West Bengal

Burdwan

CC/188/2013

Saugata Das - Complainant(s)

Versus

New India Assurance Co.Ltd - Opp.Party(s)

Mirza Raja Begs

19 Jun 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
166 Nivedita Pally, Muchipara, G.T. Road, P.O. Sripally,
Dist Burdwan - 713103
 
Complaint Case No. CC/188/2013
 
1. Saugata Das
Parbirhata East ,G.T Road Town ,P.S & Dist Burdwan
...........Complainant(s)
Versus
1. New India Assurance Co.Ltd
87,Mahatma Gandhi Road Fort Mumbai 400001
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MRS. Silpi Majumder PRESIDING MEMBER
 
For the Complainant:Mirza Raja Begs, Advocate
For the Opp. Party: Ahibhushan De, Advocate
ORDER

JUDGEMENT

 

            This is an application U/s 12 of the C.P. Act, 1986.

 

            The complainant’s short case is that he and his family i.e. his parent and spouse insured under the hospitalization benefit policy/mediclaim policy in the year 2007 and the policy number is 512102/34/10/11/00000319 for the period from 16th May, 2006 to 15th May, 2011 for the sum of Rs.2,00,000/- each.  Previously the complainant as well as his parents and spouse were also insured under the policy No.512102/34/09/11/00000179 for the year May, 2009 to May,2010.

            In the month of February, 2011 the father of the complainant namely Satyen kr. Das suffering from pain and swelling in the right side of the neck and he consulted with the doctor namely Dr.Dev Roy, Head & Neck Oncology and facial cosmetic surgeon of Appollo Gleneagles Hospital.  As per advice of the Dr. Roy the father of the complainant consulted with Dr.J.J.Mukherjee on 4.4.2011 and advised certain investigation and prescribe medicine.  Thereafter, the father of the complainant admitted in the Appollo Gleneagles Hospital on 22nd April, 2011 for Angiogram/angiography and discharged therefrom on 23rd April, 2011.   Thereafter, the father of the complainant consulted with Dr.Tapas Roy Chowdhury, Director Cardio Surgery, Woodlands Heart Centre on 28.4.2011.  As per advice of Dr.Roy Chowdhury the patient was admitted at Woodland Heart Centre under Dr.Roy Chowdhury on 8.5.2011.

            After perusing the investigation report and on the basis of the clinical findings the doctor diagnosed the father of the complainant suffering from CABG of T.V. Choronary Artery disease using Lima-Rima Y-grafting.  The father of the complainant underwent Lima-Rima Y-grafting of pump on 10.5.2011 and he was admitted to Woodlands hospital upto 17.5.2011.  The patient was discharge from Woodland hospital on 18.5.2011 and incurred expenses to the tune of Rs.2,22,580/-. 

            The complainant lodged claim before the O.P.s along with all relevant documents and bills.  The O.P. No.3, TPA of New India Assurance Co. Ltd. assessed the claim of the complainant.  The O.P. No.3 vide there letter dated 27.7.2011 repudiated the claim of the complainant on the ground of clause No.4.1 alleging the disease is a pre-existing one.

            The ground on the basis of which the claim of the complainant has been repudiated under the aforementioned policy is arbitrary, illegal and not tenable in the eye of law.  The repudiation of the claim of the complainant is clearly indicating deficiency in service and unfair trade practice on the part of the O.P.  Finding no other alternatives the complainant filed this case before this Ld. Forum for relief.

            The O.P. No.2, the New India Assurance Company Ltd. has contested the case by filing written version, denying inter-alia all the material allegation as leveled against him.  The O.P. No.2 has stated that the complainant, Sri Saugat Das is the insured/policy holder in respect of the policy No.512102/34/10/11/00000319 for the period from 16.5.2010 to 15.5.2011 under hospitalization benefit policy/mediclaim policy under this O.P.

            Be it mentioned that the O.P. No.3 i.e. Heritage Health TPA Private Ltd., is the third party administrator who was appointed for speedy settlement and disbursement of the legitimate claim to be raised by the holders of Mediclaim policies, being bound by the rules of IRDA.  It appears from the letter of O.P.No.3 dated 27.7.2011, addressed to the complainant, Sougat Das that the claim of the complainant has been found to be inadmissible as per the terms and conditions of the said Mediclaim Policy and as such the claim was repudiated as per Clause-4.1 of the said Mediclaim Policy on the ground that the pre-existing disease not covered in the said policy.  Be it mentioned that the inception date of policy i.e. the date of issuance of first policy is 16.5.5.2008 and pre-existing nature of the disease of the father of the complainant, Satyen Kumar Das with DM-Type-II (Diabetes Mellitus Type-II) since 6-7 years and Hypertension and as such the claim of the complainant was rejected according to Clause-4.1 of the said Mediclaim policy(2007).

            The O.P. further stated that this O.P. has issued the aforesaid mediclaim insurance policy subject to the terms, conditions, exception and limitation thereof.  This O.P. cannot pay any amount beyond the terms and conditions of the policy.  There is no latches or negligence and deficiency in service on the part of this O.P. and as such the complainant is not entitled to get any relief as prayed for and as such the instant case is liable to be summarily dismissed against this O.P.

