DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No  92 of 2015

Date of filing:  31.3.2015                                                                                 Date of disposal: 20.01.2016

Complainant:               Mr. Sourav Ghosh, S/o. Late Ashim Kumar Ghosh, resident of Puspalaya, S.P.Mukherjee Road, Murgasole, PO: Asansol, PS: Asansol (S), District: Burdwan, PIN – 713 303.

-V E R S U S-

Opposite Party:    1.    National Insurance Co. Ltd., having its Branch Office at Durga Market, 46, G.T.Road, PO: Asansol, PS: Asansol (S), District: Burdwan, represented by its Branch Manager.

2.    National Insurance Co. Ltd., having its Registered Office at 3, Middleton Street, Post Box No. 9229, Kolkata, PIN – 700 071, represented by its Chairman.

3.    Medsave Healthcare (TPA) Ltd., having its office at F-701 A, Lado Sarani, behind Golf Course, New Delhi, PIN – 110 030, represented by its Proprietor.

Present:        Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                      Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party No. 1&2:  Ld. Advocate, Ahi Bhushan De.

Appeared for the Opposite Party No. 3:      None.

J U D G E M E N T

            This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the ops as the ops did not pay his legitimate insurance claim arbitrarily and illegally, not only that repudiated the claim.

         The brief fact of the case of the complainant is that he was insured under hospitalization benefit policy for individual mediclaim issued by the National Insurance Company Ltd. through the op-1 for the period from 16.4.2012 to 15.4.2013.  The sum assured amount of the said policy was 2, 00,000=00 and the total premium amount was 2,912=00.   The policy was renewed time to time i.e. for the period from 16.4.2013 to 15.4.2014 and 15.4.2014 to 14.4.2015.  During the period of 16.4.2013 to 15.4.2014, the total premium amount was 3,488=00, but the sum assured was same.  During third renewal i.e. for the period from 16.4.2014 to 15.4.2015, the sum assured was extended from Rs.2, 00, 000=00 to Rs.2, 50,000=00 and the premium amount was also enhanced to Rs.4, 848=00.  The op-1 received the same premium amount from the complainant on 11.4.2014 and issued premium certificate in favour of the complainant.  Suddenly the complainant became seriously ill and suffered from certain chest pain in the second week of December, 2014.  The complainant went to the Mission Hospital, Durgapur for treatment on 19.12.2014 wherein the doctor of the said hospital after examining him prescribed certain medical tests.  After completion of the entire test and after perusal of the said test report on 19.12.2014 the doctor detected that TMT is positive for inducible ischemia and so he was advised to get admission at the Mission Hospital, Durgapur for medical treatment.   There after the complainant without making any delay went to the Apollo Gleneagles Hospital, Kolkata for better treatment on 21.12.2014 and got admission under the doctor namely Dr. Prakash Ch. Mondal, who  evaluated him clinically as well as with the relevant investigation.  Coronary Angiogram was done on 22.12.2014 which revealed Triple Vessel Coronary Artery disease and advised him to follow up with the doctor for revascularization (CABG) at the earliest after HBA-1c report and the patient got discharge accordingly on 23.12.2014 while certain medicine was prescribed by the doctor.  It has been categorically stated in the medical report that Coronary Artery Bypass Surgery is very much required for the complainant as early as possible.  The complainant went to the National Heart Institute, New Delhi on 29.12.2014 wherein he was treated by Dr. S. Mukherjee.  Thereafter he was also treated by Dr. Naresh Trehan on 05.01.2015 only for better treatment and to be cured by medicines because the complainant along with his family members were inclined to avoid operation as prescribed by Apollo Gleneagles Hospital.   Not only the complainant also went to an Ayurvedic Cardiac Hospital, Maharastra on 08.01.2015 and got admission therein for proper treatment.  But the chest pain of the complainant had not been cured through medicines and the doctors were opined that for getting relief CABG surgery was very much required for the complainant.  For this reason the complainant was again admitted at Apollo Gleneagles Hospital under the care of doctor Sushan Mukhopadhyay for CABG and the total package of the said operation was Rs.1, 80,000=00.  The doctor was told by him that he was under the coverage of mediclaim policy and enjoyed cashless facility in respect of the said policy.   Upon hearing the Apollo Gleneagles Hospital had arranged for claim of cashless against the mediclaim policy before the ops intimating about the operation of CABG of the insured on 11.02.2015 and requested them to do the needful as early as possible because the said operation was very urgent to save the life of the complainant.  Be it mentioned that the Apollo Gleneagles Hospital intimated the said fact to the ops through e-mail stating that the total cost of the surgery for Rs.1, 80,000=00.   The ops received the said intimation through e-mail on 11.02.2015 regarding the prayer of cashless facility for CABG of the insured.  But very surprisingly the op -3 repudiated the claim of the complainant stating ‘The cashless hospitalization request has been denial due to cashless denied as chronic nature/pre-existing nature of illness cannot rule out.’    The grounds of repudiation due to pre-existing disease as taken by the ops is completely vague, arbitrary based on assumption or presumption and also beyond the provisions of law, which clearly indicates the deficiency in service as well as unfair trade practice on the part of the ops.    Thereafter, being aggrieved and dissatisfied with the service of the ops has given consent to Dr. Sushan Mukhopadhyay at Apollo Gleneagles Hospital for operation and accordingly the operation done on 13.02.2015 and he got discharge on 18.02.2015.  It is to be noted that though package of cost for operation was of Rs.1, 80,000=00 as the ops have repudiated the claim of the complainant in respect of cashless benefit, the Apollo Gleneagles Hospital subsided Rs.20, 000=00 and requested the complainant for making payment of Rs.1, 60,000=00 for the surgery of CABG and accordingly he paid the entire amount to the Apollo Gleneagles Hospital from his own pocket.  After getting discharge on 18.12.2015 the complainant is now completely bed rest due to major operation.  So, the complainant requested the op over phone to reconsider his claim, but till filing of this complaint neither a single response from the ops nor any appropriate steps were taken by them, which clearly indicates deficiency in service and unfair trade practice on behalf of the ops.  So, having no other alternative to get relief the complainant being compelled had filed this complaint before this Ld. Forum praying for direction upon the ops for making payment of Rs.1, 60,000=00 as incurred by him towards medical expenses for the operation of CABG, Rs.1, 50,000=00 as compensation due to mental pain, agony and harassment and litigation cost of Rs.25, 000=00.

