In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 169 / 2008 1) Sri Alok Kumar Ghosh, S/o. Late Subodh Kumar Ghosh, 42/82, New Ba!lygunge Road, Kolkata-39, P.S. Kasba. ---------- Complainant ---Verses--- 1) Oriental Insurance Company, The Divisional Manager, Div-VI, Kolkata, Everest House, 2F, 46C, Chowringee Road, Kol-71, P.S. Shakespeare Sarani. 2) Oriental Insurance Company, The Senior Divisional Manager, Div-III, Kolkata, Thapar House, 25, Biplabi Trailokya Maharaj Sarani, Kolkata--700 001, P.S. Hare Street. 3) Oriental Insurance Company, Regional Manager, Div-VI, Kolkata, 4, Lyons Range, Kolkata-700 001, P.S. Hare Street. 4) The Finance Officer, Jadavpur University, 186, Raja S.C. Muilick Road, Jadavpur, Kolkata-700 032, P.S. Jadavpur. 5) Paramount Health Services Ltd., ICMARD Building, 8th Floor, 14/2, C.I.T. Road, Scheme-VIII M, Ultadanga, Kolkata-67 ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member. Order No. 1 4 Dated 2 9 / 1 2 / 2 0 0 9 . The present case filed by the complainant Alok Kr. Ghosh on 27.5.08 against the o.p. oriental Insurance Co. and two others praying for issuing direction upon the o.p. no.1 Oriental Insurance Co. to pay a sum of Rs.166544/- and compensation of Rs.1 lakh and litigation cost of Rs.1 lakh. Fact of the case in short is that the complainant for himself and his son andsife obtained Group Mediclaim Policy being policy no.PHS-01 KOL 6681216 JUY, 01 KOL 6681 217 JUY, 01 KOL 6681 218 JUY respectively through the o.p. no.4, the Finance Officer Jadavpur University from 1.3.1999 renewable every year. O.p. no.2 accepted his proposal and the complainant disclosed all material facts that the complainant was carrying a pace maker as per advice of the doctor which was implanted on 4.1.1992. The policy was renewed and o.p. no.2 assured insurance coverage to the extent of Rs.2 lakhs for the complainant, Rs.2 lakhs for his wife and Rs.1 lakh for his son and it was a cashless policy for all the times. According to the advice of the doctor he had to undergo replacement of pace maker during the period from 2.7.07 to 5.7.07 at Woodland Nursing Home and incurred expenses to the extent of Rs.183944.85 including the cost of pace maker. He is a beneficiary under CHNHB Association now merged with GIC wherefrom he realized the part amount of Rs.17400/-. But most arbitrarily o.p. no.2 did not reimburse the amount in favour of the nursing home in spite of repeated demands and the complainant accordingly had to pay in cash to the nursing home and the pace maker company. He submitted all his necessary documents to o.p. no.5 (TPA) through o.p. no.4 on 15.8.07. He informed all about the facts to the o.p. nos.4 and 5 but they repudiated his claim on the plea of pre existing disease. O.p. no.2 also most arbitrarily and illegally repudiated his claim which amounts to deficiency of service and finding no other alternative he has filed this case against the o.ps. On 4.8.08 o.ps. by filing a written statement have contested this case, contending interalia that the case is not maintainable in its present form and law and they have thoroughly denied the allegations of deficiency of service on their part. They have admitted that the complainant is the insured and the o.p. Oriental Insurance Co. is the insurer of the complainant and submitted the claim for reimbursement of the medical expenses incurred by him for his medical treatment for the replacement of pace maker implanted in 1992 in his chest long before the inception of the insurance policy and they have repudiated his claim on the ground of pre existing disease and according to the mediclaim the insurance company can take into account provided “the renewals have been continuous and without any break” and accordingly, the claim of the complainant is not admissible and payable under the policy-conditions. They have alleged that it is the wrong interpretation that the insurance company accepted his premium knowingly the implantation of his pace maker. He also discontinued his policy for 2004-05 but re-entered from 1.3.05. The Oriental Insurance Co. has given him continuity benefit of the existing group mediclaim and his claim for hospitalization etc. and they have also alleged as the disease is pre existing, therefore repudiation is justifiable and as CHNHBA has already been given the requisite reimbursement against the claim any other