The instant case was instituted on the basis of a petition under Section 12 filed by one Sudipta Bhowmick, W/o- Tapan Bhowmick, of Deshbandhupara, P.O. & P.S.- Islampur, Dist.- Uttar Dinajpur which was registered as Consumer Case No. 55/16 in this Forum.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant purchased a Happy Family Policy vide No.- 312593/48/2015/29 on 21-06-2014 and the same policy was valid up to 20-06-2015 and the same policy was again renewed on 21-06-2015 which was valid up to 20-06-2016 and for purchasing the policy the complainant paid a premium of Rs.6533/- and 6260/- and it covers full family of the complainant up to the Rs.200000/-.

In the year 2014 the husband of the complainant namely Tapan Bhowmick was suffering from physical problems for which he used to visit several doctors in several places and lastly after clinical examination by the Apollo Hospital in Chennai it is found that he was suffering from schwanonma which is a tumor of nerve sheath and for that purpose he was admitted to Apollo Specialty Hospital in Chennai on 16/12/2014 and the husband of the complainant was operated for the said purpose on 18/12/2014 and he was discharged from the hospital on 26/12/2014.

From the petition as well as evidence it is further revealed that in due time the complainant informed the matter officially to the O.Ps. and also supplied all documents but ultimately the O.P. did not make any payment towards the claim.

On 08/09/2015 the O.P.No.1 sent a letter to the complainant and declared that the claim of the complainant was repudiated on the ground that Left Lumber Paraspinal Schwanoma are inherited disorder that is “genetic in origin”.

After receiving the letter the complainant and her family became frustrated as because they have already meet up the hospital bills by getting loan from here and there.

The further case is that the doctors did not declare surely that the husband of the complainant was suffering from genetic disease.

The complainant has claimed of Rs.2,98,440/- for the cost of treatment, Rs.10,000/- for litigation cost and Rs.1,90,000/- for harassment and mental pain and agony.

The petition has been contested by the O.P.No.1 and 2 by filing the W.V. denying all the material allegations as leveled against them contending inter alia that the instant case is not maintainable. The case is bad for defect of non- joinder of necessary parties and the case is barred by Law of limitation. The case is also barred by the principle of estoppels, waiver and acquiescence.

The further defence case is that the claimant has claimed for expenses related to management of “LEFT LUMBER PARASPINAL SCHEANOMA.”

As per conditions of the policy vide clause No.- 4.8 congenital external and internal disease are not covered of the policy, so the O.P. Insurance Company is not liable to pay any medical expenses for the treatment.

There is no latches on the part of the Insurance Company to settle the claim of the complainant. So, the case is liable to be dismissed with cost.

During trial the complainant Mrs. Sudipta Bhowmick was examined as PW1 and she was cross examined by the Insurance Company. No other witness was examined on behalf of the complainant. On the other hand Shri. Parimal Chandra Sarkar was examined as OPW1 on behalf of the Insurance Company. During trial both sides filed the documents as per firisti.

Now the point for determination as to whether the complainant is entitled to get any order from this forum or not.

            D E C I S I O N W I T H R E A S O N S:

At the time of argument the Learned Lawyer of the O.P. Insurance Company submitted that the insurer Tapan Bhowmick was suffering from Left Lumber Paraspinal Schwanoma are inherited disorder that is “genetic in origin.” As per terms and conditions of the policy vide clause No.-4.8 congenital external and internal diseases are not covered of this policy. So, the complainant is not entitled to get any relief as per policy.

 On the other hand the Learned Lawyer of the complainant submitted that the husband of the complainant was treated at different hospitals including Apollo Speciality Hospital in Chennai. Now the main point is to be considered whether the disease which was diagnosed genetic in nature or not. According to the argument as advanced by the Learned Lawyer of the complainant is that the complainant filed an another case before this Forum and in that case some documents were field regarding the nature of treatment. On the other hand Dr. Siddhartha Ghosh opined that the disease which was diagnosed “may be genetic in nature.” But no where it has been stated clearly, that the disease is “genetic in nature.” Though the O.P. Insurance Company has stated that the disease which was genetic in nature, so the claimant is not entitled to get any relief. But the O.P. Insurance Company did not adduce any evidence to prove this fact that the disease is genetic in nature. Though the Insurance Company tried to examine Dr. Mittal but no document has not been proved as Dr. Mittal was not examined by the O.P. before this Forum. On the other hand the doctors of the Apollo Speciality Hospital did not opine confirmly that the disease is “genetic in origin.” So, the complainant will get a favour of such report. If Dr. Mittal was examined and he is the best person to say that the disease is genetic in nature. So, in such circumstances the O.P has failed to prove the disease which was diagnosed by the doctor is genetic in origin. It is also admitted by the O.P. that complainant was treated at Apollo Speciality Hospital including the other medical expenses, so the complainant had to incur medical expenses as the total sum assured of Rs.200000/- as per policy. But the complainant is not entitled to get any amount more than Rs. 200000/- and the Xerox copy of the medical expenses has been filed.

Hence, it is

                                  O R D E R E D:

 That the complaint case being No.- CC-55/16 be and the same is allowed on contest against the OPs. with cost.

The complainant is entitled to get Rs.2,00000/- for the cost of treatment, Rs.10,000/- as compensation for harassment and mental pain and agony and Rs.5000/- as litigation cost and the total amount comes to Rs.215000/-. The OP is directed to pay the amount within two months from the date of this order failing which it will carry interest the rate of 5% per annum. The complainant is at liberty to execute the order as per provision of law in case of default of payment by the OPs.

Let a copy of this order be given to the parties free of cost.