The petition of complaint has been contested by op-1 by filing written version contending that admittedly the complainant obtained hospitalization benefit policies covering himself from it and during the period from 16.4.2012 to 15.4.2013 and 16.4.2013 to 15.4.2014 the policy sum assured were for Rs.2,00,000=00 and during the period from 16.4.2014 to 15.4.2015 the sum assured was of Rs.2,50,000=00 and it is found that the policy was first incepted on and from 16.4.2012  and continued up to 15.4.2015.   The complainant got admission at Apollo Gleneagles Hospital on 21.12.2014 and discharged there from on 23.12.2014.  It appears from the discharge summary of the complainant  issued by the Apollo Gleneagles Hospital revealed  that final diagnosis were (i) Acute Coronary syndrome-unstable angina, (ii)  Severe Triple Vessel Coronary Artery Disease—Coronary Angiogram were done on 22.12.2014 and (iii) Systemic Hypertension.  The complainant was again admitted at the Apollo Gleneagles Hospital on 11.02.2015 and got discharged on 18.02.2015.  According to the discharge summary final diagnosis were made as following-

1. Ischemic heart disease with Effort angina.
2. Severe Triple Vessel Coronary Artery disease.
3. Hypertension.   

Be it mentioned that as per exclusion clause No.4 of the mediclaim policy, the company shall not be liable to make any payment under the policy in respect of any expenses incurred in connection with or in respect of clause No.4.1 pre-existing diseases, all pre-existing diseases when the covered incepts for the first time until 48 months of continuous coverage has elapsed.   Any complication arising from pre-existing ailment/disease /injuries will be considered as a part of the pre-existing health condition or disease.  To illustrate if a person is suffering from either hypertension or diabetes or both at the time of taking the policy, then the policy shall be subject to the following exclusion-

