Consumer Complaint No.34 of 2015
Date of filing: 03.02.2015 Date of disposal: 30.8.2016
Complainant: Ram Chandra Kundu, S/o. Late Krishna Chandra Kundu, resident of Subhas Pally, Raj College, North Side, District: Burdwan.
-V E R S U S-
Opposite Party: 1. The National Insurance Co. Ltd., represented through its Divisional Manager, having its office at 548, G. T. Road, Bhangakuthi, Burdwan, PIN – 713 101.
2. The Medi Assist India Pvt. Ltd., represented through its Manager, having its office at 53/A, Rafi Ahmed Kidwai Road, Kolkata – 700 010.
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, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Ahi Bhushan De.
Appeared for the Opposite Party No. 2: None.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have arbitrarily and illegally closed his legitimate insurance claim on false pretext.
The brief fact of the case of the Complainant is that that being an employee of Burdwan University he obtained a group medi-claim insurance policy from the OP-1 in the year 2000 to 2001 by covering the risk of himself, his wife and his son for treatment and hospitalization expenditure. At that point of time the risk of the policy was covered up to Rs.1, 00,000=00 for the year 2012-13. The policy number is 154100/48/11/85000033454 and the liability of the Insurance Company for each person was for Rs.2, 00,000=00. During continuation of the policy the Complainant got admission at Burdwan Medical College & Hospital (BMCH) on 05.12.2012 due to his chest pain and for this reason he had to undergone treatment therein up to 10.12.2012. During the course of treatment a machine was inserted in his chest through an operation. After completion of treatment he got release on 10.12.2012 from BMCH. After getting release he intimated the OP-1 about his treatment and lodged a claim for indemnification. His claim was registered as claim number- 2590679. According to the direction of the OP-1 on 21.01.2013 the Complainant furnished some statements before the OP-1 showing that due to medical treatment he had to incur a sum of Rs. 90,023.80. The Complainant submitted several documents i.e. the discharge certificate, certificate dated 17.06.13 issued by the Super Speciality Hospital, BMCH, certificate issued by Dr. Biswarup Mukherjee, outdoor ticket dated 07.01.2013, report of Coronary Angiography of BMCH, report of Electro Therapy Department, and etc was submitted before the OP-1 for settlement of his claim. The OP-2 during their investigation put some questionnaire to the Complainant and the Complainant by issuing letter dated 13.02.2013 provided all clarifications regarding the questions. The OP-2 by issuing a letter dated 20.04.2013 intimated the Complainant that the claim has been closed due to want of documents as mentioned in the point numbers 1 & 2 and asked the Complainant that the file will be reopened on submission of the required documents. The Complainant over phone intimated the OP-2 entire clarifications and the OP-2 assured him for early settlement of his claim. On several occasions the Complainant asked the OPs for settlement of the claim but they did not pay any heed to such request. On 29.10.2013, 26.11.2013 and 26.03.2014 the Complainant wrote letters to the OP-2. On 13.12.2013 the OP-2 asked for a document which was previously submitted to them. On 04.04.2014 a reminder was also given to the OP-2. As the Complainant did not get any reply from the OPs he on 05.05.2014 made an application before the General Secretary, Burdwan District Consumer Protection Centre. The General Secretary of the said Center issued two letters to the OP-1 on 21.05.2014 & 29.07.2014, but the OP-1 did not bother to reply the same. The Complainant being a bonafide customer of the OPs never committed any act detrimental to the interest of the OPs. On the other hand, the OPs for the first time dragged the matter by asking him for submitting documents one after another but they have kept themselves silent over the settlement matter. According to the Complainant such action of the OPs can be termed as deficiency in service as well as unfair trade practice. As his grievance have not been redressed by the OPs before coming to this Ld. Forum and having no alternative he has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to pay him a sum of Rs. 90,023.80 towards the medical expenditure as incurred by him for his treatment as per policy condition, Rs. 25,000=00 as compensation for mental pain and agony suffered by him and litigation cost of Rs. 25,000=00. The Complainant has also sought for an interest @12% per annum over the expenditure amount from 10.12.2012 till realization.
