DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No 07 of 2015

Date of filing:  07.01.2015                                                                       Date of disposal: 09.9.2015

Complainant:              Sri Dipak Kumar Pal, S/o. Late Biren Chandra Pal, resident of Bajeprotappur, Katwa Road (Opp. Of UCO Bank), PO., PS. & District: Burdwan, PIN – 713 101.

-V E R S U S-

Opposite Party:    1.    Branch Manager, Star Health and Allied Insurance Company Ltd., Burdwan Branch Office, having its office at Gopal Bhavan, G.T.Road, 39/37A Parbirhata, PO: Sripally, PS. & District: Burdwan, PIN – 713 103.

2.    Star Health and Allied Insurance Company Ltd., represented through its Chairman, having its Registered office and Corporate Office at 1, New Tank Street, Valluvar Koltam High Road, Nungam Bakkam, Chennai – 600 034.          

Present:        Hon’ble President: Asoke Kumar Mandal.

           Hon’ble Member:  Smt. Silpi Majumder.

Appeared for the Complainant:           Ld. Advocate, Suvro Chakraborty.

Appeared for the Opposite Party (s):  Ld. Advocate, Ahi Bhushan De.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as the Ops did not decide the insurance claim of the complainant till filing of this complaint.

The brief fact of the case of the complainant is that complainant adopted   an insurance policy, namely, Senior Citizen Red Carpet Insurance Policy in the year 2011 from the Ops after making payment of due premium of Rs. 4,908=00. The policy was issued in favour of him and the same was valid for the period from 09.4.2011 to 08.4.2012. Thereafter the complainant renewed the said policy in every year upon making payment of due premium to the Ops and for the last occasion the policy was valid for the period from 09.4.2014 to 08.4.2015. During validity of the said policy the complainant due to abdominal pain went a to a doctor namely Dr. M.N. Ganguly, Burdwan but during continuance of his treatment suddenly he became senseless and for this reason he was shifted to Colombia Asia Hospital, Kolkata by his family members and got admission under Dr. Dhrubojyoti Roy and Dr. Jishnu Banerjee. During admission he was totally senseless and for this reason the hospital authority was informed by his family members that the patient bears the cashless insurance policy. Accordingly the hospital authority got an approval of Rs. 15,000=00 towards cashless treatment of the complainant and thereafter the said amount was enhanced by the Ops up to Rs. 25,000=00 and the same was duly informed to the hospital authority by issuing letter dated 22.8.2014. It is submitted that the complainant that after 3 or 4 days of his admission he got some sense. Then one person came to his table and asked several questions regarding his treatment. He was asked for signature on a blank form by the said person but the complainant being an advocate did not use to put any signature on blank sheet or form but as he was not in normal condition and had to take several medicines, he put his signature assuming that the person is a staff of the hospital authority. But later he came to know from the staff of the hospital that the said person was not a staff of the hospital and the person disclosed his identity before the hospital authority as a person of the Insurance Company. At that point of time the complainant was under the influence of medicine and he is not in a position to remember whether he had put the date or not under his signature on the blank form. The complainant got admission at Columbia Asia Hospital on 12.8.2014 and discharged therefrom on 22.8.2014. During this period he had to incur medical expenses to the tune of Rs. 1, 62,902=00. During discharge no cashless benefit was provided to him, having no alternative he had to make payment of the balance amount from his own pocket. After discharge he contacts with the officials of the OP for the queries as to why cashless benefit was not provided in his favour. The Official tried to give some explanations, but the same have no ground at all. Complainant was asked by the said person for filing of claim  form for the remaining amount and accordingly claim form was lodged before the Ops along with relevant papers and documents on 10.9.2014 along with declaration by the hospital in part ‘B’ of the claim form dated 07.9.2014. Since then the complainant over telephone gave several reminders for early settlement of the claim but to no effect. On 15.10.2014 while the complainant updated his pass book in UCO bank, Bajepratappur branch then only he came to learn that an amount of Rs. 19,500=00 has been credited through NEFT on 08.10.2014 by the Ops. Neither any prior intimation for such payment has ever been intimated to the complainant nor has any discharge voucher ever been sent to him. By issuing letter dt. 17.10.2014 the complainant asked for clarification for the same along with request was also made for making further payment of the balance amount. Admittedly the total bill was of Rs. 1, 62,902=00 and out of which Rs. 25,000=00 has been paid to the hospital and Rs. 19,500-00 has been paid through NEFT. Therefore the complainant is still entitled to get for Rs. 1, 18,402=00 from the Ops. But the Ops kept themselves mum regarding full and final settlement of the claim till filing of this complaint. The complainant being a bonafide customer of the Ops as per terms of the policy he is entitled to get cashless benefit. He had never violated the terms and the conditions of the policy and renewed the policy my making payment of due premium each and every year, moreover he did not do any act detrimental to the interest of the Ops. Inspite of that the cashless facility has not been provided by the Ops to him.  His insurance claim has not been decided by the Ops having no alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the Ops to pay a sum of Rs. 1, 18,402=00 towards the claim amount, Rs. 50,000=00 as compensation due to harassment and mental pain and litigation cost of Rs. 25,000=00.

