For the Complainant                       -  Sri Pradip Kumar Giri, Advocate

For the OPs                                      -  Sri AshisChakraborty, Advocate

FINAL ORDER/JUDGEMENT

SMT. SAHANA AHMED BASU, MEMBER

This is an application u/s. 12 of the C.P. Act, 1986 .

Brief facts of the case are that the complainant obtained a family mediclaim policy “Senior Citizen Red Carpet Health Insurance Policy being No. P/191116/01/2018/005389” issued by OP2 Star Health and Allied Insurance Co .Ltd on 05.09.2012 and the said policy was renewed time to time till the period from 28.09.2017 to 27.09.2018. Sum insured of SuchandanPorel and BhagyabatiPorel was Rs.1,00,000/-. From the inception of the policy till 11.12.2017 no claim was lodged by the complainant. On 12.12.2017BhagyabatiPoral , the mother of the complainant was admitted in N H Narayana Super Speciality Hospital for treatment of fever with lower abdominal pain with burning meetuaration with nausea, loose stool and discharged on 16.12.2017. Complainant incurred Rs 43,904/- for treatment of his mother. Complainant lodged claim to the OPs for reimbursement. But the OPs repudiated the claim vide letter dated 15.03.2018 on the ground of suppressing of facts and pre-existing disease and advised to cancel the policy and to open a new policy.  On 24.04.2018 the OPs have cancelled the policy. Again on 13.06.2018 the OPs restored the policy. According to the OPs total admissible claim is Rs.28,683/- out of total claim but the OPs credited Rs.14,342/- to the Bank Account of the complainant. The OPs arbitrarily deducted the claim amount. The act of the OPs is tantamount to deficiency in service and unfair practice. Hence, the consumer complaint.

The OPs have contested the case by filing W.V contending inter-alia that the consumer complaint is bad for mis-joinder and/or non-joinder of necessary parties and this Forum have no jurisdiction to try, entertain and adjudicate the case. The specific case of the OPs is that the OP2 issued a policy “Senior Citizen Red Carpet Health Insurance Policy” in favour of BhagyabatiPorel. The said policy was time to time renewed and valid for the period from 28.09.2017 to 27.09.2018. Insured BhagyawatiPorel was admitted to N.H. NarayanaSuperspeciality Hospital, Andul, Howrah with UTI, Diabetes, Kidney disease with CKD, hypertensive, fever with lower abdominal pain and loose stool and discharged on 16.12.2017. Complainant submitted claim of Rs.43,904/- as reimbursement. Policy was taken suppressing the pre-existing disease for which coverage of policy of BhagyabatiPorel was cancelled w.e.f. 24.04.2018. A new policy coverage was issued in the names of rest persons with same terms and conditions and difference premium of Rs.5,250/- was returned to the insured vide demand draft dated 04.09.2018. Subsequently, policy was restored in respect of BhagyabatiPorel and claim of Rs.14,341/- was credited to the Bank Account of the complainant as per guideline of IRDA. Thus, the OPs are not deficient in rendering service. Accordingly, the OPs have prayed for dismissal of the complaint with exemplary cost.

Decision with Reasons

Both parties produced evidence through affidavit in support of their respective averments. Parties also relied certain documents. Both parties have also filed their Brief Notes of Argument.

We have heard the Ld. Advocate of both sides and have carefully gone through the evidence and documents on record. It is also an admitted position that complainant obtained a family mediclaim policy “Senior Citizen Red Carpet Insurance Policy” from the OP2.  Thesaid policy was renewed time to time and was inforce for the period from 28.09.2017 to 27.09.2018. Fact remains that insured BhagyabatiPorel was admitted in N.H.Narayana Super Speciality Hospital, Andul, Howrah with UTI vulvovagnitis, Diabetes mellitus and Chronic Kidney Disease. Insured was discharged on 16.12.2017. Complainant submitted the claim of Rs. 43,904/- for reimbursement butthe OPs repudiated the claim on the ground of non-disclosure of pre-existing disease and the policy in respect of BhagyabatiPorel was cancelled. It is also true that subsequently, the OPs restored the policy and settled the claim to the tune of Rs.14,341/-.