The petition of complaint has been contested by the OP-1 by filing written version contending that this OP issued a National Swasthya Bima Policy for the period from 31.03.2012 to 30.03.2013 under medi-claim scheme for the benefits of the insured and his beneficiaries. The insurance under the said policy is subject to the conditions, clauses, warranties and endorsements. As per policy condition reimbursement shall be paid for hospitalization expenses on medical ground/surgical treatment at any Nursing Home and Hospital in India as an in-patient as defined in the said policy. The OP-2 being the TPA is authorized to offer their services for the said medi-claim policy issued to the insured and his beneficiaries. The OP-2 is an IRDA licensed TPA of health insurance policies. For the purpose of claim settlement, the bills and other related documents should be directly sent to any of the opted centre of the OP-2 and in this particular case the opted center is the address as given in the cause title of the complaint in respect of the OP-2. In the instant case the Complainant being an insured lodged a claim form/claim papers with the OP-2 along with some documents and papers regarding his alleged treatment of illness at BMCH, Burdwan for getting reimbursement towards the medical expenditure as incurred by him for his treatment under the said medi-claim policy obtained from it. The policy holder submitted claim papers regarding his admission and treatment at BMCH, Burdwan for the period from 05.12.2012 to 10.12.2102 from where it is evident that the ailment was diagnosed as I.W.M.I. (Interior Wall Myocardial Infarction). The Complainant was suffering from the said disease and got discharge on 10.12.2012 from the BMCH, Burdwan. The OP-2 received the claim papers as submitted by the Complainant and scrutinized the same. The OP-2 found that some documents still not provided to it for processing the claim i.e. (1) kindly provide the H/A Hypertension, Diabetes, Heart Disease (since when) certified by treating doctor, (the self declaration letter submitted will not be sufficient, the treating doctor’s declaration is required). (2) Kindly provide the current year policy copy along with past policy copies showing inception of policies.
As the Complainant did not provide those documents as sought for by the OP-2, the OP-2 had closed the claim due to insufficient documents. The OP-2 informed the Complainant by issuing letter dated 20.04.2013 that they are unable to reopen the claim of the insured. It was further informed in the said letter by the OP-2 that if he will be able to submit the required documents then they will be able to submit the file to the OP-1 for reopening the claim file of the Complainant. The OP-2 had further informed the insured by issuing letter dated 13.12.2013 that the following document still not provided to them for processing of the claim i.e. since when the patient is suffering from Hypertension, Diabetes and Heart Disease as certified by the treating doctor. In the said letter it was mentioned by the OP-2 that due to non-providing of the aforesaid documents the claim of the Complainant has been closed. Though the certificate dated 21.01.2014 of Dr. Biswarup Mukherjee, Consultant Cardiologist was submitted but in the said certificate it was not disclosed since when the insured was suffering from Hypertension, Diabetes and Heart Disease. During processing of the claim it was noticed by the OP-2 that the said information had not been provided as sought for by the OP-2 in the alleged certificate. Be it mentioned that it is very essential to know the duration of the ailment of the insured. Though the OP-2 had duly informed the matter to the Complainant, the Complainant did not extend his co-operation inspite of repeated reminders and for this reason the claim has been kept as unprocessed and closed. If the Complainant will file the required document, then the OP-1 may settle the claim on merit, if admissible as per terms and conditions of the insurance policy. It is further mentioned by the OP-1 that this OP is not liable to pay any compensation to the Complainant beyond the terms, conditions, definitions and exclusions of the policy issued by it. Therefore as there is no deficiency in service as well as unfair trade practice on behalf of this OP the Complainant is not entitled to get any relief as sought for. The alleged claim of the Complainant is untenable, misconceived and vexatious one. So the complaint itself is frivolous one and the same should be dismissed with cost of Rs.10,000=00 in view of the Section 26 of the Consumer Protection Act, 1986.
After admission of the complaint notices were issued upon the OPs through this Ld. Forum. But inspite of receipt of notice the OP-2 did not turn up to contest the complaint either orally or by filing written version. So this complaint is running ex parte against the OP-2. During final hearing as none was present on behalf of the OP-2, we took up the hearing ex parte against the OP-2.
The Complainant has adduced evidence on affidavit along with several papers and documents in support of his contention. The Complainant has also relied on several judgments i.e. 2015 (3) CPR 799 (NC), 2012 (1) CPR 45 (KER), 2009 (2) CPR 406 (NC) and 2009 (1) CPR 61 (Maharashtra). The OP-1 has filed written notes of argument with a copy to the other side. The OP-1 has also submitted several papers and documents in support of its contention by way of ‘firisty’.
