Samaresh Kumar Mitra, Presiding Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant purchased one Mediclaim Policy i.e. “Family Health Optima Insurance Plan” from the Opposite Party No. 1 through the Opposite Party No. 2 vide Policy No. P/190000/01/2017/014353 and the policy period 01/02/2017 to 31/01/2018 and the sum insured being Rs.3,30,000/- for himself, his wife and daughter on payment of net premium Rs. 6,500/- only.
That during the continuance of said policy wife of the complainant feeling severe pain due to enlargement of both breast lump under bilateral auxiliary and when there was no sign of relief and the pain became acute and intolerable she consulted with her physician Dr. Saurav Dey at Baidyapara on 10.01.2018 for her treatment and consultation and as per advise of the doctor the wife of the complainant visited Dr. Nirmalya Bagchi at Charnock hospital on 12.01.2018 and a few tests were done on the same day for diagnosis & treatment.
The complainant also states that on 24/01/2018 his wife admitted and operation was done on the same date and discharged on 25/01/208 from Charnock Hospital and also states that the complainant consulted the opposite party no.3 regarding the operation and they assured the complainant that they will get the cashless facility as the policy is 7 year old hence cover all treatments and on 30/01/2018 submitted all the necessary documents to the opposite party no.3 for reimbursement for the said claim.
The complainant also states that finding no other alternative on 20/03/2018 complainant filed a complaint through email to the office of the Insurance Ombudsman and stated the all of the fact on 07/06/2008 and on 25/06/2018 reminder was given but ultimately no initiative was taken by the said office. According to the complainant, the opposite party intentionally repudiated the legitimate claim of the on the ground that the insured has been diagnosed with B/L auxiliary Tail at Breast which is not admissible under the policy, under exclusion/condition number 3.20. It is also stated by the complainant that the declaration issued by the Dr. Nirmalya Bagchi of Charnock hospital whereas it is clear that the said “this operation should not be considered a Cosmetic Surgery”.
For the aforesaid unauthorized acts and willful inaction and omission on the part of opposite parties the complainant has been suffering gross mental agony, anxiety and harassment along with huge monetary loss due to non receiving his rightful and just claim till now.
Complainant filed the complaint petition praying directions upon the opposite parties to pay sum of Rs. 51,560/- towards settlement of said mediclaim along with interest @ 18% with effect from 25.1.2018 and to pay sum of Rs. 2,00,000/- towards compensation for mental agony, anxiety and harassment due to deficiency in service on the part of the opposite parties and to pay sum of Rs. 20,000/- towards costs of litigation and to pass such other orders which the complainant is entitled under law and equity.
The opposite parties contested the case by filing written version denying inter-alia all the material allegations as leveled against him. These opposite parties submit that their Zonal office Kolkata had issued the Family Health Policy covering the complainant, his wife and his child for the floater sum insured of Rs. 3,00,000/- under the aforementioned policy numbers and the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the policy schedule and the policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy and the complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form and the insured submitted a request for pre-authorization for cashless treatment on 24.1.2018 and on scrutiny of claimed documents it is observed that the insured patient has been diagnosed with B/L AXILLARY TRAIL AT BREAST and the same is an excluded/ condition/ procedure under Exclusion no. 3(20) and thus the said claim was denied vide letter dt. 25.1.2018 and subsequently the insured submitted a claim for reimbursement of medical expenses on 8.2.2018 and on scrutiny of the submitted documents it is observed that as per the discharge on request report of the treating hospital the insured patient has undergone treatment for EXCISION OF BILATERAL AXILLARY TAIL AT BREAST which is cosmetic correction and as per the Exclusion no. 3(20) of the policy the company is not liable to make any payment in respect of any expenses incurred at hospital for cosmetic or aesthetic treatment of any description and so the claim was repudiated vide letter dt. 12.2.2018 and the insured was admitted primarily for investigation and evaluation purpose and thus the claim is not payable as per EXCLUSION NO. 3(20) and the insurance policy issued to the complainant under which the dispute has been raised is governed by limits of liability as per its clauses and the maximum quantum of liability under the terms of the policy shall be Rs. 47,749/- and the opposite parties humbly prayed to reject the complaint petition outright for the ends of justice and/ or may further be pleased to pass any such order/ orders as may deem fit and proper.
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 parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.
Complainant and opposite parties 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.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken up together for easiness of the discussions of this case.
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. So, the complainant here in is a consumer of the opposite parties.
- Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs.50,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- It is the case of the complainant that he purchased one mediclaim policy i.e. Family Health Optima Insurance Plan from the opposite party no. 1 during the period from 01.02.2017 to 31.1.2018, sum insured Rs.3,30,000/- for himself, wife and daughter and net premium has been fixed Rs.6500/- per year. During the continuance of the policy the wife of the complainant feeling a severe pain due to enlargement of both breast lump under bilateral axillary she consulted her physician Dr. Sourav De of Baidyabati on 10.1.2018 who advised some medicine and refer her to further treatment. Accordingly, the complainant along with his wife visited Dr. Nirmalya Bagchi at Charnok Hospital on 12.1.2018 and as per advice of the said doctor she made a few tests and after perusing the test report Dr. Nirmalya Bagchi fixed date for operation on 24.1.2018 and she was discharged from the said hospital on 25.1.2018. Before the operation the complainant consulted the opposite party no. 1 regarding the operation and they assured the complainant of cashless facility for all diseases as their policy was seven years old which covers all treatments. Subsequently the complainant filled up the claim form at the time for admission i.e. 24.1.2018 for cashless facility and submitted relevant documents to said hospital. During the period of discharge the treating hospital informed the complainant that the claim has been rejected by the opposite party insurance company on the ground that the insured patient has been diagnosed with B/L AXILLARY TAIL AT BREAST which is not admissible under exclusion/condition no.3.20. Then the complainant visited the said Dr. Nirmalya Bagchi of Charnok Hospital who on his turn stated that this operation should not be considered as a cosmetic surgery. Complainant informed the matter to the opposite parties & prayed for cashless benefit. But the opposite parties rejected the claim of the complainant without considering the document issued by the Dr. Nirmalya Bagchi of Charnock hospital. This complainant several times approached the opposite parties to allow the claim but no fruitful result was achieved. Finding no other alternative the complainant filed the instant complaint before this Forum/Commission praying directions as incorporated in the prayer portion of the complainant petition.
