Complainant Ajoy Kumar Gupta a bonafide Mediclaim Policy holder of the op Insurance Company (Oriental Insurance Co. Pvt. Ltd.) since 2005 vide PolicyNo.311300/48/2009/6761 for the period from 03.03.2005 to 02.03.2006 and policy for was for himself and his spouse and sum assured of Rs.1,00,000/- each and premium was paid Rs.2,620/- and the said policy was continued and for the period from 19.03.2012 to 19.03.2013 it was also valid.

          Practically due to some ear problem he had been under the treatment of Dr. S. P. Dey an Otolaryngologist since July, 2007 and he was advised for the treatment of the ear at first and operation would be done in his nose accordingly nose was operated in the year 2007 and he made claim for his operation which was rejected on the ground of pre-existing disease u/s 4.1 clause.  But after persuasions and representations and especially in view of the explanation and clarification of the operating doctor the op reimbursed the claims in two installments in 2008 after much harassment and in the said clarification and explanation of Dr. S.P. Dey dated 09.12.2007 it was specifically mentioned “Nasal operations was under taken as a first line of treatment before we actively conducted the treatment of the patient ears, in particular the right ear”.

          Accordingly after the said nasal operation and treatment of the ear was conducted in the year 2009 and he took admission 15.12.2009 at MICROLAP Nursing Home 24, Bipin Pal Road, Kolkata-700026 and after the operation doctor issued her discharge certificate noting “canal wall down mastoidctomy, Tympanoplasty & Cartilage Ossiculoplasty”.

          It is further claimed of the complainant is that mediclaim policy was cashless one and the op granted only Rs.15,000/- in 2 installments of Rs.10,000/- and Rs.5,000/- against the total policy of Rs.71,573.54/-.

          After getting discharge from Nursing Home he claimed Rs.71,573.54/- as his operational expenditure and submitted the duly filled up claim form on 18.02.2010 which was received by the op under seal and signature dated 19.02.2010.  But op company repudiated his genuine claim vide letter dated 03.05.2010 for observation “our medical doctor’s opined the claim as non-admissible and stands repudiated as per clause No.4.1 of the Standard Mediclaim Policy”.

          Thereafter complainant made representation for reconsideration of his claim vide letter dated 29.04.2011 but that was also rejected on 04.05.2011 by the op.  Thereafter complainant took explanation of the doctor S.P. Dey and he graciously responded positively stating that it was not pre-existing disease in the ear vide letter dated 15.10.2011 and after that complainant against represented before the op vide his letter dated 17.10.2011 with explanation of the said doctor and complainant submitted that his claim was genuine but op received it on 18.10.2011.  But they did not respond for which for getting such relief and redressal, complainant is compelled to file this case before this Forum.

          On the contrary the op by filing written objection submitted that the complainant’s petition is not maintainable in the eye of law and subject matter of dispute raised by the complainant in the entire case has no cause of action and in view of the fact the present complaint is barred by limitation under provision of C.P. Act 1986 and at the same time complainant’s disease was found as pre-existing disease by the Board of the Doctors of the op.  So, under any circumstances that cannot reconsider that was also reported to the op and fact remains at the time of purchasing the last present valid insurance policy, complainant did not disclose that he was suffering from pre-existing disease in the ear and in which the present complaint should be dismissed as complainant has violated the terms and conditions of the policy and did not disclose the truth and status of his pre-existing ailment on the date of renewal of the insurance policy by filing such declaration.

