HON'BlE MR. ASHIS KUMAR BASU, MEMBER

Order No. 08

Date 28.08.2019

The record is put up today for order.

The appeal is heard in earlier date of hearing in presence of both sides

The instant appeal is directed towards the impugned order dated 06.04.2018 passed by the Hon’ble District Consumer Dispute Redressal Forum ( DCDRF ), Burdwan in Case No.  CC/163/2016.

 The dispute in the present case arises out of a complaint filled by the appellant-complainant of a deficiency of service and unfair trade practice on the part of respondent-opposite parties in relation to repudiation of Medi-claim of complainant insured  under National Insurance Co. Ltd.

 In filing appeal, it is alleged that the impugned order passed by Ld. DCDRF, Burdwan was in -correct in appreciation of evidence and made a wrong conclusion.

The appellant aggrieved as the Ld. District Forum did not appreciate the allegation mentioned in the complaint which is adjudicable  under Consumer Protection Act, 1986.

The appellant also aggrieved as the Ld. Forum below did not realise that the insured policy was an old one and it had been renewed every year.  The said policy  had been renewed since 2008 to till date, hence question of two years waiting period did not arise.

The contention  of appellant is that the Ld. DCDRF, Burdwan fails to realise that inclusion of complainant’s wife in the said policy does not mean to be a new policy, on the contrary it is a continuation of the old one which has been renewed every year.  So the  mediclaim submitted by the appellant satisfied the  terms of the exclusion clause no. 4.3 of the policy .   Complainant  has  submitted all the required documents to the respondents-opposite parties so that the  claim can be settled .

The appellant argued that the ld. Forum below failed to notice that there is unfair trade practice and deficiency in service on the part of the respondent-opposite parties resulting a lot of mental pain, agony and harassment. Therefore, the judgement passed by the Ld. DCDRF, Burdwan in C.C. No. 163 of 2016 was bad in law and should be set aside and/or quashed. 

 The complainant appellant prayed for set aside of the impugned judgement passed by the ld. District Forum on 06.04.2018 and to pass the order directing the respondents to pay Rs.100000.00 ( one lakh only ) towards the sum insured in the policy along with  Rs. 100000/- for mental pain, agony and harassment and Rs. 25000/- as the litigation cost.

The facts in brief are that Mr. Sanjay Day, S/O Sri Sukhendu Bikash Dey,  appellant  complainant purchased a mediclaim policy ( hereinafter referred as policy ) bearing no.154101/48/08/8500000442 for the period commencing from 05.08.2008 to 04.08.2009 issued by National Insurance Company Ltd. through OP No.1.The sum assured was  Rs. 100000/- and the corresponding premium  Rs.1547/- had been paid by the appellant. Subsequently, appellant complainant got married and his wife, Mrs. Sudeshna Basu Dey had been insured bearing  policy  no 154101/48/13/8500000528 having sum assured Rs. 100000/- for the period from 05.08.2013 to 04.08.2014. Appellant submitted the photocopy of policy schedule issued by National Insurance Co. Ltd., running page no. 36, where  Sanjay Dey , appellant and Sudeshna Basu Dey  had been mentioned as the name of the insured persons and Rs. 1377/-is the premium for the wife of the appellant. It is also mentioned that inclusion of wife from 05.08.2013. Lastly the said  policy in the name of appellant and his wife was renewed on 05.08.2015.

In the mean time  Mrs. Sudeshna Basu Dey, wife of appellant  became seriously ill due to abdominal pain and visited Dr. B.N.Sarkar at Burdwan on 04.07.2014 for treatment. After some clinical and pathological test, Dr. Sarkar diagnosed chocolate cyst and advised her for operation. Appellant informed the matter to O.P. No. 1 through letter dated 18.11.2014. Thereafter, appellant’s wife admitted at RSV Hospital Pvt.under Dr. N.N. Ghosh who conducted the operation of Endrometro Cyst : Laparoscopy puncture in left side of chocolate cyst of overy  and ultimately she was discharged  from hospital on 22.11.2014. Appellant has incurred all the expenses of his wife’s medical treatment to the tune of Rs.104595/-

Appellant submitted medical claim along with all required documents to respondent O.Ps on 23.03.2015. But OP No.1,  through letter dated 21.05.2015 informed appellant that the medi-claim of his wife had been repudiated as company was not liable to pay the claim  as per terms of the policy  under Exclusion clause no. 4.3 where diseases / or treatment for specific waiting period , surgery of Genitourinery system exclusion malignancy subject to two years waiting period.

Appellant  complainant  lodged a complaint before Ld. DCDRC , Burdwan  against respondent-OPs for repudiation of his mediclaim.  Ld. District Forum observed that though the complainant continued his policy along with his wife and renewed the same on 05.08.2015, but  he insured his wife’s mediclaim   policy on and from 5.8.2013 having sum assured for Rs. 100000/- which was a new policy, hence it was a new contract with OPs.  Mrs. Sudeshna Basu Dey had undergone the endrometro cysts operation 19.11.2014 i.e within two years of waiting period in terms of exclusion clause 4.3 of Mediclaim policy. So repudiation of mediclaim is justified. There is no deficiency in service and unfair trade practice on the part of OPs. Ld. Dristrict Forum passed the judgment on 06.04.2018 by  dismissing the case on contest against O.P.No. 1 and 2 and exparte against the  O.P. No.3.

