JUDGEMENT

          Complainant by filing this complaint has submitted that he had his Mediclaim Policy vide No. 510100/34/10/01/00203772 of M/s. New India Assurance Co. Pvt. Ltd.  Fact remains that he underwent a Microdiscetomy at Medica Superspeciality Hospital on 20.12.2011 and it was caused due to accident and for which he was admitted to said hospital and after discharge from the hospital he submitted a claim form vide No. 01123653 for Rs. 80,807/- to M/s. Medicare TPA Services (I) Pvt. Ltd. and they sought some queries and thereafter same was also duly clarified but they negated his claim.  Thereafter he wrote a letter to the Insurance Ombudsman who replied and suggested the complainant to write a letter to the branch of his policy’s office of M/s. New India Assurance Co. Ltd. and complainant again wrote a letter to the said Insurance Co.’s branch office and they finally regretted his claim.  Then complainant informed the matter to the Consumer Affairs Department, Govt. of West Bengal.  But after a tripartite meeting on 24.07.2013, the department advised complainant to prefer filing statutory complaint case on this issue before this Forum and accordingly complainant filed this complaint before this Forum and in the above circumstances for deficiency and negligent manner of service and also for harassing the complainant, complainant has prayed for payment of Mediclaim amount of Rs. 80,860/- including interest and also compensation for another compensation for harassing etc and total claim of the complainant of this complaint of Rs. 2,51,009/-.

          On the other hand the New India Assurance Co. Ltd. by filing writing statement has submitted that no doubt complainant took out one Mediclaim Policy of 2007 having such Policy No. 510100/34/10/01/00203772 of M/s. New India Assurance Co. Pvt. Ltd. which was valid from 30.03.2011 to 29.03.2012 with sum insured valued of Rs.2,00,000/- and cumulative bonus  of Rs. 10,000/- subject to terms, conditions, limitation and exceptions thereof.

          But during subsistence of such policy on 15.12.2011, complainant purportedly fell down at his residence and suffered back pain and as he went to Dr. Bibek Mohan Rakshit, a consultant obstetrician and gynaecologist for medication and the said gynaecologist referred complainant to Dr. L.N. Tripati of Medica Hospital and the said Dr. Tripati on the following date checked up complainant and where in his prescription dated 16.12.2011 he has specifically referred that the complainant had low backache for last 2 months and the said doctor also suggested for MRI scan and thereafter again on 19.12.2011 complainant visited Dr. Tripati and who having seen the said MRI report advised for microdiscectomy of L4 and L5 and accordingly complainant was admitted at the Medica Super Speciality Hospital on 20.12.2011 and was discharged on 22.12.2011 with final diagnosis of L4 and L5 disc prolapsed with cord compression and having a history of low back pain and right leg pain and it appears in the operation theatre note that a large central disc bulge tenting the thecal sac and compressing the nerve roots bilaterally.

          Thereafter complainant submitted claim and after considering the whole material prescriptions and opinion of the doctor, the claim of the complainant was repudiated as per document as admitted policy and fact remains as per MRI report there is a L4-L5 disc prolapsed and as per their records the complainant is covered under the policy from 30.03.2011, i.e. policy duration is less than two years and the subject ailment has a 2 years’ waiting period and for such purpose the said TPA could not admit the liability and repudiated the claim as per policy exclusion Clause 4.3 of the subject policy.

          Further op stated that the complainant in fact was operated for his existing ailment of low back pain and as such Clause 4.3 has been attracted in this case and further it had been a case of purported accidental fall, the complainant could not have waited for such a long period after the alleged incident for surgery staying at home.  It is therefore not at all a case of any accident.  So, in the above circumstances, there was no laches on the part of the op and for which the complaint should be dismissed.

                                                       Decision with reasons

          On proper consideration of the complaint including written version and the argument as advanced by the Ld. Lawyers of both the parties, it is found that in case of prolapse Inter Vertebral Dise unless arising from accident.  No claim shall be entertained for first two years and in this case the Ld. Lawyer for the op submitted that practically it was a Prolapse Inter Vertebral Dise and such a disease cannot be caused due to accident forthwith and for which the claim of the complainant was repudiated after considering the medical papers as submitted by the complainant on the basis of the Clause 4.3.  So, there was no laches on the part of the op and op assaulted their duties after considering the material documents.

