DATE OF FILING : 26-03-2013.
DATE OF S/R : 16-05-2013.
DATE OF FINAL ORDER : 30-09-2013.
Bandana Adak,
wife of Tapan Adak,
residing at village – Madhupur, P.O. Kharua,
P.S. Gurap, District – Hooghly,
PIN – 712308.-------------------------------------------------------------------- COMPLAINANT.
- Versus -
1. Star Health & Allied Insurance Company Ltd.,
represented by its Branch Manager,
having its office at 75C, Park Street ( 6th f loor),
Kolkata 700016.
2. National Insurance Company Ltd.,
represented by its Branch Manager,
having its office at Chaulpatt, Tarekswar,
Hooghly – 721410.
3. The Divisional Manager,
National Insurance Company Ltd.,
registered and head office at
3, Middleton Street,
Kolkata – 700071.
4. Samaresh Paul,
an agent of Natioinal Insurance Company Ltd.,
residing at village – Kotalpur, P.O Balidaha,
P.S. Gurap, Distict – Hooghly,
PIN – 712303.----------------------------------------------------OPPOSITE PARTIIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986
wherein the complainant has prayed for direction upon the o.ps. to pay Rs. 20,000/- as per claim together with Rs. 2,50,000/- as compensation and Rs. 10,000/- as litigation costs as the O.Ps. repudiated the medi claim benefit of the complainant for Rs. 20,000/- on 19-02-2013 on the plea of preexisting disease.
2. The o.p. no. 1 in the written version contended interalia that the claim
application is defective, malafide and suffers from suppression of material facts; that the complainant did not come to his office for renewal of the policy.
3. The O.P. nos. 2 & 3 in their written version contended interalia that the patient
as per doctor’s prescription dated 02-03-2012 was suffering from pain in abdomen for last two days and the policy was effective since 09-03-2012 and as such the disease was preexisting ; that the repudiation of the claim was justified.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.P. nos. 1 & 2 ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. Admittedly the policy
was purchased by the complainant on 10-03-2011 from O.P. no. 1 through its agent and the family of the complainant including herself and her husband and two dependent children namely their daughter and son were insured. On the date of commencement of the policy the complainant paid Rs. 4,054/- on 10-03-2011 and the sum insured was Rs. 2 lacs and it was valid from 10-03-2011 to 09-03-2012. It is the case of the complainant that due to non availability of the O.P. no. 4 he could not renew the policy on and from 2012. But as per advice of the agent the complainant on 27-02-2012 submitted a photo copy of the previous certificate viz. certificate of O.P. no. 1, four copies of photograph of her family through her bank namely Indian Overseas Bank situated at Howrah by a cheque being no. 93447 dated 20-02-2012 to the National Insurance Company i.e., O.P. no. 2 and the amount was duly deducted from the banker of the complainant.
6. On and from 2nd March, 2012 the daughter of the complainant fell seriously ill
due to acute pain in her abdomen. On 03-03-2012 the complainant went to Dr. Mainul at Burdwan who advised operation But due to ensuing Higher Secondary Examination the complainant asked the doctor if the operation could be done after her H.S. Examination. After conclusion of the H.S. Examination the daughter of the complainant was admitted in Dream Land Nursing Home on 04-04-2012 and her appendices was operated and she was in the Dream Land Nursing Home from 04-04-2012 to 07-04-2012 and the complainant had to bear a cost of Rs. 20,000/- for such operation and her stay in the nursing home. After recovery the complainant submitted all the papers before o.p. no. 2 and ultimately her prayer was repudiated with the plea of preexisting disease.
7. Now pertinent question creeps in if the O.P. no. 2 insurance company was
justified in repudiating the claim with the plea of preexisting disease.
8. Ld. Lawyer for the O.P. no. 2 argued that in view of clause 4.1 of the policy
the prayer of the complainant cannot be entertained as the disease was preexisting and therefore it comes within the purview of the exclusion clause. He further argued that the policy was taken for the first time on 09-03-2012 and the hospitalization was made on 04-04-2012 which is within 30 days from the inception of the policy and as such it was fit to be repudiated.
9. Arguably if it is established that the O.P. nos. 2 & 3 insurance company has no
tie up with the O.P.no. 1, even then the O.Ps. cannot throw away the claim of the complainant as a rubbish paper. This is because the exclusion clause of 4.1 cannot be invoked in the instant case as the enlargement of appendices cannot be foreseen before- hand. Though the policy was issued on 09-03-2012 the complainant as per advice of the O.P. no. 4 submitted all her previous papers to the office of the O.P. no. 2 together with the cheque being no. 93447 dated 20-02-2012 which was encashed from Indian Overseas Bank by the O.P. no. 2 and necessary deduction was also made from the account of the complainant. The complainant being a house wife had no expertise knowledge if the O.P. no. 1 has any tie up with the O.P.no. 2 or not. She was confident that her previous policy with the O.P. no. 1 Star Health dated 10-03-2011 till 09-03-2012 shall be taken into account by the O.P.no. 2 if renewed. With this intention, she sufficiently ahead of the expiry of the policy on 09-03-2012 submitted all her papers together with the cheque on 20-02-2012 to the O.P. no. 2. Accordingly the policy was issued on 09-03-2012 by the O.P. no. 2. It is pertinent to mention here that the complainant was sure that the earlier policy has been renewed by the O.P. no. 2. She never knew that the policy issued by the O.P. no. 2 was a new one rather a continued policy. Naturally we trace no criminal intention in the conduct of the complainant. We also do not find any ill motive in the conduct of the complainant for reaping benefit of medi claim by way of suppressing the preexisting disease. The embargo imposed by the O.P. no. 2 for 30 days from the inception of the policy i.e., 09-03-2012 is just unilateral and such argument is just a subterfuge only to deprive the complainant from a genuine claim. We are of the view that the enlargement of appendices cannot be forecast by a common person unless the pain starts. Naturally there cannot be any reason for repudiation of the claim in the garb of preexisting disease by invoking the clause 4.1 of the policy. We are of the further view that there was no suppression of fact on the part of the complainant and the amount claimed is not very excessive rather a paltry amount of Rs. 20,000/-.
Therefore, it is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 87 of 2013 ( HDF 87 of 2013 ) be and the same is allowed on contest with costs as against the O.P. nos. 2 & 3 and dismissed against O.P. no. 1 without cost and dismissed ex parte without cost against O.P no. 4.
The O.P. nos. 2 & 3 be directed to release the medi claim of Rs. 20,000/- together with interest @ 10% per annum from April, 2012 till full payment.
The o.p. nos. 2 & 3 be further directed to pay a compensation of Rs. 10,000/- for causing mental pain and agony to the complainant and a sum of Rs. 5,000/- as litigation costs.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( T.K. Bhattacharya ) ( T.K. Bhattacharya )
President, C.D.R.F.,Howrah. President, C.D.R.F.,Howrah.
( Jhumki Saha ) ( P. K. Chatterjee )
Member, C.D.R.F.,Howrah. Member, C.D.R.F.,Howrah.
