Shri Debasish Bandyopadhyay,  Hon’ble President.

Brief fact of this case:- This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant describing that the complainant has introduced a policy of mediclaim in the year of 2001-02 vide policy no. 030704/48/01/00910 jointly with his spouse covering sum of Rs. 80,000/- each and he had discharged yearly premium of mediclaim policy sum of Rs. 2045/- with applicable enhancement from 2001 to 2013-14 without any delay and default and he had suddenly fallen ill and got admitted at Belle vue clinic on 31.01.2017 as advised by the doctor and after administrating various Medical investigation Dr. S.B. Roy Interventional cardio Surgeon implanted double chamber pacemaker on 31.01.2017 and discharged on 03.02.2017 and the complainant incurred expenditure of Rs. 2,65,877/- of which Rs. 2,00,000/- towards the cost of pacemaker and the complainant paid the entire cost out of fund facilitated by his relatives and friend and since discharge on 3.2.2017 the complainant brought the situation under the notice of opposite party no. 2 through E-mail dt. 6^th February, 2017 and the complainant to reimburse the amount forwarded the letter to the branch manager United India insurance company on 16.2.2017 which was duly acknowledged by the opposite party no. 2 on 17.2.2017 and the opposite party no. 3 addressed the complainant and placed 1^st (quarry) letter dt. 22.03.2017 which was duly answered by the complainant on 7.4.2017 and the opposite parties put on demand more papers relating to the hospitalization although all the original documents have already been submitted and the claim was declined on account of reasons shown therein as “looking at the inception date of policy 7.1.2015 and nature of the disease (Right bundle block) with pre existing symptoms HTN since 2014 so far per policy terms and condition the claim is not admissible under clause no. 4.1 (Family Medicare Policy) and it is not unlikely after the prolong period of inception of policy any person may develop any like disease which the complainant do have and the complainant issued the cheque 1 month later of the scheduled date by mistake towards Mediclaim for the year 2014-2015 and since inception of the policy 2001-2002 the undersigned has punctually paid the premium in time and unfortunately the policy for the year 2014-2015 was delayed for 1 month only and the previous policy incepted in the year 2001-2002 continued till date and renewed on 2015-2016 which still remain valid and the complainant paid Rs. 40,000/- for consecutive 3 years since 2015 to 2018 and the complainant tried to resolve the dispute and forwarded a legal notice through his ld. Advocate on 6.7.2018 which was duly acknowledged and replied by the ld. Advocate of opposite party no. 2 dt. 31.7.2018. The cause of action arose on 31.01.2017 when the complainant was admitted to the Belle Vue Clinic and the cause of action still subsisting and strengthening day by day.

            Complainant filed the complaint petition praying direction upon the opposite parties to pay sum of Rs. 1,00,000/- and to pay a sum of Rs. 1,00,000/- for professional loss and harassment and to pay a sum of Rs. 50,000/- for mental agony and severe setback in day to day work for the unlawful act of the opposite parties and to pay a sum of Rs. 50,000/- for deficiency in service and to direct the opposite parties to change the profession of complainant inserting self employed instead of housewife and to give any other relief or reliefs which deem fit and proper under the law and equity and to pay all costs of this case.

            Defense Case:- The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party submits that the contract of insurance is a contract on good faith and on the information as furnished in proposal form the policy being no. 037042814P108371743 for the period from 13.35 hrs on 7.1.2015 to midnight on 6.1.2016 was issued in favour of the complainant and that policy under that circumstances was a first policy. So the opposite party insurance company has rightly repudiated the claim quoting “Looking at the inception date of the policy (7.1.2015) and nature of the disease (Right Bundle Block) with pre-existing symptom HTN since 2014. So, as per the policy terms and conditions the claim is not admissible under clause no. 4.1 (Family Medicare Policy)” and in clause no. 4.1 of the policy conditions it has been explicitly stated “Pre-existing disease will be covered after a waiting period of 48 months” and as the nature of the disease of the complainant was “Right Bundle Block” with pre existing symptom HTN the claim was repudiated on 14.6.2017 and there is no scope for further consideration of the claim and as per terms and conditions of the policy the Insurance Company is bound to pay the treatment bills and other expenses as stated therein and the complainant is entitled to reimbursement of that medical expenses which are permissible under the terms, conditions, limitations, exclusions and capping thereof and the policy under which the claim has been lodged is never a continued policy as the continuity of the policy was broken because non-payment of premium for the continuing policy and in that circumstances as the policy under which the claim has been lodged is an fresh policy having a locking period of 48 months for getting claim for treatment of any pre existing disease and the complainant is never entitled to any claim under this policy and it is clear and admitted that the complainant failed to pay the premium for the year 2014-2015 and hence on the expiry of that policy the next policy i.e. the policy under which the claim is lodged is a fresh and new policy and for getting a renewed policy the premium in order to get the continuity of the previous policy has to be paid before the expiry of the policy in continuation otherwise on a fresh proposal and on payment of the premium when a policy is generated i.e. always a fresh policy and locking period of 48 months for getting reimbursement of any medical expense for any pre existing disease there will be a locking period of 48 months and for nonpayment of the premium before the expiry of the previous policy for the year 2015-2016 was a fresh policy and hence that policy was never a continued policy since 2001-2002. Hence this opposite party prayed to dismiss the case.