It is mentioned that the cashless hospitalization was denied as chronic nature/pre-existing nature cannot be ruled out.  The present case falls under the aforesaid exclusion clause No.4.1 pre-existing disease of the aforesaid National Insurance mediclaim Policy.  The cashless hospitalization benefit was denied to him as the disease was chronic in nature/ pre-existing.  The O.P. No.3 has been authorized to offer service for the mediclaim policy issued by the O.P. No.1 to the complainant regarding denial of cashless facility for the treatment of the insured.  The O.P. No.3 had duly informed to the Apollo Gleneagles Hospital by issuing a letter dated 11.02.2015 that the liability of the Insurance Company under the policy is not determinable regarding the history of the insured as the disease of the insured was chronic in nature/pre-existing disease.  Hence, cashless facility cannot be extended in this case. It was further informed by the letter dated 11.02.2015 issued by TPA to the Apollo Gleneagles Hospital that the hospital is requested to collect the expenses from the insured and the insured person subsequently may submit the hospitalization paper for reimbursement and the claim will be settled after investigation, if found admissible as per the policy terms and conditions. Be it mentioned that the insured did not submit any documents in support of his claim to the OP-1. Be it further mentioned that the said insurance policy is subject to various exclusions including exclusion for pre-existing diseases, as defined in the terms and conditions of the policy and thus under the aforesaid facts and circumstances nothing is payable to the insured and the instant complaint filed by the complainant is liable to be summarily dismissed. It is further submitted by the op-1 that the alleged claim is untenable misconceived and vexatious one. The allegations of deficiency in service and unfair trade practice against this op as made out by the complainant are wholly misconceived, groundless, false and untenable in law. As the complainant has miserably failed to establish deficiency in service on behalf of this op prayer has been made by the op-1 for dismissal of the complaint with cost.

            The petition of complaint has been contested by the op-2 by filing written version by stating same and identical rebuttal as mentioned in the written version of the op-1.

            This case has been taken for hearing ex parte against the op-3 as the op-3 inspite of receipt of notice through this ld. Forum did not turn up to contest the complaint either orally or by filing any written version.

            The complainant has filed evidence on affidavit; the op-2 has filed written notes of argument. Both parties have filed several papers and documents in support of their respective contentions. Both parties have also relied on some Rulings. We have carefully perused the entire record, papers and documents, Rulings and heard argument as advanced by the ld. Counsel for the complainant and the op-1&2 at length. It is seen by us that there are some admitted facts in the case in hand that are the complainant was insured under hospitalization benefit policy for individual mediclaim issued by the National Insurance Company Ltd. through the op-1 for the period from 16.4.2012 to 15.4.2013, the said policy was renewed without any gap for the period from 16.4.2013 to 15.4.2014 and from 16.4.2014 to 15.4.2015, for the year of 2012-13 & 2013-14 the sum assured amount of the said policy was 2,00,000=00 respectively and for the policy period of 2014-15 sum assured amount was for Rs. 2,50,000=00, due premium has been paid to the op-1, premium receipt has been issued in favour of the complainant, during validity of the insurance policy the complainant became seriously ill and suffered from chest pain in the 2^nd week of December 2014, he went to the Mission Hospital, Durgapur for treatment on 19.12.2014, the doctor after examining him prescribed certain medical tests, upon perusal of the test report doctor detected that TMT is positive for inducible ischemia, as per advice of the doctor he got admission at the Mission Hospital for medical treatment, thereafter he went to Apollo Gleneagles Hospital for better treatment on 21.12.2014, got admission under Dr. Prakash Ch. Mondal, he was evaluated by the doctor clinically as well as some investigations, coronary angiogram was done on 22.12.2014, the said test revealed triple vessel coronary disease, he was advised to follow up with doctor Prakash Ch. Mondal for CABG at the earliest after HBA1c report, the insured discharged on 23.12.2014, during discharged he was prescribed certain medicines, he was told that surgery of CABG became urgent and the same was required to be done as early as possible, thereafter the complainant went to National Heart Institute, New Delhi wherein he was treated under Dr. S. Mukherjee on 29.12.2014, later he was treated under Dr. Naresh Trehan on 05.01.2015, the complainant and his family members were inclined to be cured only by medicines and tried to avoid any operation as prescribed by Apollo Gleneagles Hospital, thereafter he also went to the Sanecare Madhavbaug Ayurvedic Cardiac Hospital, Mumbai-Pune, Maharashtra on 08.01.2015, his chest pain did not subside and cured through medicines, the complainant again got admission at Apollo Gleneagles Hospital under Dr. Sushan Mukhopadhyay, CABG operation done, the said operation incurred expenditure to the tune of Rs. 1,80,000=00, though the complainant was covered under mediclaim policy along with cashless facility, but as the ops did not allow the prayer for cashless treatment in respect of the policy the Apollo Gleneagles Hospital deducted Rs. 20,000=00 out of humanitarian ground from the total expenditure and ultimately received Rs. 1,60,000=00 from the complainant towards the medical treatment, after getting discharge the complainant lodged the insurance claim before the Insurance Company along with treatment related papers and documents, the ops received the same and acknowledged, the Insurance Company has  repudiated the claim of the complainant. The allegation of the complainant is that the Insurance Company has repudiated his legitimate insurance claim arbitrarily and illegally and such action of the ops can be termed as deficiency in service as well as unfair trade practice. The case of the op-1&2 is that there is no deficiency in service as well as unfair trade practice on their behalf because as per exclusion clause no. 4 of the concerned policy along with the terms and conditions of the same the claim of the insured had been duly repudiated and the same also intimated to the insured by issuing repudiation letter. It is further mentioned that the cashless hospitalization request has been denied due to chronic nature/pre-existing nature of illness cannot rules out. It is state by the ld. Counsel for the op-2&3 that as it is clearly mentioned in the policy condition under the heading pre-existing diseases (4.1) and the complainant had opted the said clause by putting his signature, now neither the ops nor the complainant can travel beyond the said clause. As the said clause is binding upon the both parties, the ops have repudiated the claim of the complainant in view of the said clause; therefore, the conduct of the Insurance Company cannot be termed as deficient in nature.

