FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application as filed by the complainant U/s 35 of the CP Act 2019 against the OP National Insurance Company Ltd.
` The fact of the case in brief is that the complainant obtained a Mediclaim Insurance Policy from the OP on payment of required premium.
It is further stated that after the birth of his son Vivek Sethia the complainant applied for inclusion of the name of his minor son in the said policy in question being No. 101900502010001153 issued by the OP on 25.05.2020. The copy of the policy in question is marked as annexure A.
The copy of prospectus of the National Mediclaim is also enclosed herewith as marked as annexure- B.
It is further case that since in the year 2003, when he obtained he policy in question he used to renew the same on payment of requisite premium time to time and he included the name of his minor son Vivek Sehtia in the said policy on 25.05.2020.
` The complainant further stated that on or about 03.05.2021 his son Vivek Sethia was admitted at Park View Super Specialty Hospital and under weight RT orchido pexy under GA and was after operation by surgeon discharged on 05.05.2021 from the hospital.
The complainant claimed for reimbursement of the medical expenditure of his son under the policy in question before the OP insurance company but the OP Insurance Company has repudiated the same vide its letter dated 12.08.2021.
The complainant further stated that the total medical expenditure for the surgery of his son was of a sum of Rs. 1,13,572/- paid by the complainant to the Park View Super Specialty hospital on the date of discharge of his son therefrom. The claim application dated 12.08.2021 has been annexed as annexure C and D.
The OP Insurance Company has repudiated the claim of the application as per clause 4.5 of the mediclaim of the policy in question which excludes birth defects/ congential external disease or defects or anomalies.
The complainant further stated that he made a representation on 16.08.2021 to the Senior Divisional Manager of the OP Insurance Company along with supporting documents stating inter alia that his son did not have subject anomaly and that claim was also repudiated by the OP Insurance Company by its letter dated 18.10.2020 which is annexed as annexure E and F respectively.
The complainant attached all the medical papers including the prescription renowned pediateration Dr. A K Ghoshal who examined the complainants’ son Vivek Sethai on 21.04.2011 three days after his birth and that prescription does not described any thing about undescented testis . The complainant submitted all the medical papers issued by different doctors who examined his son but the OP Insurance Company did not take into consideration and repudiated the claim.
The complainant stated that thereafter having no other alternative, he decided to file this case against the OP. The cause of action was arouse on 18.10.2020 when the policy issued and renewed time to time thereafter, the complainant has filed this case against the OP Insurance Company with a prayer to give direction to the OP Insurance Company to reimburse the amount of Rs. 1,13,572/- in total to the complainant which was medical expenditure of his son who was covered under the policy along with interest @ 12 % pa.
The complainant further prayed for giving direction to the OP for giving compensation of Rs. 2 ,00,000/- to him for harassment, mental pain and agony along with cost of Rs. 20,000/-.
The OP Insurance company has contested the claim application by filing a WV denying all the material allegation leveled against it. It is the case of OP that the complainant has got no cause of action to file the case and the case is not maintainable in the eye of law.
The OP further alleged that the petition of complaint is filed by the complainant is harrasive malafide and baseless and it is entirely misleading the material of the fac. The complainant has filed the case with ulterior motive .
It is admitted fact that the complainant took National Pariwar Mediclaim being No. 101900502010001153 for the period from 00.00 hrs on 25.05.2020 to midnight of 24.05.2021 for the sum assured of Rs. 10,00,000/- for which the total amount of premium paid by the complainant is /was of Rs 27,534/-as per certificate in respect of the compliance section of 34 VB of insurance Act 1938. The photocopy of which is annexed as annexure- A.
It is also admitted fact that the complainant filed a claim form on 11.05.2021 for his son Vivke Sehtia who was admitted 03.01.2021 at Park View Super Specialty Hospital and was discharged there from on 05.05.2021 . The minor boy was suffering from undescendent right testis and underweight RT orchido pexy under GA and the claim amount of Rs. 1,13,572/- . The OP stated that the authorized TPA “safe insurance TPA Pvt. Ltd.” informed the Senior Divisional Manager of National Insurance Company Ltd. vide letter dated 22.07.2021. Policy was repudiated by the OP vide its letter dated 22.07.2021.
The OP further stated that the claim of the complainant was barred by terms and conditions of National Insurance Policy. So, the OP repudiated the claim of the complainant.
