Assurance Society Ltd. (Vs)  ChandmalJha  in AIR 1996 SC 1644.

          Further another judgement reported in 2010 (I) CHN (SC) 130 also supports that view.  So, considering all the above facts and circumstances we are convinced to hold that TPA without applying any medical conception and knowledge repudiated the claim without any valid reason and no doubt the insurance company relies upon the TPA’s verdict and they never go against the TPA’s verdict and for which we find that insurance company must be more vigilant in future about TPAs verdict and shall opine after taking separate opinion of medical board or shall ask the doctor who examine the insured at the time of opening.  But that procedure has not been taken by the insurance company in the present case. 

          For the sake of the argument if it is accepted that the report of the Dr. Chayan Roy was defective one in that case op no.1 can put such question to Dr. Chayan Roy in this regard for clarification and they also did not examine MousumiChatterjee in this case for proving the fact that Dr. Chayan Roy submitted a false opinion.  But anyhow op no.1 did not try to falsify the report of Dr. Chayan Roy dated 17.12.2012 regarding case summary of the treatment history of the patient MousumiChatterjee and it simply proves that insurance company acted illegally and only for purpose of repudiating the claim and the report of the opinion of Dr. Chayan Roy was rejected which is unfortunate.

          But we are convinced that the lady had not been suffering from any pre-existing disease.  But it was all on a sudden caused for which MousumiChatterjee was admitted to Orchid Nursing Home as per doctors opinion she was treated and recovered and for the above reasons we are convinced that the cause of repudiation only on the ground that she had been suffering from Hepatitis with Jundice, Blood Sugar for long period etc. is completely baseless and in the light of the above observation and findings we are of the opinion that repudiation was not legal and complainant is entitled to get back the claim amount no doubt from the op.

          Thus the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against each op and each op shall have to pay the said cost of Rs.5,000/- each separately to the complainant.

          Op no.1 is hereby directed to pay and release Rs.31,819/- i.e. medical expenses for which the claim was submitted by the complainant to the op and also compensation of Rs.7,000/- for causing harassment, mental pain and agony to the complainant.  So, op no.1 shall have to pay Rs.31,819/- (Mediclaim Amount) + litigation cost of Rs.5,000/- + Rs.7,000/- as compensation i.e. total Rs.43,819/- within one month from the date of this order failing which for disobeyance of the Forum’s order and for non-compliance of the Forum’s order for each day’s delay op no.1 shall have to pay punitive damages @ Rs.200/- per day till full satisfaction of the decree.

          Op no.2 is hereby directed to pay litigation cost of Rs.5,000/- separately to the complainant within one month from the date of this order failing which for non-compliance of the Forum’s order op no.2 shall be imposed punitive damages to the extent of another Rs.5,000/- which shall be paid to this Forum by op no.2.

          If ops fail to comply the order within the stipulated period in that case penal action shall be started against them even warrant shall be issued for implementation of this order and in that case penalty of Rs.10,000/- may be imposed upon each of the ops as per provision of Section 27 of C.P. Act 1986.