Despite receiving notice opposite party nos. 1 and 3 did not appear before this Commission. So, the proceeding runs ex parte as against them vide order no. 5 dt. 1.7.2019.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no. 2.

            The answering opposite party no. 2 filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 2 filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   In this regard it is important to note that the contesting op no. 2 has not challenged the maintainability and jurisdiction point by filing any separate petition in this case and op side has only pleaded that this case is not maintainable in the written version. But facts remain that this matter was neither pressed nor had given any emphasis for hearing of the maintainability matter at the initial stage of this case. Considering all these aspects and after close scrutiny of the facts and circumstances highlighted in the pleading and also after scanning the evidence on record it appears that this case is maintainable and this D.C.D.R.C. has jurisdiction and there is cause of action for filing this case by the complainant. More so, it appears from the materials of this case record that the complainant started the mediclaim policy under the opposite parties since the year 2001-02 and it is continued upto 2013 and after a disputed break of the year 2014-15 the complainant has also continued the said mediclaim policy under the opposite parties. In view of this position the provision Section 2(1)(e) of the Consumer Protection Act, 2019 is very important. According to the provision of the above noted Section and also according to the provision of Section 2(7) Consumer Protection Act, 2019 the complainant is a consumer in the eye of law.

   Thus, the above noted three points of consideration are decided and/ or disposed of in favor of the complainant.

   The point no. 4 is related with the question as to whether there is any deficiency in service on the part the opposite parties or not and point no. 5 is connected with the question as to whether complainant is entitled to get any relief or not. These two points of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly. For the purpose of deciding these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the oral and documentary evidence on record. After going through the oral and documentary evidence on record it appears that the complainant is a policy holder of mediclaim policy under the opposite parties and the said policy was initiated by the complainant in the year 2001-2002. It is also admitted fact that the said policy continued for a long time but the said policy was discontinued in the year 2014-15 as policy premium was not paid in due time. There is no dispute on the point that a fresh policy was issued in favour of the petitioner on 7.1.2015 on his making payment of premium and on his execution of a fresh proposal. It has also not been controverted that the subsequent policy was in existence when the complainant was admitted at Bellevue Clinic situated at 9, Dr. U.N. Bramhachari Street, Kolkata 700017 on 31.1.2017 at 12:30 a.m. as per advice of Dr. Udayan Dasgupta. There is also not any dispute over the issue that complainant had to undergo various medical investigation and subsequently the Dr. S.B. Roy implanted Double Chamber Pacemaker on 31.01.2017 and thereafter the complainant was admitted in the said clinic and he was discharged on 3.2.2017.

   On the background of the above noted admitted facts and circumstances the opposite party no. 2 who is contesting this case has raised the question that the opposite party Insurance Company has rightly repudiated the claim of the complainant on the ground “Looking at the inception date of the policy (7.01.2015) and nature of the disease (Right Bundle Block) with pre-existing symptom HTN since 2014. So, as per the policy terms & conditions the claim is not admissible under clause no. 4.1 (Family Medicare Policy).” Ld. Advocate for the opposite party at the time of argument reiterated this point time and again and even in the brief notes of argument this point has been categorically described. Over this issue ld. Advocate for the complainant side pointed out that the mediclaim policy of the complainant is a continuing policy and it was valid even upto the date of hospitalization of complainant and implantation of Double Chamber Pacemaker and for that reason the complainant had to incur expenditure of Rs. 2,65,877/- out of which Rs. 2,00,000/- was paid towards the cost of pacemaker and the complainant had to pay the entire cost out of the fund facilitated by his relatives and friend.