The petition of complaint have been contested by the Ops by filing conjoint written version wherein it is stated that these Ops have issued the Senior Citizens Red Carpet Insurance Policy covering the complainant for a sum insured of Rs. 1, 00,000=00 for the period from 09.4.2011 to 08.4.2012, for a sum insured of Rs. 1, 00,000=00 for the period from 09.4.2012 to 08.4.2013, Rs. 2,00,000=00 for the period from 09.4.2013 to 08.4.2014 and sum insured of Rs. 2,00,000=00 for the period from 09.4.2014 to 08.4.2015. The alleged claim is in respect of the fourth year of the said policy. The complainant was admitted in Columbia Asia Hospital in Kolkata on 12.8.2014. Upon receipt of the pre-authorized request from the treating hospital the Ops have duly scrutinized the claim records and approved cashless facility for Rs. 25,000=00 to the treating hospital-Columbia Asia Hospital vide its letter dated 22.8.2014. The Ops have also sent the claim form to the insured for filing the same towards reimbursement of the medical expenses. Upon scrutiny of the said claim records it is found that as per the indoor cash paper dt. 12.8.2014 the insured was a known case of Diabetes Type 2 and COPD. The field visit report by the doctor of the Ops dated 13.8.2014 which was also signed by the insured reveals that the insured is a known case of Diabetes Mellitus, plum TB since 14 years. The preauthorization form states that the insured had a history of COPD and Diabetes Mellitus which indicates the present element and obviously the said disease being pre-existing disease from which the insured was suffering from prior to the inception of the policy. At the time of the inception of the first policy on 09.4.2011 the insured did not disclose the above-mentioned medical history-state of health in details in the proposal form, which amounts to misrepresentation/non-disclosure of the material facts. As per execution clause no. 5, 50% of each and every claim arising out of pre-existing disease as defined and 30% in case of all other claims which are to be borne by the insured. It is further contended by the Ops that after scrutiny of the additional records furnished by the Columbia Asia Hospital, Kolkata the Ops enhanced the cashless benefit from Rs. 15,000=00 to Rs. 25,000=00 for treatment of the diseases i.e. acute LRTI, COPD, DMT-2 and HTN as diagnosed. In final enhancement the authorization for cashless treatment the amount has been arrived as per eligible room rent in terms of the policy condition. If the insured had opted for higher rent room category, the proportionate differential amount has to be incurred by the insured, not payable by these Ops. It is mentioned in the terms and the conditions that surgeon, anesthetist, medical practitioner, consultants specialist fees, nursing charges, anesthesia, blood, oxygen, OT charges, surgical appliance, medicinal drugs, dialysis, chemotherapy, radiotherapy, relevant laboratory /diagnostic tests, x-ray and other medical expenses relating to the treatment, maximum payable after deducting 50%. As per Co-pay sum insured restricted to Rs. 1, 00,000=00 as the onset of the disease falls in the lesser sum insured period. Hence the room rent restricted to 1% of the sum assured per day and ICU 2% of the sum insure per day. Since the patient opted for higher room category as per policy conditions the company will pay 50% of the amount and the balance amount should be borne by the insured himself/herself. As per clause A of the policy room-boarding as provided by the hospital/nursing home at 1% of the sum insured subject to maximum of Rs. 4,000=00 per day. As per clause D surgeon, anesthetist, medical practitioner, consultant and specialist fees shall be payable maximum 25% of the sum insured per hospitalization. As per clause ‘E’ anesthesia, blood, oxygen, OT charges, surgical appliances, medicines and drugs, diagnostic material and X-ray, radiotherapy, chemotherapy, dialysis, cost of pacemaker and similar expenses shall be payable 50% of the sum insured per hospitalization. Admittedly the Ops have paid 25% directly to the hospital authority towards cashless benefit during stay in the hospital and thereafter Rs. 19,500=00 had already been credited in the account of the complainant though NEFT. As the complainant has already received Rs. 44,500=00 towards his medical expenses, nothing is payable to him further. So praying for further amount the complainant has filed this complaint is not tenable and the same is liable to be dismissed summarily. It is further submitted upon receipt of the amount the complainant has filed this complaint with mal-intention only to grab further amount from these Ops through an illegal manner which cannot be sustained in the eye of law. Accordingly prayer has been made by the Ops for dismissal of the complaint with cost.

The complainant has filed several papers in support of his contention. The Ops have filed written notes of argument along with several papers and documents supporting his argument. Both parties have also relied on some judgments in support of their respective contentions.