 In filing brief notes of arguments, respondent OP No.1 and 2  contended that  appellant complainant purchased  the mediclaim policy for sum assured Rs. 100000/- bearing no. 154101/48/13/8500000528 for each of him and his wife for the period 05/08/2013 to 04/08/2014. Respondents filed  the photocopy of certificate of Individual Mediclaim, page no. 36, issued by National Insurance Co, Ltd. in favour of Sanjay Dey, the appellant.  Name of insured persons are Sanjay Dey and his wife Sudeshna Basu Dey. The appellant submitted all the documents regarding treatment of his wife required for the claim. After examining the said documents TPA observed that the claim was not admissible as  date of policy inception was 05.08.2013 i.e.  second year policy. The claim is denied by the TPA/Medi Assist. India Pvt. Ltd. as per exclusion clause 4.3 of the policy.  Respondent OPs cited the judgement delivered by Ld. NCDRC in case of New India Assurance Co. Ltd  Vs Dr. Girish M. Wagher [2017 (l) CPR 526 NC ]  that mediclaim can be allowed only in terms of Insurance contract. In this connection respondents also address the decision in  National Insurance Co. Ltd.  –Vs- Premjibhai Laxmanbhai Motka (2011(1)CPR 8 (NC) that Consumer Fora cannot grant any relief beyond terms of the Insurance Policy.  Therefore the instant appeal is liable to be dismissed.

 If we relook into the matter and make an in-depth study, we find there is no dispute over facts and figures  in the instant case. The respondents/ OPs denied the  mediclaim of the appellant’s wife only on the ground that she had undergone an endrometro cysts operation on 19.11.2014, within two years of waiting period in terms of  the Exclusion Clause 4.3 under policy. Now it is very much pertinent to have a look into the  Exclusion Clause 4.3 of the policy which is legally binding for both the parties.  Respondents filed  photocopy of Mediclaim Insurance policy ( Individual ) where exclusion clause no. 4.3 had been illustrated as under ( page no. 153 ) : 

…”…… Treatment of diseases  such as Contract,…. Hysterectomy, Polycystic ovarian disease, …..Surgery of Genito-urinary system excluding malignancy…. unless arising from accident... are not payable for first two years of operation of the policy.”

 Now the cardinal point is from which date  the” first two years of operation of the policy” shall be considered.  It is true that appellant purchased mediclaim policy in his name through OP No.1 for the period from 05.8.2008 to 04.8.2009  for sum assured Rs.100000/- and paid corresponding premium Rs. 1547/-  and continued it accordingly.  Later on he got married and incorporated  his wife’s name in  his  policy  with sum assured further Rs. 100000/- in favour of his wife for the period 05.08.2013 to 04/08/2014 and renewed the same on 05.08.2015.  Appellant’s submission is  that the two years waiting period as per clause no. 4.3 should be considered from 05.08.2008, the commencement of the previous policy as it has been continuing and  renewed on 05.08.2015.  Appellant submitted  photocopy of  certificate of mediclaim  policy , page 36,  where names of the insured person are  Sanjoy Dey and Sudeshna Basu Dey and “ inclusion of wife from 05.08.2013” has been mentioned. It is also mentioned that two years waiting period  in terms of  Exclusion 4.3 of policy shall apply “ as if  it is  a new policy”. It is quite evident that after incorporation  appellant’s wife’s name  in the policy  the appellant entered upon a new contract on 05.08.2013 with the respondent as his wife is a separate person having a separate  entity resulting change of previous policy no. as well as the  amount of premium to be paid.  Appellant  also admits in filing claim form for his wife’s operation that the year 2013 is the ‘ Date of commencement of first insurance for the person.’  It is an hard to accept the argument that two years waiting period would be considered from 05.08.2008 when  the name of appellant’s wife had been incorporated on and from 05.08.2013 . The terms in exclusion clause no.4.3 mentioned in the policy are very clear in this score. The policy cannot be dated back to 05.08.2008

 Going through all pros and cons of the instant case , we are of the opinion that the appellant is not entitled to get the mediclaim  as his wife has undergone Endrometro cyst operation within second year running of the policy which is within the purview of exclusion clause 4.3 of the policy. Hence, there is no deficiency in service or unfair trade practice on the part of respondents opposition parties. Ld. DCDRF, Burdwan is quite logical by dismissing  the case on contest against the respondents. Therefore, we incline not to intervene the judgement/order passed by the Ld. District Forum, Burdwan, in case no CC/163/2016 dated 06.04.2018 and therefore the said judgement has been affirmed.

                                                              Ordered

 The  instant appeal be and the same is dismissed on contest.

The impugned order passed by the Ld. D.C.D.R.F. Burdwan in CC Case No. CC/163/2016 dated 06.04.2018 is upheld.

We make no order as to cost.

Let a copy of the judgement be supplied to the parties free of cost.