   Now the question is whether the above noted plea and argument of the opposite party no. 2 and the point of argument highlighted by the complainant side are admissible in the eye of law. In this regard it is important to note that the insurance policy is a contractual obligation in between the parties entered into this said insurance policy and in the event of failure of the insurance company to comply with the contractual obligation to release the claim amount after the incident amounts to deficiency in service. It is also the settled principal of law that for the deficiency in service the complainant is also entitled to get compensation for mental agony and harassment and also entitled to get litigation cost. This principle of law has been observed by Hon’ble Delhi State Consumer Dispute Redressal Commission and it is reported in 2022(2) CPR 13(Del.).

   Thus, it is crystal clear that the above noted plea and/ or argument of the opposite party no. 2 cannot be accepted. As there was mediclaim policy no.  037042814P108371743 was in existence on 31.1.2017 and at the time of implantation of Double Chamber Pacemaker to the complainant on 31.1.2017, the opposite party no. 2 along with other opposite parties of this case are in contractual obligation to release the claim amount in favour of the complainant.  

            Another important point of contention and argument raised by the ld. Advocate of the opposite party no. 2 is that the complainant concealed the factum of pre existing disease (HTN) for which he had obtained medical treatment and the complainant was suffering from HTN for a long time and the policy under dispute was the subsequent policy and the period of 48 months was not over at the time of medical treatment by the complainant and for that reason the opposite party no. 2 has rightly repudiated the claim of the complainant. Over this issue Hon’ble State Commission, Delhi in appeal no. A-482/2005 disposed of on 1.8.2008 has been pleased to observe the following points:-

1. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
2. If insured had been even otherwise living normal and healthy life3 and attending to his duties and daily chores like any other person and is not declared as a disease person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
3. Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
4. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.

Thus, it is crystal clear that the attempt on the part of insurer (op no. 2 along with other opposite parties) to repudiate the claim for such non discloser is neither permissible nor is exclusion clause invocable. So the Clause No. 4.1 which is referred by opposite party side is also not acceptable in this case.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalized or undergone operation is not a pre-existing disease. Is a person conceals the factum of his hospitalization of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies 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 the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that recently the Hon’ble Apex Court has deprecated the practice of Insurance Companies for rejecting the claims in respect of mediclaim policies on the ground of pre-existing disease.

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no. 2858 of 2017 decided on 18^th April 2018 has also been pleased to observe almost similar views/ legal principle which have been stated above.

   In this regard it is very important to note that the opposite party no. 2 along with other opposite parties have not taken any steps for proving their plea that HTN of complainant leads to implantation of Double Chamber pacemaker to the complainant on 31.1.2017. In this regard it is also vital to note that the opposite party no. 2 and other opposite parties also have not prayed before the District Forum/ Commission, Hooghly for appointment of expert in the matter of passing opinion that suffering HTN by complainant leads to implantation of Double Chamber Pacemaker of the complainant.

   All the above noted legal views of Hon’ble State Commission, Delhi and Hon’ble National Consumer Disputes Redressal Commission, New Delhi and the above noted discussion goes to show that the argument and point of contention of opposite party no. 2 which has been stated above are not at all acceptable in the eye of law.

   A cumulative consideration of the above noted discussion goes to show that there is deficiency in the service on the part of the opposite parties and the failure of the Insurance Company (op no. 2) to comply with the contractual obligation in the matter of releasing the claim amount of the complainant of this case also amounts to deficiency in service and so the complainant is entitled to get the insured amount of Rs. 1,00,000/- and also entitled to get an award of Rs. 1,00,000/- for professional loss and harassment and also for mental agony and severe set back in day to day work for the activities of the opposite parties and  the complainant is also entitled to get Rs. 50,000/- for deficiency in service by the opposite parties.

Hence,

it is

ordered

that the complaint case being no. 16 of 2019 be and the same is allowed on contest against opposite party no. 2 and allowed ex parte against other opposite party nos. 1 and 3.

   The complainant is found entitled to get the insured amount of Rs. 1,00,000/- and also entitled to get an award of Rs. 1,00,000/- for professional loss and harassment and also for mental agony and severe set back in day to day work for the activities of the opposite parties and  the complainant is also entitled to get Rs. 50,000/- for deficiency in service by the opposite parties.

   The opposite party no. 2 and other opposite parties are directed to pay the said above noted amount of Rs. 2,50,000/- to the complainant within 2 months from the date of this final order. Otherwise complainant is given liberty to execute this order as per law.

In the event of failure to comply with the order the opposite parties shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties or their ld. Advocates/Agents on record by hand under proper acknowledgement or sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.