The opposite parties contested the case denying all the allegations leveled against them and averred that Pre-Authorization request for cashless treatment submitted by the insured was not considered as the treatment was for B/L AXILLARY TAIL AT BREAST and the same is an excluded / condition/ procedure under Excision 3(20) of the policy. Subsequently the opposite parties received a claim for reimbursement of medical expenses on 08.02.2018 and after scrutiny it was observed that “As per the discharge request report of the treating hospital the insured patient has undergone the treatment of Excision of Bilateral Axillary Tail at Breast which is cosmetic correction”. So the opposite parties repudiated the claim of the complainant vide letter dated 03.04.2018. The answering opposite parties assailed that Dr. Nirmalya Bagchi of Charnock hospital opined that the operation should not be considered a Cosmetic Surgery but no document has been submitted along with the complaint. The opinion dated 11.05.2020 of Dr. Guru Mageswaran, MBBS, National Board (General surgery) mentions that the patient had been operated for Bilateral Axillary Tail of the breast- this is Cosmetic in nature.
The discharge summary dated 25.01.2018 speaks that Final Diagnosis: Excision of Bilateral Axillary Tail at Breast, Physical Finding at the time of Admission: Bilateral Axillary Tail both breast, Operative notes with date & details of Implants (if any): Excision + Bilateral Axillary Tail at breast under GA on 24.01.2018. Bilateral hypertrophied Axillary tail at breast excised. Haemostasis, closure in layer 2/0 vicryl, specimen sent for HPE. The certificate dated 25.01.2018 of treating Dr. Nirmalya Bagchi of Charnock hospital speaks that this is to certify that Krishna Saha, 32 yrs female having gradual enlargement of lump in both Axillary region for 2 months. She started having pain in both Axillary region since 3 wks while folding her arms. While examining her found to have enlarged B/L Axillary Tail of Breast which were tender to touch and inflamed. So advised her to get those hypertrophic Axillary tail of breast removed. She was admitted in Charnock hospital under his care on 24.01.2018 and was operated on that day itself. She was discharged on 25.01.2018 in a stable condition. This operation should not be considered a Cosmetic Surgery. The REJECTION OF PRE – AUTHORIZATION FOR CASHLESS TREATMENT dated 25.01.2018 speaks that the insured patient has been diagnosed with B/L AXILLARY TAIL AT BREAST, which is not admissible under the policy, under exclusion/condition number 3.20. Therefore they expressed their inability to approve this claim, for which he has made a request in cashless. The repudiation letter dated 12.02.2018 speaks that it is observed from the medical records, the insured patient underwent excision of bilateral Axillary tail at breast which is cosmetic correction. As per exclusion No.20 of the above policy, the company is not liable to make any payment under the policy in respect of expense incurred at Hospital for cosmetic or aesthetic treatment of any description. So they are unable to settle their claim under the above policy and hereby repudiated their claim. Similarly repudiated the above claim vide letter dated 03.04.2018 on the same reason. The Exclusion clause 20 clearly speaks that Change of Sex or cosmetic or Aesthetic treatment of any description, plastic Surgery (other than as necessitated due to an accident or as a part of any illness), all treatment for erectile dysfunctions. So from the above discussion it is clear that the opposite party filed no document from which we can infer that the wife of the complainant under gone Cosmetic Surgery for her beautification. On the other hand the patient was suffering from pain & physical problem so she compelled to go to doctor for her treatment. The treating doctor operated the Tail to relief her from pain. The doctor also certified that the operation does not come within the purview of Cosmetic Surgery.
Going by the facts and evidence on record, we are of the considered view that the opposite party has failed to adduce cogent evidence in support of their contention that the exclusion clause of the subject insurance policy was applicable.
So from the above observation this Forum is in the opinion that the complainant is entitled to get the money spent for the treatment of the complainant following the entitlement of the insurance policy.
Considering the entitlement, the complainant is entitled to get a sum of Rs.51,560/- which she/he spent for the treatment of the insured.
So from the above discussion we may safely conclude that the complainant is able to prove his case by adducing sufficient documents.
From the discussion made herein-before, we have no hesitation to come to the conclusion that the complainant has succeeded to prove his case. So the opposite party cannot avoid his responsibility of paying the claim of the complainant including interest thereon as ascertained by this forum/ Commission.
ORDER
Hence, it is ordered that the complaint case being no.54 of 2019 be and the same is allowed on contest against the opposite party with litigation cost of Rs.10,000/-.
The opposite party is directed to pay a sum of Rs.51,560/- to this complainant within 45 days from the date of passing this order.
Opposite parties are further directed to pay compensation amounting to Rs.30,000/- for mental agony, anxiety and harassment within the stipulated period.
In the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days in 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/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