We have very carefully perused the terms & condition of the policy. Clause-3 of the terms & condition of the policy runs as follows:-

The Company shall not be liable to make any payments under this policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of:

1. Pre Existing Diseases as defined in the policy until 12 consecutive months of continuous coverage have elapsed, since inception of the first policy with any Indian Insurer.
2. Any disease contracted by the insured person during the first 30 days from the commencement date of this policy. This exclusion shall not apply in case of the insured person having been covered under any health insurance policy (Individual or Group Insurance Policy) with any of the Indian Insurance companies for a continuous period of preceding 12 months without a break.
3. During the first two years of continuous operation of this Senior Citizens Red Carpet Health Insurance Policy any expenses on

1. Cataract, Glaucoma, Diseases of the anterior segment and posterior segment of the eyes. All diseases related to ENT, Diseases related to Thyroid, Prolapse of intervertebral disc (other than caused by accident), Varicose veins and Varicose ulcers, all diseases of Prostate, Stricture Urethra, all types of Hemia, Varicocele, Hydrocele, Fistual/Fissure in ano, Hemorrhoids, Pilonidal Sinus and Fistula, Rectal Prolapse, Stress Incontinence and Congenital Internal disease/defect.
2. Gall bladder and Pancreatic diseases and all treatments (conservative, interventional, laparoscopic and open) related to Hepatopancreato-biliary including Gall bladder and Pancreatic calculi. All types of management for Kidney and Genito-urinary tract calculi.
3. All treatments (conservative, interventional, laparoscopic and open) related to all diseases of Uterus, Fallopian tubes, Cervix and Ovaries, Dysfunctional Uterine bleeding, Pelvic inflammatory diseases, Benign breast diseases.
4. Conservative, operative treatment and all types of intervention for diseases related to Tendon, Ligament, Fascia, Bones and joint  [other than caused by accident].
5. Degenerative disc and Vertebral diseases including replacement of Bones and Joints and Degenerative diseases of the Musculoskeletal system
6. Subcutaneous benign lumps, Sebaceous cyst, Dermoid cyst, Lipoma, Neurofibroma, Fibro adenoma, Gangilon and similar pathology
7. Any transplant and related surgery

This waiting period shall not however apply in the case of the Insured person/s having been covered under any Individual health insurance scheme with any of the Indian Insurer for a continuous period of preceding 24 months without any break.

Ld. Advocate for the OPs relied upon such terms & conditions at the time of argument. Insured was medically treated by Dr. Sanjay K. Shah, who issued a certificate dated 04.03.18 to that effect  that BhagyabatiPorel was detected with CKD in November 2015 . Therefore, we discard the allegation made by the O.Ps that the insured was having CKD at the time of the inception of the policy. Moreover, in the policy document the Pre-existing Disease is defined as “Pre – Existing Disease means any condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms, and/or was diagnosed, and/or received medical advice /treatment within 48 months prior to the insured person’s first policy with any Indian insure.”  The policy was incepted on 05.09.2012 and the claim was lodged on 23.12.2017 i.e. after lapse of 60 months or 5 years. Thus, the Insured does not come under the abovementioned definitions .Therefore, we are of the opinion that the O.P.s were deficient in providing proper service to the Insured which tantamounts to unfair trade practice on their part.

Ld. Advocate for the complainant has taken us through the documents on record which shows that the O.Ps have intimated the complainant vide letter dated 13.06.2018 that on the representation regarding reconsideration of  the said cancelled policy is restored. the BILL ASSESSMENT SHEET reveals that after deducting the less deductibles amount of Rs.15220/- from the claim amount of Rs. 43903/- the net admissible amount is Rs.28683/-.  The OPs further deducted Rs. 14342/- as Co-Pay amount i.e. 50% of the admissible amount and credit Rs.14,342/- to the Bank Account of the complainant  through NEFT. The complainant raised objection against piece-meal  payment through email. Ld Advocate of the O.Ps argued that insurance is a deal with some terms and conditions which are binding upon both the parties. It is mentioned in the clause 5 of the Condition of the policy that “This policy is subject to co-payment of 50% of each and every claims arising out of Pre-Existing Diseases and 30% of each and every claim.” A report was published in the The Hindu, a reputed newspaper, on17.08.2009 with the heading ‘Insurance firm cannot exploit pre-existing disease clause : court’ where it is reported that the in a complaint case filed by Lalita N. Shetty against Star Health and Allied Insurance Company the Hon’ble 1st Additional Bangalore District Consumer Disputes Redressal Forum “relied on the ruling of the Hon’ble NCDRC (2008 CTJ 347 ) which said that most of the people were totally unaware of the symptoms of the disease they were suffering . Hence insurance companies could not be allowed to take advantage of exclusion clause of pre – existing disease in a mediclaim policy.” Considering this and all other aspects it appears before us that the complainant is entitled to get back Rs 14342/- as prayed for.

As such the complaint case succeeds.

O R D E R E D

The complaint case be and the same is allowed on contest in part against the O.Ps with the litigation cost of Rs 5000/-.

O.Ps are jointly and severally directed to pay the balance amount of Rs.14342/- along with litigation cost to the complainant.

O.Ps are further directed to pay Rs. 10000/- as compensation.

The above payments should be paid within 60 days in terms of the above order i.d. the complainant may put the order in execution under the specific provisions of Consumer Protection Act, 1986.