claim showing the same policy is unjustified and accordingly it falls within the exclusion clause no.4.1 and accordingly, the claim of the complainant is liable to be dismissed. Decision with reasons : - It appears on perusal of the record that on 11.8.08 this forum passed an order directing the o.ps. to make payment a sum of Rs.166544/- and Rs.5000/- as compensation and litigation cost of Rs.1000/- and unpaid cost of Rs.8000/- vide order dt.4.8.08. An appeal was preferred against the impugned order passed by this forum wherein the Hon’ble State Commission has been pleased to set aside the impugned order of this forum and allowed the appeal with a direction to proceed and decide the case considering the evidence of both the parties because it appears that both the parties submitted their pleadings and BNA but did not adduce any evidence. The complainant on 13.4.09 has filed his evidence on affidavit wherein he has stated about the facts which has been impleaded in his petition of complaint with regard to his mediclaim and payment of the same and implantation of pace maker and repudiation of his claim by the o.ps. on the ground of pre existing disease. The o.ps. have also filed their evidence on affidavit on 18.4.09 wherein the agreement entered between Jadavpur University for continuation of group mediclaim policy of the university with the o.ps. dt.17.2.05 and the terms and conditions of the policy w.e.f. 1.3.08 as modified on 22.1.08 and they have also taken into consideration of repudiation of mediclaim on the basis of the letter dt.8.4.08 of TPA Paramount Health Services Pvt. Ltd. and reply of Jadavpur University. In view of adducing evidence by both the parties the conditions of observations laid down by the Hon’ble State Commission in their order has been complied with. Either of the parties did not file any questionnaire and accordingly, the question of giving reply against the questionnaire does not arise at all. We have perused he documents filed by both the parties viz. the policy, exhibit-1 and realization part amount ofRs.17400/- by the complainant from CHNHB exhibit-1 and the letter of repudiation on the plea of pre existing disease, exhibit-3 etc. O.p. no.4 has only filed w/v. Admittedly, the petitioner is a policy holder of the mediclaim as referred to herein above and further admitted position is that he replaced the pace maker on the advice of the doctor. Only claim of the o.ps. is that as the disease is pre existing they repudiated the claim. It is now a settled principle of law as the mended given by the Apex Court of India that the plea of pre existing disease is no ground for repudiation of mediclaim. Implantation of pace maker to the complainant as he was suffering from heart disease is known to the o.ps. It is not understood that why the o.ps. did not inform the complainant that claim for change of pace maker is neither permissible nor acceptable to the o.p. Petitioner’s claim is that as the pace maker was required to be changed as it was not functioning properly and on that point his claim is not unjustified. We have also perused the memorandum of understanding (MOU). Apex Court of India has decided that Public Sector Insurance Co. cannot refuse to provide mediclaim cover policies on the ground of pre existing disease and if it is so denied it amounts to illegal and unconstitutional activity. In view of this position, we find merit in the case of the complainant and as such, complainant is entitled to get relief as ordered hereunder. Hence, Ordered, That the o.ps. are directed to make payment of Rs.1,66,544/- (Rupees one lakh sixty six thousand five hundred forty four) only to the complainant as cost incurred by the policy holder for implantation of the pace maker. The o.ps. are also directed to pay Rs.15,000/- (Rupees fifteen thousand) only as compensation and cost of Rs.5000/- (Rupees five thousand) only. The o.ps. are also directed to pay unpaid cost of Rs.8000/- (Rupees eight thousand) only in terms of the previous order dt.4.8.08 passed by this forum. So, the grand total of Rs.1,94,544/- (Rupees one lakh ninety four thousand five hundred forty four) only must have to be paid by the o.ps. positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct. Supply certified copy of this order to the parties on payment of prescribed fees. ____Sd-______ _____Sd-_______ MEMBER PRESIDENT | 
