DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

C. C.  CASE NO-477/2016

Date of Filing:                        Date of Admission:                            Date of Disposal:

26.07.2016                                  29.07.2016                                          29.01.2018

 Complainant:    Sri. Krishna Kumar Pandey, S/o ShyamDayal Pandey,

                             103, P.B. Ghat Road, Kamarhati, Alpin Diary, P.S.-Khardah,

                             Behind-Til Factory, Kolkata-700 058, Kamarhati (M),

                            District-North 24 Parganas, West Bengal.

Vs.

Opposite Parties:-         1. Star Health & Allied Insurance Company Limited,

                                              Registered Office- 1, New Tank Street, Valluvar,

                                              Kottam High Road, Nungam Bakkam, Chennai-600 034.

                                         2. Star Health & Allied Insurance Company Limited,

                                              Issuing Branch Office- Salt Lake City, AD-48, Sector-I,

                                             Salt Lake City, P.S.-Bidhannagar, C.C. Block,

                                            Kolkata-700 064, West Bengal.

                                       3. Zenith Super Specialist Hospital,

                                           A Unit of Jyotishman Multi-Disciplinary

                                           Hospital Private Limited, 9/3, Feeder Road, Belghoria,

                                           Rathtala, P.S.-Belghoria, Kolkata-700 056, West Bengal.

                                      4. The Calcutta Medical Research Institute,

                                          7/2, Diamond Harbour Road, Kolkata-700 027,

                                           P.S.-Alipore, West Bengal.

P R E S E N T           :-Sri. Bankim Chandra Chattopadhyay…………President.

                                 :-Smt. SilpiMajumder………………………………Member.

ORDER: 13

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not pay his legitimate insurance claim and praying for disbursement of the said claim to the Complainant for Rs.1,18,040/- as incurred towards the treatment.

The brief fact of the case of the Complainant is that he obtained anmedi-claim insurance policy issued by the OP-2 on 03.12.2014 covering the treatment of himself and his family members in the event of any hospitalization. The policy was valid for the period from 03.12.2014 to 02.12.2015 for sum assured of Rs.3,00,000/- in total. The Complainant used to pay premium regularly for Rs.8652/- in favour of the OP-1 and 2. At the time of obtaining the said policy the Complainant complied with all the formalities and had through all the tests and medical checking was made as per requirement of the OP-1 and 2. Being satisfied with the test reports the OP-1and 2 issued the said policy. The daughter of the Complainant namely Miss Suhana Pandey was suffering from fever, vomit and abdomen pain and due to such sufferings the Complainant visited the chamber of the doctor namely Dr. Dipankar Ghosh Hazra on 08.11.2015 for the treatment of his daughter. The doctor prescribed some medicines and advised to take absolute bed rest, but the patient did not feel better, so she was admitted at the OP-3 under Dr.D.Gupta on 12.11.2015 for better treatment and management. After clinical tests it was found and diagnosed that the patient was suffering from severe Jaundice and the patient got discharge on 14.11.2015. For treatment at the OP-3 the Complainant had to pay a sum of Rs.14,600/-. The physical condition of the patient was going to be more critical, so her father admitted her at the OP-4 on 14.11.2015 under Dr. Pavitra Chakraborty. Dr. Chakraborty prescribed some medical tests/examination and after the said tests it was observed that the patient was suffering from acute liver failure with heptic encephalopathy and the OP-4 prescribed some medicines, needed for the treatment of the daughter of the Complainant. For such treatment at the OP-4 the Complainant had to pay a sum of Rs.1,17,640/- on different counts. Thereafter the Complainant lodged an insurance claim for Rs.14,600/- on 20.11.2015 as incurred towards the treatment of his daughter at the OP-3 along with relevant treatment related papers and documents with the OP-2 I connection with the hospitalization benefit insurance policy. The Complainant received the said claim for Rs.14,600/- accordingly. The Complainant submitted another claim form on 28.11.2015 to the OP-2 regarding medical expenses as incurred by him for treatment of his daughter at the OP-4 for Rs.1,17,640/- along with relevant treatment related papers and documents. But the OP-1 and 2 did not show any intention to release the said claim amount, which he is legally entitled to get from the Insurance Company. Upon receipt of the claim form and the documents from the Complainant the OP-1 and 2 assured him that claim will be disbursed as early as possible in favour of the Complainant. The Complainant had to wait for few months to get response from the end of the OP-1 and 2, request was made by the Complainant, but the OP-1 and 2 did not pay any heed to his request. The Complainant went to the office of the OP-2 to know the reason for not disbursing his legitimate insurance claim, but the OP has failed to assign any valid reason in that context and further assurance was given, which indicates intentional and deliberate harassment on behalf of the OP-2. Being frustrated and harassed by the OP-1 and 2 the Complainant issued a notice on 23.05.2016 addressing the Branch Manager of Star Health & Allied Insurance Company seeking relief from the OP-1 and 2 and request was made by him for disbursement of the claim amount within 20 days from the date of receipt of the notice, but the OP-1 and 2 did not bother to give him any reply or take any positive initiative to do needful regarding disbursement of the claim amount, which proves that the OPs have harassed the Complainant intentionally with mal-intention.Having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OP-1 and 2 to disburse the insurance claim amount of Rs.1,18,040/- as incurred by him towards the medical expenditure of his insured daughter at the OP-4, to pay compensation to the tune of Rs.1,00,000/- due to harassment, mental agony and pain and litigation cost of Rs.10,000/- to him.