Under such circumstances, there was no deficiency in the policy on the part of the OP. So, the OP is not bound or liable to pay compensation to the complainant rather the petition of complainant is filed by the complainant as baseless false and frivolous and the same is liable to be dismissed.
in view of the pleadings stated above, the points of consideration are as follows:
1. Whether the case is maintainable or not?
2. Have the complainant any cause of action to file this case?
3. Is the complainant consumer?
4. Is there any deficiency in service on the part of the OP?
5. Is the complainant entitled to get the relief as prayed for?
Decision with reasons
All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetition.
On a close scrutiny of materials on record, it is found that the case is well maintainable in the eye of law and this commission has got ample jurisdiction to try this case.
Admittedly, the complainant obtained the insurance policy in question from the OP insurance company in the year 2003 on payment of required premium and that was renewed time to time under the name and style National Pariwal Mediclaim policy being No. 101900502 010001153 for the period from 00.00 hrs on 25.05.2020 up to midnight of 24.05.2021 for the sum assured of Rs. 10,00,000/-.
From the evidence on record, it is revealed that the amount of premium paid by the complainant was of Rs. 27,534/- as per policy certificate.
From the evidence on record as adduced by the parties to this case it is revealed that after birth of the son of the complainant named as master Vivek Sethia was also added in the policy in question in or around in the year 2011.
From such admitted fact, it is crystal clear that the complainant is a consumer within the ambit of CP Act, 2019 and the OP Insurance company is a service provider.
it is the case of the complainant that his son master Vivek Sethia was borne in the Prince Nursing Home and at the time of his birth he was not diagnosed with any disease which is exempted from insurance policy as evident from the prescription of Dr. A K Ghosal and after his birth his named is included within insurance policy being no. 101900502010001153 as we got it from page no. 14 and 13 of the petition of complaint and also from the annexed documents filed by the parties to this case.
From evidence on record we have got it that Vivek Sethia was borne in the month of April 2011 and on 29th April 2021 he was consulted a general physician with pain in his right inguinal reason and pressure and on medical examination it was revealed that his right testis is missing in the scrotum. As a result, Vivek Sethia was suffered from acute undescented testis. thereafter, he was advised to admit at Park Clinic Super Specialty Hospital on 03.05.2021 and underwent RT orchido pexy on account of being diagnosed for the first time with an accute undescent right testis. The complainant in his evidence and also in petition of complaint alleged that he placed the claim of Rs. 1,13,572/- on 11.05.2021 to the OP insurance company along with required documents for the reimbursement of medical expenditure of his son which was under covered the policy in question but that was repudiated by the OP in the policy in question vide letter date d 12.08.2021 on the ground that the claim of the complainant is excluded as per item 4.5 policy in question .
During the course of argument Ld. Advocate for the complainant argued that the disease of the master Vivek Sethia did not come within the category of birth defects and congenital disease so, the OP illegally repudiated the claim. Ld. advocate for the OP Insurance company during the course of argument submitted that there is insurance policy in ombudsman which is appropriate forum for adjudication of this petition of complainant but the this commission has got no jurisdiction to try this case.
On a close scrutiny of the position of law, this commission is of view that this commission is not restrained by law to entertain the petition of complaint and it is not mandatory for the complainant to approach the insurance policy Ombudsman so, this argument of the Ld. Advocate for the OP Insurance Company has got no basis at all and it is held by this commission that this commission has got ample jurisdiction to try this case.
Now let us see, whether the disease from which Master Vivek Sethia was suffering that was within the exclusion clause 4.5 of the insurance policy in question or not. Though the complainant in his petition of complaint and evidence has submitted that the disease by which master Vivek Sethia was suffering from that was undescended right testis and that was not within the category of birth defect/ congenital disease, but on a close scrutiny of the policy in question and the position of law it is found that the disease of Vievek Sethia that was a congenital external anomaly which is within the clause 4.5 of the policy condition in question and Both the Parties are bound by condition of the policy in question.
It is the view that the complainant is also bound by the exclusion clause of the policy in question. From the discussion made above, It is palpably clear that undescended testis from which Vivek Sethia the son of complainant was suffering has fallen within the category of congentia/ external anomaly which is within exclusion clause 4.5 of the policy for which the OP Insurance Company has rightly repudiated the claim for reimbursement of the surgical expenses of Rs. 1,13,572/- paid by him at park view super specialty hospital for surgery of Vivek Sethia .
Considering all aspects and also considering the evidence on record, this commission is of view that there is was no deficiency in service on the part of the Insurance Company for which he would be liable to get compensation to the complainant .
On the contrary, the complainant failed to prove his case against the OP beyond all reasonable doubt and is not entitled to get the relief as prayed for.
All the points of consideration are thus decided accordingly,
the case is properly stamped.
Hence,
Ordered
that the case be and the same is dismissed on contest against the OP Insurance company.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