Point for consideration in this case is;

  1. Whether there is any deficiency in service on the part of O.P.s by repudiated the claim?

DECISION WITH REASON

 

Admittedly the father of the complainant Satyen Kr. Das was admitted at Apollo Gleneagles Hospital, Kolkata on 22.4.2011 and discharge on 23.4.2011 and thereafter admitted at Woodland Multispecialty Hospital, Kolkata on 8.5.2011 and discharge threfrom on 18.5.2011 and diagnosed coronary artery disease, for which underwent CABG for T.V. Coronary Artery disease using Lima-Rima Y-Graft and incurred expenses to the tune of Rs.2,22,580/-.  Admittedly complainant have a family mediclaim policy for the period 16.5.2010 to midnight 16.5.2011 and also the name of Satyen Kr. Das is mentioned in the list of family person as retired (father).  This policy was issued firstly on 16.5.2008.  Thus it is clear to us, that year after year this mediclaim policy is being renewed.  We are aware that O.P. repudiated the claim, claiming pre-existing disease according to Clause- 4.1 of the said mediclaim policy (2007).

            Now the question is whether the treatment of the complainant’s father can be treated as pre-existing disease or not?  There is no scrap of medical documents or any believable evidence before this Forum that prior to taken the policy, the complainant’s father was hospitalized due to the disease diagnosed and treated by the doctor of Woodland Hospital.  It is true that there is a prescription of Dr. Mukherjee of Apollo Gleneagles Hospital, where is 6/7 years (illegible) written but that does not mean that the patient was hospitalized for that diseases. 

The Ld. Advocate of the O.P. has  tried to convince us showing the discharge summary issued by the Apollo Gleneagles Hospital on 23.4.2011 wherefrom it appears that patient was known as diabetic mellitus type-2, hypertension etc.  But that does not mean the patient has been suffering prior to taking policy in the year 2008 and he was hospitalized for that disease.  It may be, that obtaining the policy those diseases may cropped up but there is no history of hospitalization.

            It is well known to us that  any persons having some disease like hypertension, diabetics, occasional pain, cold, headache, arthritis and stomach up set for chronic indigestion is now a day’s wear and tear of modern days life.  So, medication and treatment by doctor if at all can be proved by filing any prescriptions then also it cannot be treated as a concealment of pre-existing disease and repudiation of insurance claim, is not at all justified, unless an insured in the near proximity of taking of the policy is hospitalized or operated upon, for the treatment of this disease or any other disease in the light of the diagnosis of the Apollo Gleneagles Hospital, Kolkata.

            It is well known to us that insurance company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medical policy whether a person is fit to be insured or not.  It appears that the insurance company did not discharge this obligation as half of the population who are suffering from such malaises and they would be left with no or very little business.  Thus, any attempt on the part of the insurer to repudiate the claim for such non-disclosure justificable, and not permissible, nor is “ exclusion clause” invoke-able.

            Claim of any insured should not be and cannot be repudiated by taking a clue  of remote reference to any so called disease from the discharge summary of the insured by invoking the exclusion clause for non-disclosure of pre-existing disease, unless the insured had concealed his hospitalization or operation for the said disease under taken in the reasonable near proximity.

            We have constrained to hold that unless and until a person is hospitalized or undergone operation for a particular disease in the near proximity of obtaining the insurance policy or any disease, for which he has never been hospitalized or undergone operation is not a pre-existing disease.

            It  should be born in mind that doctrine of good faith is two way traffic and not a one way traffic.  If the insurance company take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from doctor on the panel that insurance poses sound and good health and he is entitled to get medical insurance policy.

            The Ld. Advocate of the insurance company has submitted some judgment of Appellant Forum but on the above discussion we find that the facts and circumstances of those judgments are not identical in toto in the instant case. 

            In this above back drop, the case of the complainant should be allowed applying the considerable mind of natural justice.  Hence, it is

OREDERED

that the application U/s 12 of the C.P. Act is allowed on contest against O.P. No.1 & 2 and exparte against O.P. No.3.  The O.P. No.1 & 2 are hereby directed to pay the sum assured of Rs.2,00,000/- to the complainant together with compensation of Rs.25,000/- and litigation cost of Rs.2000/- within 45 days from this date of order, in default interest will carry @ 10% p.a. from the date of this order to till its realization.  The complainant is at liberty to execute the same through this Forum after expiry of 45 days.  Let the plain copy of this judgment be handed over to all the parties free of cost.

 

     (Udayan Mukhopadhyay)

             Dictated and corrected by me.                                                        President       

                                                                                                                  D.C.D.R.F., Burdwan

 

                  (Udayan Mukhopadhyay)

                           President

                   D.C.D.R.F., Burdwan

 

 

                                                                               (Silpi Majumder)

                                                                                    Member    

                                                                      D.C.D.R.F., Burdwan   

 
 
[HON'BLE MRS. Silpi Majumder]
PRESIDING MEMBER

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