The petition of complaint have been contested by the OP-1 and 2 by filing conjoint written version contending that the Complainant did not come before this ld. Forum with clean hands as he has suppressed various matters where were required to be disclosed for the purpose of proper, effective and better adjudication of the instant complaint, but without doing so, the Complainant has misled the ld. Forum with ulterior motive to achieve unjust gain and to grab some money through an illegal manner. So on this score alone the complaint should go. The OPs have submitted that in the instant complaint the Complainant has miserably failed to mention the name of the post/chair in representative capacity, only juristic person have been made parties in this complaint. The Company itself cannot act and move and it should be represented by someone on behalf of the company, on this point also the complaint cannot be maintainable. The OP-1 used to provide service to its large number of subscriber/policy holders with high care, caution and diligently. The Complainant obtained an insurance policy from the OP-2 on 03.12.2014 covering the hospitalization benefit for himself and his family members, policy was issued in his favour. The policy was valid for the period from 03.12.2014 to 02.12.2015 for sum insured of Rs.3,00,000/- in total. The claim was lodged in the third year of the insurance policy. The Complainant admitted her daughter being the insured at the OP-4 on 14.11.2015 and she was discharged therefrom on 21.11.2015, diagnosis was made as acute liver failure with hepatic encephalopathy. The Op-1 received pre-authorization request from the treating hospital for the treatment of the insured to avail of the cashless facility. The same was authorized but the Complainant did not opt the said facility and subsequently the Complainant submitted the claim for reimbursement of medical expenses. On scrutiny of the documents it is revealed that the insured patient-daughter of the Complainant was operated upon for tumor on several times and as per the letter given by the insured the patient was also operated upon at the age of 3 months, 6months and also at the age of 4 years which is prior to inception of this policy. So the OPs directed the Complainant by issuing letter dated 13.01.2016 to submit the documents/details of the previous surgeries undergone by the insured patient, but the Complainant did not submit the same, which amount to non-operation on behalf of the Complainant with the Insurance Company. As per the condition no-4 of the policy document the insured is under the obligation to submit all the required documents and details as call for by the Insurance Company. It is submitted by the OPs that the insured-Complainant told that he did not disclose the treatment related details of the insured patient in the proposal form and informed that the relevant documents as sough for are not available with him. The OPs have mentioned that the Complainant on earlier obtained medical insurance policies for the period from 2012-13 & 2013-14 with TNIA and subsequently on 03.12.2014 purchased policy from these OPs. At the time of taking out the policy the Complainant did not disclose the actual state of health of his daughter in the proposal form, which amounts to misrepresentation of material facts. As per the condition no-8 of the policy document in case of any mis-representation or non-disclosure of material fact in the proposal form by the proposer and/or onhis/her behalf, the Insurance Company is not liable to make payment in respect of any claim. The mother of the patient informed the OPs that her daughter-insured was admitted at Green View Hospital before 4years for ailment in her leg and she had history of tumor, which was operated upon at the age of 3 months, 6months and also at the age of 4 years. According to the OPs the entire treatment were done prior to inception of this policy, hence the claim was repudiated and the same was duly informed to the insured-Complainant by issuing letter dated 25.03.3016. The Complainant knowing well the past medical history of her daughter did not disclose the same in the proposal form with mal-intention, for this reason the OPs are not under obligation to allow the insurance claim of the Complainant. As the Complainant has violated the terms and conditions of the policy, hence he is not entitled to get any claim as prayed for. As there is no deficiency in service as well as unfair trade practice on the part of the OP-1 and 2 in respect of repudiation of the claim as the same was duly intimated to the Complainant by issuing repudiation letter, hence these OPs are not also liable to pay any amount as compensation as sought for. According to the OP-1 and 2 the complaint is liable to be dismissed with exemplary cost.

The petition of complaint has been contested by the OP-3 by filing written version that the daughter of the Complainant being the patient got admission at the OP-3 with the complaints of vomiting, fever and abdominal pain on 12.11.2015, she was given conservative treatment and on 14.11.2015 the patient was transferred to the higher center for better management. At the OP-3 the bill was paid by the Complainant to its satisfaction. The OP-3 provided medical treatment to the patient as per their competence and in that respect  no allegation has been made out by the Complainant within the four corners of the complaint. Moreover as no allegation has been made against this OP and no compensation sought for, the complaint is liable to be dismissed with cost on the ground that the OP-3 has been made party in this complaint unnecessarily and in this manner the Complainant has harassed this OP.

