1.           This is a petition filed by one Sri Upen Saikia (hereinafter referred to as the petitioner) against the Oriental Insurance Company Ltd., Nagaon Branch, Nagaon and one another (hereinafter referred to as the opposite parties) U/S 12 of the Consumer Protection Act, 1986 praying for recovery of money, compensation and other reliefs.

2.                Facts and circumstances for filing of the aforesaid petition as narrated by the petitioner are as follows:-

                     The complainant Sri Upen Saikia  being an Indian citizen opened a health insurance policy  under Happy Family Floater 2015 vide policy No.321201/48/2018/1827 w.e.f. 30/01/2018 to midnight of 23/012019 which was issued by the opposite party no.1 , namely, Oriental Insurance Company Ltd, Nagaon Branch, Nagaon on last 30/01/2018 Vide GSTIN18AAACT 0627R47V for sum assured Rs. 2,00,000/- Rupees Two lakh)only covering himself, his wife Mrs. Monima Saikia, his daughter kritijita Bhagawati and his son Jyotisman Bhagawati. His further submission is that as per the term and condition of the said policy, the insurance cover the risk of Domiciliary Hospitalization up to 10% of the sum insured and to cover the risk of personal accident, death case allowances etc. and also cover for the hospitalization expenses for medical and surgical treatment of patient at any Nursing Home/Hospital in India as defined in the policy.  The petitioner submitted that he having suffered from Cataract of both the eyes in the Month of February, 2018 intended to admit in the Sankardev Netralaya, Guwahati and accordingly, he informed the opposite parties in writing to provide expenditure for cataract surgery of his eyes and getting their assurance, he admitted in the said Hospital for surgery of his right eye on last 17/03/2018 but unfortunately, the opposite parties denied to provide the expenditure of his surgery and somehow, he managed Rs.32,000/- which was the cost of his surgery and get surgery of his eye. The petitioner submitted that later on, he received a letter from the opposite party No.1 on last 11.06.2018 wherein it was mentioned that as he has got pre-existing ailment of his eyes, which the policy does not cover, so his claim for insurance under the policy was denied. The petitioner further pleaded that he opened the policy first in the year 2015 vide No.321201/48/2015/1905 and thereafter, maintained continuation of renewal. He submitted that he served pleader’s notice on the opposite parties on last 03-07-2018 but the opposite parties though received the same but did not response and thereby denied to extend the benefit of his policy and such act, on the part of the opposite parties amounts to deficiency of service. Hence, this claim petition is before this Commission seeking for relief.

3.                Opposite parties filed their written version denying all the allegation leveled against them by the complainant. By their written version, the opposite parties inter alia pleaded that there is no cause of action for the complainant to file this petition before this commission, that the petition of the complainant does not attract the provision of Section 12 of the Consumer Protection Act and that there is no deficiency of service on the part of the opposite parties while repudiate the claim of the complainant.

                   The opposite parties stated that although the relevant insurance policy proposal by the insured was accepted but the medical documents of Sri Sankardev Netralay Hospital reveals that the complainant suffered from pre-existing disease like cataract of both eyes, dimness of vision of both the eyes which was developed since 8 years and much before the time of opening the policy and hence, his claim stands non payable as per standard policy clause No.41. The opposite parties stated that the claimant was not entitled to obtain any benefit for his policy and hence, they did not commit any deficiency of service. Under such circumstances, the opposite parties pray for dismissal of the complaint petition.

4.                On basis of pleadings of both the contesting parties the following points have come out for discussion and decision:-

1. Whether the complainant suffered mental and financial loss for the act of the opposite parties denying to extend the benefit of his health insurance policy bearing No. No.321201/48/2018/1827 which he duly insured for himself and his family members and whether such act on the opposite parties amounts to deficiency in service ?

2. Whether the complainant is entitled for the relief as prayed for?

5.                   The complainant filed evidence in affidavit of himself and two other witnesses and also exhibited several documents in support of his claim. The opposite parties also examined one witness in support of their pleas.