Whereas Ld. Lawyer for the complainant submitted that the repudiation was made by the op on the ground “ As per documents the member is having low back pain for last 2 months.  As per MRI report there is a L4 – L5 disc prolapsed.  As per our records the member is covered under the policy form 30.03.2011.  Policy duration less than 2 years.  The current ailment (PIVD) has a 2 years waiting period.  Hence we regret to admit this liability and claim merits repudiation as per policy Exclusion Clause 4.3 of NIA Policy”.  Ld. Lawyer for the complainant submitted that op has admitted that he sustained low back pain at first for last 2 months prior to his examination by the doctor and from the medical discharge summary and Medical Superspeciality Hospital, it is clear that there was a history of low back pain and right leg pain.  But on final diagnosis it was found that L4 and L5 disc prolapsed with cord compression.  So, L4-L5 was repaired by Microdiscectomy done under Dr. Tripathy on 20.12.2011 and in the operation theatre note that a large central disc bulge tenting the thecal sac and compressing the nerve roots bilaterally was detected.  But from the history of present illness, it is clear that complainant fell down on 15.12.2011 and he was aged about 42 years, a teacher by profession and complained low back pain after fallen.  In other past history was noted anywhere. 

          So considering that fact and also the MRI report, it is clear that this disease was not pre-existing disease and it was no instance at the time of purchasing the present policy.  Fact remains the policy was purchased for the period from 30.03.2011 to 29.03.2012.  But the present fall was caused on 15.12.2011 and that is after lapse of 7 months from the date of purchasing the present policy.  There is no such medical certificate or any such observation of doctor that it is pre-existing disease.  So, considering the medical papers it is clear that the present accident due to fall he sustained such injuries and for which the operation was necessitated and it was done for saving the patient from such L4 –L5  dise prolapsed with cord compression.

          So considering all the above fact, it is clear that the TPA has not properly followed the medical papers of the complainant as issued by the Medica Superspeciality Hospital.  Somehow there was different of opinion in respect of in between the doctors’ opinion who operated the patient and the TPA’s doctor.  But after proper scrutiny of the same it was clear that it was not a pre-existing disease.  So the repudiation was not justified and legal.  But considering the policy conditions including the bills and after proper calculation of the bills with the policy conditions, it is found that no doubt bills were in respect of some articles in respect of which the Insurance Co. is not liable to pay any amount.  But after proper checking up the bills, it is found that in total complainant is entitled to Rs. 61,000/- out of total claim bill because in the said bill stationery charge and some other charges are added and that is the practice of the private hospital.  So same are deducted as per the policy conditions and considering that fact we are convinced to hold that the complainant is entitled to Rs.61,000/- as final settlement of his mediclaim from the op and ops are bound to pay same because the repudiation was not legal in view of the fact.

          The present operation was done due to accidental fall and sufferings and complainant had no such pre-existing disease as claimed by the op and for which complainant is entitled to said amount as final settlement of claim.  But anyhow complainant has failed to prove any deficiency and negligence on the part of the op.

          In the above circumstances, the complaint succeeds in part.

          Hence, it is

                                                              ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the op no.1 and same is also allowed against op no.2 but without any cost.

          Op no.1 is hereby directed to pay a sum of Rs.61,000/- as final settlement claim of the Mediclaim Policy as made by the complainant and the repudiation as made by the ops on 18.02.2012 is found without any basis as there was no pre-existing disease of the complainant. 

Further for not getting benefit in time, op shall have to pay a further sum of Rs. 5,000/- as compensation no doubt for his sufferings and pain.

Accordingly op no.1 is hereby directed to pay a sum of Rs. 61,000/- as final settlement of Mediclaim Policy + Rs.5,000/- for litigation cost as awarded and Rs. 5,000/- for compensation for causing sufferings to the complainant and accordingly op no.1 is hereby directed to pay a total sum of Rs.71,000/- within one month from the date of this order treating the claim as final settled and if it is not paid within stipulated time in that case for violation and disobeyance of the Forum’s order op no.1 shall have to pay penal interest @ Rs. 300/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum’s account.

          Op no.1 is hereby directed to comply the order very strictly failing which penal action shall be started u/s 27 of C.P. Act 1986 and for which he may be further imposed penalty and fine for which they shall be liable for that.