The OP-4 has contested the complaint by filing written version contending that as no specific allegation is made against this OP, the complaint does not lie against the OP-4. The OP-4 provided treatment to the patient as far as practicable according to their competence and capability and in respect of providing treatment no allegation is made out by the Complainant within the four corners of the complaint. As the Complainant did not seek any relief from this OP, hence prayer is made by the OP-4 either for dismissal of the complaint or to expunge its name from the cause title of the complaint.

The OP- 1, 2, 3, and 4 have adduced their respective evidences on affidavit The Complainant has also adduced evidence on affidavit. The Complainant, OP-1 and 2 have filed several papers and documents in support of their respective contentions.

We have carefully perused the record; papers and documentsfiled by the Complainant and the OP-1 & 2 and heard argument advanced by the Ld. Counsel for the parties. It is seen by us that within the four corners of the petition of complaint no allegations have been made by the Complainant against the OP-3 and 4 and no relief  sought for from the said OPs, hence the complaint cannot succeed against the OP-3 and 4 and the complaint is dismissed against the said OPs.

Now we are to see as to whether there is any deficiency in service on behalf of the OP-1 and 2 or not. Admittedly the daughter of the Complainant namely Suhana Pandey being a insured got admission at the OP-3 due to her ailment and physical problem on 12.11.2015 and got discharge therefrom on 14.11.2015. For medical treatment at the OP-3 the Complainant had to incur expenses to the tune of Rs. 14,600/-. The claim was lodged by the Complainant for reimbursement of the aid amount and accordingly the said amount was paid by the Insurance Company. On 14.11.2015 the daughter of the Complainant was transferred at the OP-4 for better management as her physical condition was deteriorating day by day. At the OP-4 it was diagnosed that the daughter of the Complainant was suffering from acute liver failure with hepatic encephalopathy. At the OP-4 the Complainant incurred medical expenditure to the tune of Rs.1,18,040/-. Be it mentioned though the request for cashless facility was allowed by the Insurance Company, but the Complainant did not avail of the same and subsequently he lodged insurance claim for the said amount with the Insurance Company, but ultimately the claim was repudiated on the ground of non-submission of the past treatment related papers of the insured patient. The documents reveal that the mother of the insured patient had stated in the claim form that her daughterwas admitted at Green View Hospital before 4years due to ailment in her leg and she had history of tumor, which was operated upon at the age of 3 months, 6months and also at the age of 4 years. So it is clear that entire treatment were done prior to inception of this policy, but the said information was not provided by the Complainant in the proposal form at the time of taking out the policy. According to us as the Complainant concealed the actual state of health of his daughter-intending insured in the proposal form fraudulently, hence the Complainant is not entitled to get any amount towards insurance claim as sought for.

In this respect we may mention to the judgment passed by the Hon’ble Supreme Court, passed in the case of LICI & Others vs. Asha Goel (Smt) & Another, reported in (2001) 2 SCC 160, wherein the paragraph no-12 it is observed by Their Lordships as follows:-

12. “Coming to the question of scope of repudiation of claim of the insured or nominee by the Corporation, the provisions of Section 45 of the Insurance Act is of relevance in the matter. The section provides, inter alia, that no policy of life insurance effected after the coming into force of this Act, shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. The proviso which deals with proof of age of the insured is not relevant for the purpose of the present proceeding. On a fair reading of the section it is clear that it is restrictive in nature. It lays down three conditions for applicability of the second part of the section namely: (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy-holder; and (c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. Mere inaccuracy or falsity in respect of some recitals or items in the proposal is not sufficient. The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of misstatements of facts. The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any mis-statements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”

In this respect we may also mention to the judgment passed by the Hon’ble Supreme Court in the case of Mithoolal Nayak vs. LICI, reported in 1962 AIR (SC) ) 814.

In our view the abovementioned judgment is applicable in the case in hand as the Complainant being the father of the insured daughter, who filled up the proposal form on behalf of his daughter at the time of taking out the policy had fraudulently suppressed the material fact in the proposal form relating to the state of health of his daughter, having exclusive knowledge, hence the Complainant is not entitled to get the insurance claim as sought for. The mother of the insured patient disclosed in the document that her daughter was operated upon for several times. The period of such operations indicates that prior to inception of this policy operations were done, but the Complainant did not disclose the same in the proposal form. As based on this point the OP-1 and 2 are empowered to repudiate the claim of the Complainant and as the same was duly been intimated to the Complainant by issuing repudiation letter, hence we do not find any deficiency in service on the part of the OP-1 and 2. So the said OPs have no obligation to pay any amount towards compensation as sought for by the Complainant. Hence the complaint fails.

Going by the foregoing discussion hence it is ordered that the complaint is dismissed on contest. Considering the facts and circumstances of the complaint there is no order as to cost.

Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.      

Member                                                                                             President

Dictated & Corrected by me