7.                      Decision and reasons thereof:-

8.                     For the sake of brevity both the Point (i) & (i) are taken jointly for discussion and decision.:-

                     The claim of the claimant is that he opened a health Insurance policy  with condition to provide expenditure for hospitalization, surgery etc. and due to cataract operation of his right eye, he admitted in the Sankardev Netralaya, Guwahati and though he placed his claim before the opposite parties to provide him the hospital expenditure for his surgery but they repudiate his claim. In support of his claim, the complainant examined himself as P.W.1. In his evidence, this P.W.1 deposed to the effect that he opened a health insurance policy  under Happy Family Floater 2015 vide policy No.321201/48/2018/1827 w.e.f. 30/01/2018 to midnight of 23/012019 which was issued by the opposite party no.1 , namely, Oriental Insurance Company Ltd, Nagaon Branch, Nagaon on last 30/01/2018 Vide GSTIN18AAACT 0627R47V for sum assured Rs.2,00,000/- (Rupees Two lakh)only covering himself, his wife Mrs. Monima Saikia, his daughter kritijita Bhagawati and his son Jyotisman Bhagawati. His also deposed that as per the term and condition of the said policy, the insurance cover the risk of Domiciliary Hospitalization up to 10% of the sum insured and to cover the risk of personal accident, death case allowances etc. and also cover for the hospitalization expenses for medical and surgical treatment of patient at any Nursing Home/Hospital in India as defined in the policy.  Further evidence of the P.W.1 is that he having been suffering from Cataract of both the eyes in the Month of February, 2018 intended to admit in the Sankardev Netralaya, Guwahati and accordingly, he informed the opposite parties in writing to provide the expenditure for cataract surgery of his eyes and getting their assurance, he admitted in the said Hospital for surgery of his right eye on 17/03/2018 but unfortunately, the opposite parties denied to provide the expenditure of his surgery and then, he somehow managed Rs.32,000/- which was the cost of his surgery and get surgery of his eye. He also deposed that he opened the policy first in the year 2015 vide No.321201/48/2015/1905 and thereafter, maintained continuation of renewal. His further evidence is that he served pleader’s notice on the opposite parties on last 03-07-2018 but opposite parties though received the same, did not response and thereby denied to extend the benefit of his policy and such act, on the part of the opposite parties amounts to deficiency of service. The P.W.2- Mrs.Monima Saikia by her evidence support the P.W.1 in all material aspects.

             The opposite parties by filing their written statement submitted that as the petitioner suffered pre-existing disease like cataract of both eyes, dimness of vision of both the eyes which was developed since 8 years that is much prior to the opening of his policy, so, they denied to extend the benefit of his policy for his said ailment and treatment. In support of their pleas, the opposite parties examined one Sri Chanrei Makan, the Branch Manager of Oriental Insurance Company Ltd. Nagaon Brach who deposed that the medical documents of Sri Sankardev Netralay Hospital reveal that the complainant suffered from pre-existing disease like cataract of both eyes, dimness of vision of both the eyes which was developed since 8 years that is much prior before his opening of the policy and hence, his claim stands non payable as per standard policy clause No.41.

                       Thus, the opposite parties pleaded and adduce evidence that the petitioner suffered from pre-existing disease like cataract of both eyes and  dimness of vision of both the eyes which was developed since 8 years that is much prior to the opening of his policy. However the D.W.1 did not adduce any evidence to support the fact that the insurance company had done any medical examination of the complainant  regarding his health condition before accepting the proposal of the health insurance. Hon’ble Apex Court in Life Insurance Corporation of India-Vs-Komalavalli Kamba & Ors. Reported in (1984) AIR, 1014, 1984 SCR (3) 350 has categorically stated that the general rule is that the contract of Insurance will be complete only when the party to whom an offer has been made accepts unconditionally and communicates the acceptance to the person making the offer and the duty of the insurer is to verify the correctness of the information supplied by the person whose life is assured regarding his health condition. In the instant case the opposite parties failed to adduce any evidence that they verified regarding the information supplied by the policy holder regarding his health condition before accepting the health Insurance policy. Simply filing Hospital record is not sufficient to establish the fact that the complainant was suffering from pre-existing disease like cataract of both eyes and dimness of vision of both the eyes prior to the date of his application for his policy. In view of above observation we are of the opinion that the complainant has successfully established that there is a deficiency of service on the part of the opposite parties.

                  In result both the points for discussion and decision are answered in affirmative and go in favour of the complainant.

                                            O    R   D    E   R

9.                        In view of the above discussion, it is found that the complainant has succeeded to prove that there was a deficiency of service on the part of opposite party No.1 and 2.

                       Accordingly, the prayer made by the complainant U/S 12 of the Consumer protection Act is allowed on contest. Issue direction to the opposite party No.1 and 2 to pay the complainant immediately the medical expenditure incurred by him for surgery of his right eye as per terms and condition of health insurance policy  under Happy Family Floater 2015 vide policy No.321201/48/2018/1827 along with compensation of Rs.5,000/-(Rupees Five Thousands) with interest @ 12 per annum from today till payment. 

                         Inform all the parties concern.

                      Given under the hand and seal of this Commission, we signed and delivered this Judgment on this  2^nd  Day of May 2023.