We have carefully perused the entire record; papers and documents filed by the contesting parties and heard argument advanced by the Ld. Counsel for the parties at length. It is seen by us that there are some admitted facts in the instant complaint i.e. the Complainant obtained one medi-claim policy from the OP-1 in the year 2000-2001, the said policy was continued till 31.03.2013 to 30.03.2014 without any break, the Complainant, his wife and his son were under the coverage of the said policy for medical treatment and hospitalization expenditure, initially the policy coverage was for Rs.1,00,000=00 for each person but later on it was increased from Rs.1,00,000=00 to Rs.2,00,000=00 for each insured, during validity of the said policy the Complainant got admission at the BMCH, Burdwan on 05.12.2012 due to chest pain, he had to undergone treatment therein, a machine was inserted in his chest through an surgical intervention, the ailment was diagnosed as Interior Wall Myocardial Infraction, the Complainant got discharge on 10.12.2012 from BMCH, Burdwan, after release he intimated the OP-1 about his treatment, he lodged a claim for indemnification along with his relevant treatment related papers and hospital documents, he had to incur medical expenditure to the tune of Rs.90,023.80, in the claim form he claimed the abovementioned amount, the OP-2 is the appropriate authority to examine the claim form along with medical documents of the insured and it is also empowered to decide any claim, the OP-2 is authorized as per IRDA guideline, in this connection there is an agreement by and between the OP-1 and 2, there is no agreement by and between the Complainant and the OP-2, the OP-2 is appointed by the OP-1, upon receipt of the claim form the OP-2 put some questionnaire before the complainant, the Complainant provided all clarifications through written correspondences, the OP-2 wanted to know since when the Complainant has been suffering from Hypertension, Diabetes and Heart disease as per the certificate of the treating doctor and in this respect doctor’s declaration was required, the complainant was further asked to provide the current year policy copy along with past policy copies showing inception of the policy, the current year policy copy along with past policy copies was filed, as the certificate of the treating doctor was not filed by the Complainant hence the OP-2 by issuing a letter dated 13.12.2013 had closed the claim of the insured, in the said letter it was mentioned by the OP-2 that if the Complainant will be able to submit the doctor’s certificate as sought for then the OP-2 will submit the claim file to the OP-1 for reopening the claim, on 21.01.2014 the Complainant filed the certificate of the treating doctor. The allegation of the Complainant is that inspite of submitting the required document before the OP-2, the OPs did not bother to settle his legitimate insurance claim and as his grievance had not been redressed hence this complaint is filed praying for certain reliefs along with reimbursement of the amount as incurred by him for the purpose of his medical treatment and operation.
The rebuttal case of the OP-1 is that as the Complainant did not furnish the required document as sought for by the OP-1 inspite of repeated reminders, the insurance claim of the insured-Complainant had been closed and it was mentioned by the OP-1 that the claim file may be re-opened in future if the Complainant will file the required document. According to the OP-1 there was no deficiency in service as well as unfair trade practice on its behalf, so the Complainant cannot get any relief as prayed for.
Therefore the moot question is as to whether the Complainant is under obligation to submit the required document as sought for by the OP-2 or the OP-2 is entitled to claim the same or not. Admittedly the Complainant obtained the medi-claim insurance policy from the OP-1 in the year 2000 and till 30.03.2014 it was continuing without any interruption or break. No case has been made out by the OP-1 that the policy became lapse for the time being during this period i.e. from 2000 to 2014. We have noticed that upon receipt of the claim form along with treatment related papers and documents from the Complainant the OP-2 started to process the same. Some clarifications were sought for by the OP-2 and the Complainant accordingly replied the same. Thereafter the OP-2 by issuing letter dated 20.04.2013 directed the Complainant to submit a certificate from the treating doctor mentioning since when the Complainant has been suffering from Hypertension, Diabetes and Heart disease and to provide the current year policy copy along with past policy copies showing inception of policy. The Complainant had submitted the current year policy copy along with the past policy copies showing inception of the policy, but could not produce the certificate of the treating doctor within a specified period and due to non-submission of the said document the OP-2 had closed the claim file of the Complainant. Thereafter one certificate dated 21.01.2014 was issued by the treating doctor namely Dr. Biswarup Mukherjee stating that the Complainant-patient had no history of Hypertension, Diabetes or previous Heart Disease. Inspite of submission of the said certificate the OPs did not bother to reopen the claim file though it was mentioned by the OP-2 in the repudiation letter dated 13.12.2013 that if the Complainant will file the required document, the OP-2 will submit the claim file to the insurer for reopening the same. There is no such evidence on behalf of the OP-1 that inspite of submitting the required document the OP-2 had placed the claim file before the OP-1 for its re-opening. Moreover, the vital and most important question is whether the OP-2 is entitled to direct the Complainant-insured to file the required document as mentioned above or not because the policy is not a new one and the same is continuing since 2000 without any lapse or break. Then after lapse of two years (after amendment of the Section 45 of the Insurance Act, now it is for three years) from the date of inception of the policy how the OP-2 can raise such question that since when the Complainant is suffering from Hypertension, Diabetes and heart Disease after lapse of about 11-12 years. In the Section 45 of the Insurance Act, 1938 it is enumerated which runs as follows:-
45. ‘No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.