            We have carefully perused the clause no. 4.1 wherein it is sated that ‘All pre-existing diseases when the cover incepts for the first time until 48 months of continuous coverage have elapsed. Any complication arising from pre-existing ailment/disease/injuries will be considered as a part of the pre-existing health condition or disease. To illustrate if a person is suffering from either hypertension or diabetes or both at the time of taking the policy, then policy shall be subject to following exclusions.

            In respect to the above-mentioned clause the ld. Counsel for the complainant has submitted that the Insurance Company cannot incorporate any clause in the policy condition going beyond the Insurance Act, 1938 and in this connection the complainant has mentioned the Section 45 of the Insurance Act, 1938. We have perused the said Section wherein it is stated -

45. Policy not to be called in question on ground of misstatement after three years. – (1) No policy of life insurance shall be called in question on any ground whatsoever after the expiry of three years from the date of the policy, i.e., from the date of issuance of the policy or date of commencement of risk or the date of revival of the policy or the date of the rider to the policy, whichever is later.

(2) A policy of life insurance may be called in question at  any time within three years from the date of issuance of the policy or date of commencement of risk or the date of revival of the policy or the date of the rider to the policy, whichever is later, on the ground of fraud:

Provided that the insurer shall have to communicate in writing to the insured or the legal representatives or nominees or assignees of the insured the grounds and materials on which such decision is based.

Explanation I.-  For the purposes of this sub-section, the expression “fraud” means any of the following acts committed by the insured or by his agent, with intent to deceive the insurer or to induce the insurer to issue a life insurance policy:-

1.  the suggestion, as a fact of that which is not true and which the insured does not believe to be true;
2. the active concealment of a fact by the insured having knowledge or belief of the fact;
3. any other act fitted to deceive; ………………………………