Decision with reasons

          On in depth study of the complaint and written version and also the letter of the Health Insurance consultant of the op for justifying the repudiation of the claim of the complainant by the op is also considered and from the said document it is clear that op has tried to confirm that DNS is being a congenital defects and it is corrective not covered by the policy but the said correction was required for management of the actual conditions of the ear problem and same becomes a part of the latter surgery and cannot be disallowed under the said policy and the present hospitalization therefore a surgery which was necessary for subsequent management of a condition of the ear operation that was a post policy inception and falls well within the ambit of his policy terms and conditions and the said information was of the dated 08.03.2008 and in respect of previous ailment and from that report it is clear that DNS is being a congenital defect but from that report it is clear that nose surgery is must for management of actual condition of the ear problem and fact remains it was within the knowledge of the op since 2008 that complainant has suffered from ear perforation problem since 2008 and that treatment cannot be completed if the nose is not operated.  So, the nose was operated by Dr. S.P. Dey in the year 2008 and that bill was ultimately sanctioned by the op after submission of the report of said Dr. S.P. Dey which is evident from the document of the op dated 08.03.2008 issued by Health Insurance Consultant.  Then it is clear that when for nasal surgery was must for operation of the ear and when in respect of nasal surgery related to ear treatment was done and in respect of which claim was alleged by the op in that case when the present policy valid for ear operation, but op ought to have been granted the claim but op refused.  But without any justified ground and fact remains as per report of the Dr. S.P. Dey M.B.B.S. DLO Cal & London, FRCS from Glasgo and Edinbara dated 15.12.2011 it is found that the said doctor very specifically opined that canal wall down mastoidctomy, Tympanoplasty & Cartilage Ossiculoplasty was under taken on 15.12.2009 completing the surgery procedure of management of complaint decided on 25.06.2007 by operating the nasal structure and para----------nsals sinuses and it is specifically submitted that it was not congenital disease.  So, considering the entire fact and opinion of the doctor previously accepted by the op in earlier occasion at the time of nasal operation we have gathered that the present operation is continuation of the previous nasal operation dated 10.07.2007.

          So considering that fact we are convinced to hold that the rejection of the claim of the present complainant or repudiation of his claim on the ground that it was pre-existing disease was completely baseless and without any foundation and most interesting factor is that the present op inception at the operation relating to ear problem loss was granted ultimately on the basis of the report of this doctor in the year 2008.  So invariably the present operation of ear was final operation of the in continuation of the previous operation of nose.  So, no way it can be treated as pre-existing disease but is a major surgery and in view of the above position and also relying upon the opinion of the doctor S.P. Dey dated 15.10.2011 and also relying upon the opinion of the Health Insurance Consultant dated 08.03.2008 we are confirmed that the present disease that is operation of ear was not pre-existing disease and for which during the present hospitalization is for a surgery which was necessary in management of condition of ear perforation that was a post policy inception and falls well within the ambit of his policy terms and conditions and for that reason we are confirmed that there was no good ground to discharge the claim of the complainant.  But anyhow it has become a practice of TPA to discharge all the cases in all the matters and insurance company has taken as defence in all cases standing on the foot of the TPA and if it is the procedure of the insurance company in that case we can say that without any hesitation no consumer (Mediclaim Health Policy) shall have to mediclaim from the op if TPAs are not removed.

          Whatever it may be we are satisfied that the complainant’s claim was justified and the present surgery for ear operation does not under the purview of pre-existing disease and for which the complainant is entitled to entire claim amount from the op Insurance Company and Insurance Company is liable to pay the same.

          In the result, the complaint succeeds.

          Hence, it is

                                                     ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the ops.

          Ops are directed to pay a sum of Rs.71,575/- as final claim amount in respect of the present Mediclaim Policy within one month from the date of this order and also shall have to pay a compensation of Rs.10,000/- for harassing the complainant by op’s TPAs and total of Rs.86,575/- within one month from the date of this order failing which for disobeyance of the Forum’s order op jointly and severally shall have to pay punitive damages @ Rs.300/- per day till full satisfaction of the decree and if it is collected same shall be deposited to the Head of the State Consumer Welfare Fund.

          Ops are further directed to comply the order very strictly without any fail within one month failing which for compliance of Forum’s order penal action may also be taken against them and even they may be sent to jail for implementation of this order.