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The three conditions for the application of the second part of the Section 45 are-
- The statement must be on a material matter or must suppress facts which it was material to disclose;
- The suppression must be fraudulently made by the policy-holder; and
- The policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
In the case in hand case though the OP-1 did not take such plea that there was suppression of material fact in the proposal form at the time of taking out the policy, but after continuation of the policy for a period of 11-12 years the OPs cannot claim any document from the Complainant for production of the certificate from the treating doctor mentioning since when the Complainant has been suffering from those ailments as mentioned above in view of the Section 45 of the Insurance Act, 1938. In our view it is liability of the OPs to prove by adducing cogent evidence that the Complainant was suffering from those ailments or any one of the same before taking out the policy and inspite of his knowledge he concealed the information in the proposal form fraudulently. But admittedly the Complainant has submitted the certificate from his treating doctor as per requirement of the OP-2 from where it is evident that the Complainant had no past history of Hypertension, Diabetes and previous\Heart ailment. Inspite of filing the same the OP-2 did not take any step for re-opening the claim file of the Complainant. Therefore such action of the OP-2 can easily be termed as deficiency in service and due to such deficient service of the OP-2 the Complainant had to approach before the Court of Law by filing this complaint and in this way the Complainant had to incur some expenditure. In our view the OP-2 is liable to pay litigation cost to the Complainant.
It is true that the policy was obtained by the Complainant from the OP-1 and in the said policy there are some terms, conditions, definitions and exclusion clause, which are binding both on the Complainant as well as the OP-1 as there exists an agreement which was signed by and between the Complainant and the OP-1. No agreement exits by and between the Complainant and the OP-2 and the Complainant does not know the OP-2. The OP-1 has entrusted the OP-2 for processing the claim forms and put its decision before the OP-1 about the fate of the claim. So the OP-1 is the principal and it is well settled that due to deficiency in service of the agent the principal will be liable. In the instant complaint we are inclined to make liable to the OP-2 inspite of being an agent of the OP-1 because it was stated by the OP-2 in the letter dated 13.12.2013 that if the Complainant will submit the required document before it then the OP-2 will submit the file to the OP-1-insurer for re-opening the claim file of the Complainant. Accordingly the Complainant submitted the required document before the OP-2 on 21.01.2014, but the OP-2 did not place the file before the OP-1 for re-opening the claim file of the Complainant. Such action cannot be encouraged in the eye of law.
We have noticed that the Complainant has fully satisfied the OP-2 by filing entire required documents and the OP-2 has no authority to claim any certificate from the treating doctor mentioning since when he has been suffering from those ailments after lapse of 11-12 years from the date of inception of the questioned policy. After perusing the certificate of the doctor dated 21.01.2014 we are of the opinion that the treating doctor has clearly mentioned that the Complainant had no past history regarding those ailments and there is no ambiguity in the language of the said certificate. It is noticed by us that the OP-1 has blindly accepted the decision of the OP-2 going beyond the terms and the conditions of the policy, which it was bound to abide by because being satisfied with the statement of the Complainant it also put its signature in the proposal form and thereafter policy copy was issued and the same was uninterruptedly continued for long 13-14 years. Therefore such action of the OP-1 cannot be supported in the eye of law and in our view such action can be termed as deficiency in service and breach of trust on behalf of the OP-1, for which the Complainant is entitled to get compensation.
We have carefully gone through the rulings as relied on by the ld. Counsel for the Complainant and in our view those rulings are applicable in the instant complaint as the facts of those rulings are almost same and identical with the present complaint.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest without any cost against the OP-1 and allowed ex parte with cost against the OP-2. The OPs are directed to settle the insurance claim of the Complainant as lodged by him within 60 (sixty) days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the decree in execution as per provision of law. The OP-1 shall pay a sum of Rs.2, 000=00 (Rs. Two thousand) only to the Complainant as compensation due to mental and physical harassment, pain and agony and the OP-2 is directed to make payment of Rs.1, 000=00 (Rs. One thousand) only as litigation cost to the Complainant. The OPs are directed to pay compensation and litigation cost within 60 (sixty) days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the order in execution as per provision of law.
Let plain copies of this order 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