Be it mentioned that the Section 45 has been amended with effect from 26.12.2014. The ld. Counsel for the ops has submitted that the Section 45 does not applicable in the case in hand because the said Section can only be implemented in the case of life insurance policy not relating to the mediclaim policy. In this respect the ld. Counsel for the complainant has relied on landmark judgment of Hon’ble Supreme Court passed in Asha Goel case. From where it is evident that Their Lordships have relied on Section 45 of the Insurance Act, 1938 in case of mediclaim policy as the said case was related to the mediclaim policy. Therefore we have no confusion at all implementing Section 45 of the Insurance Act., 1938 in the case in hand. According to the complainant the relied clause i.e. 4.1 of the policy can be termed as illegal and arbitrary because no provision has been mentioned in the Section 45 for 48 months. We have also seen that Section 45 limits within the period of only three years, not four years. Thereafter the ld. Counsel for the ops has submitted that in respect of the following diseases and treatment related to the following diseases as mentioned in the 4.1 clause time limit is only 48 months from the date of inception of the policy. It is further argued by the ld. Counsel for the ops that apart from the said diseases as mentioned in the said clause in every case time limit is 36 months in view of the Section 45 of the Insurance Act. Therefore no violation of the Section 45 has been made by the policy maker at the time of incorporation of the said clause in the policy condition and according to the ops the submission as made by the complainant has no basis at all. We have further carefully peruse the said clause and it is seen by us that there is mentioning two words i.e. ‘pre existing diseases’ and inception ‘cover incepts’ means in our view when the policy started/proposal form has been accepted/policy issued by the ops and pre-existing disease means the diseases/ailments from which the intending insured was suffering from before inception of the policy/before putting signature in the proposal form etc. Therefore the ops are under obligation to prove by adducing cogent documentary evidence that the insured was suffering from pre-existing disease/ailment as mentioned in the said clause. Entire medical record and treatment documents have been filed by the parties. We have carefully perused the entire treatment records and it is seen by us that admittedly coronary angiogram bypass grafting was done by the surgeon of Apollo Gleneagles Hospital. From the discharge summary of the said hospital wherein he was operated upon dated 18.02.2015 it is evident that it was finally diagnosed as Ischemic Heart Disease with unstable angima severe triple vessel coronary artery disease and hypertension. It was further mentioned in the said discharge summary that reason for admission/chief complaint of the complainant was feeling discomfort in his chest on exertion for last three months. Within the forecorners of the said summary nowhere it is written by the treating surgeon that the patient had a past history of the diseases as mentioned in the 4.1 clause of the policy concerned. Nowhere is it written that the patient was suffering from either hypertension or diabetes or both before taking out the questioned policy. Therefore, under this circumstances pre-existing diseases as mentioned by the ops cannot stand at all because the ops have miserably failed to prove by adducing cogent documentary evidence that he was suffering from the mentioned ailments/diseases prior to taking the policy. In respect of pre-existing diseases and suppression of material facts  along with the exclusion clause as per the policy the ops have relied on the judgment passed by the Hon’ble NCDRC reported in Vol-I (2015) CPJ (523) NC. We have carefully perused the said judgment but according to us the fact of the said case is not at all same and identical with the case in hand. Because in the said case it was proved that the insured was suffering from pre-existing disease by documentary evidence. The ops have also relied on the judgment passed by the Hon’ble NCDRC reported in Vol_-II (2015) CPJ (654) NC and upon careful perusal of the said judgment we are of the same view that the fact of the cited case is not same with the case in hand as in the said case the insured underwent CABG 15 years before taking out the policy and the same fact was concealed by him in the proposal form. The ops have also relied on another judgment passed by the Hon’ble NCDRC reported in Vol-III (2012) CPJ (265) NC. The said Ruling cannot be implemented in the case in hand due to different facts. The ld. Counsel for the complainant has relied on the judgment passed by the Hon’ble NCDRC reported in 2009 (3) CPR (NC) 13. We have carefully perused the said judgment and in our view the said Ruling is partly applicable in the case in hand because in the said case the ailment from which the insured was suffering from was not within his knowledge and in view of the Insurance Act the complaint of the complainant was allowed because as the disease was not within his knowledge, suppression of material fact/fraudulently suppressed does not arise at all.

Admittedly the ops have illegally repudiated the claim of the complainant for which he had to suffer mental agony, harassment, as well as, pecuniary loss. Therefore such repudiation can easily be termed as deficiency in service on behalf of the ops. For this reason the complainant is entitled to get some amount towards compensation. Further it be mentioned that for getting redressal of his grievance the complainant has approached before this ld. Forum by filing this complaint and has incurred some expenditure for this litigation and for this reason he is also entitled to get some litigation cost from these ops.

Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is allowed on contest against the Opposite Party No. 1& 2 with cost and dismissed ex parte against the Opposite Party No. 3 without any cost. The Opposite Party No. 1&2 are hereby directed to pay Rs. 1,60,000=00 to the complainant towards medical expenses as incurred for his treatment within 45 days from the date of passing of this final order/judgment, in default, it will carry penal interest @8% per annum for the default period. The Opposite Party No. 1&2 are also directed to pay Rs. 4,000=00 as compensation due to unnecessary harassment and mental agony and Rs. 1,000=00 as litigation cost to the complainant within 45 days from the date of passing of this final order/judgment, in default, the complainant will be at liberty to put the entire decree in execution as per provisions of law.

            Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)                                                     

                             Member                                                                   

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                           Member                                              Member    

                                                     DCDRF, Burdwan                             DCDRF, Burdwan