We have carefully perused the record, papers and documents filed by the parties, Section 45 of the Insurance Act as mentioned by the complainant and the Rulings filed by the contesting parties. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant obtained one Senior Citizen Red Carpet Insurance Policy from the Ops in the year 2011 after making due premium, the policy was renewed from time to time in every year subject to payment of due premium amount, during validity of the policy complainant became ill due to abdominal pain, went to doctor to Dr. M.N. Ganguly at Burdwan, he became senseless, he was shifted at Columbia Asia Hospital, Kolkata and got admission under Dr. D. Roy and Dr. J. Banerjee, hospital authority was informed about his cashless insurance policy, primarily the hospital authority got approval of Rs. 15,000=00 towards cashless treatment and thereafter the amount was enhanced from 15,000=00 to Rs. 25, 000=00 by the Ops and ultimately Rs. 25,000=00 was directly paid to the hospital authority by the Ops towards cashless benefit of the insurance policy, the complainant replied some questions put to him by a person of the Ops and put his signature therein on 13.8.2014, in the said document it is mentioned that the complainant was suffering from Diabetes Mellitus since 14 years and TB for 14 years also. The insured got admission at Columbia Asia Hospital on 12.8.2014 and got discharge on 22.8.2014, during admission diagnosis was made by the treating doctors as COPD with LRTI with cellulites and hyperglycemia, during discharge diagnosis was made as COPD with LRTI with cellulites and hyperglycemia. In the said hospital the insured was managed conservatively, after getting discharge he lodged the claim form before the Ops for reimbursement of the balance medical expenses incurred by him possibly on 10.9.2014 along with a declaration by the hospital, the complainant had to incur for Rs. 1,62,902=00 towards his medical expenses, on 15.10.2014 the complainant came to know that an amount of Rs. 19,500=00 has been credited through NEFT on 08.10.2014 by the Ops while he went to update his pass book in UCO bank, Bajepratappur branch, for such payment no prior intimation was given, no discharge voucher has been sent to him, the complainant asked for clarification by issuing letter dated 17.10.2014 along with a request for making payment of the further amount, till filing of this complaint no fruitful result has been yielded. The allegation of the complainant is that though he had to incur Rs. 1, 62,902=00 towards his medical expenses but the Ops paid a sum of Rs. 44,500=00 only and inspite of several requests and written correspondences the Ops did neither  pay the balance amount nor made any written correspondence stating reasons for non-payment of the balance amount till filing of this complaint. As his grievance has not been redressed by the Ops hence filing this complaint he has prayed for the balance amount along with certain reliefs.

The rebuttal case of the Ops is that as per terms and the terms and the conditions of the policy the Ops have paid the entire amount to him and nothing is payable by them, but the complainant with mal-intention has filed this complaint with a view to squeeze some money from the company through an unauthorized manner. It is further submitted by the Ops that it is not their prerogative as to how much amount has been incurred by the complainant towards his medical treatment, but in respect of payment both parties are under obligation to abide by the terms and the conditions of the policy in question. As the complainant had adopted entire terms and the conditions of the policy, now he cannot travel beyond the said policy and hence further amount as prayed for by the complainant cannot be payable as per terms and the conditions of the policy.  Hence prayer is made by the Ops for dismissal of the complaint.

During argument the ld. Counsel for the Ops has attracted to the documents filed by them from where it is seen by us that in the discharge certificate written by Columbia Asia Hospital wherein the insured was under treatment diagnosis has been made as Chronic Obstructive Pulmonary Disease with Acute Lower Trachea Respiratory Infection, Hyperglycemia, unspecified, Cellulites of Left Lower Limb. The ld. Counsel for the Ops has provided the definition COPD, Hyperglycemia and Cellulites. Mentioning the said definitions it is submitted by him that though the complainant-insured was suffering from those diseases prior to taking out the policy and the same had not been disclosed in the proposal form hence there is a history of pre-existing disease and for this reason the complainant is not entitled to get the entire medical expenditure incurred by him ratter he is entitled to get as per exclusion Clause no. 5 of the terms and the condition of the policy. In respect of such argument the ld. Counsel for the complainant has argued that no evidence has yet been adduced by the Ops to show that prior to inception of the policy the complainant was suffering from those diseases and concealment was done by him fraudulently in the proposal form. Not only that the complainant has also relied on Section 45 of the Insurance Act, 1938 and based on the said Section it is stated that as the policy was taken in the year 2011 and the patient is claiming reimbursement of the medical expenditure in connection with the insurance policy and in this way more than two years have elapsed, now the Ops cannot take shelter under the plea that the insured was suffering from pre-existing disease and the same was not disclosed by him in the proposal form. Upon careful perusal of Section 45 of the Insurance Act, 1938 it is seen by us that in the said Section it is written which runs as follows:

45      ‘Policy not to be called in question on ground of misstatement after two years.

No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and 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 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 that 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, provided that nothing in this Section shall prevent the insurer from calling from proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.

Section 45 postulates repudiation of such policy within a period of two years. By reason of the aforementioned provision a period of limitation of two years had, thus, being specified and on the expiry thereof the policy was not capable on being called in question, inter alia, on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder known at the time of making it that the statement was false. Statute, therefore, itself provides for the limitation for valid repudiation of an insurance policy. It takes into account the social security aspect of the matter.

There are three conditions for application of second part of Section 45 of the Insurance Act which are:-

1. the statement must be on a material matter or must suppress facts which it was material to disclose,
2. the suppression must be fraudulently made by the policy holder, and
3. 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.