FINAL ORDER / JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The petition of complaint has filed by the complainant U/s 12(1) of The C.P. Act, 1986.
The fact of the case in a nutshell is that the complainant obtained the Medical Insurance Service Plan from OPs-1 and 2 through the OP-3 on payment of initial premium of Rs.5,118/-. The policy is for the hospitalisation benefit namely “Senior Citizen Red Carpet Health Insurance Policy” being No. P/190000/01/2017 for availing of the hospitalisation benefits for his mother Mrs. Khukurani Biswas. Covering their medical expenses for Rs.1,00,000/- and with the provided Senior Citizen Red Carpet Health Insurance Policy identity cards for the period of 12.07.2016 to 11.07.2017.
The complainant further stated in his written complaint that he on good faith signed the blank proposal form to the OP-3 as he assured that he will fill up the proposal sheet in his office. The complainant disclosed all the history of previous physical illness of his mother to the OP-3.
It is further stated by the complainant that surprisingly no pre insurance verification form has come from the OPs-1 and 2 nor any medical check up was done to the insurer by the Doctor of the Insurance Company which is mandatory for medical insurance policy for senior citizen people. It is further stated by the complainant that the consumer complainant being an old client of the OPs-1 and 2 and she did not availed the medical insurance benefits as for previous period covering the medical expenses of the same person covering from 12.07.2016 to 11.07.2017. It is the further case of the complainant that the insurer was awarded for escalation of insured amount which risen from Rs.1,00,00/- to Rs.2,00,000/- and the required premium paid by the complainant was Rs.9,978/- as premium for the year 12.07.2017 to 11.07.2018. During this period the mother of complainant namely Smt. Khukurani Biawas suffered from colonic obstruction due to fecal inaction and rectal polyp and admitted at the OP-4 hospital under the care and medical treatments of OP-5 Doctor on 26.02.2018 and continued till 05.03.2018. She was undergone for surgery at the OP-4 hospital by OP-5 Doctor. At the time of discharge of Khukurani Biawas from the hospital the OP-1 to 3 informed that cashless benefit will not be given but reimbursement would be done from their end. In order to get his legitimate claim the complainant placed the legally recoverable claims before the OPs-1 and 2 for a sum of Rs.72,400.95/- only by maintaining all sorts of formalities on 20.03.2018 and the OP-2 duly received the same under seal and signature on 22.03.2018 but the OP-2 refused the legitimate claims of the complainant for their wrongful gain and unfair trade practice. Being aggrieved by and dissatisfied with the conduct of the OP-2 the complainant served the demand notice to the OP-2 for a sum of Rs.4,72,400.95/- (Rupees four lakh seventy two thousand four hundred and ninety five paisa) only on 17.07.2018 by speed post but no response has yet been received by the complainant from the end of the OP-2.
The complainant stated that he is a consumer U/S 2(g) of the C.P. Act, 1986. The cause of action arose on 02.04.2018 when the OP-3 refused the claim of the complainant. Hence, the OPs caused harassment and mental agony to the complainant to repudiate his claim and without having any other alternative for the cause of deficiency of service on the part of the OPs-1 and 2, the complainant has filed this case against the OPs with a prayer to give direction to the OPs-1 and 2 to pay a sum of the Rs.4,72,400.95/- to the consumer complainant and mentioned in the scheduled in the petition of complaint.
The OPs-1, 2 and 4 have contested the petition of complaint by filing separate WV denying all the material allegations levelled against them. It is the case of the OPs that the complainant has no cause of action to file the case and the case is harassive one and the complainant has filed the case with malafide intension.
It is the case of the OPs that the OP insurance company had acted within the parameter of policy condition and the claimant has no authority to challenge such terms and condition before the Ld. forum. The insurance policy is a contract and terms and conditions of such contract are strictly and equally binding upon both the insurer and insured and neither of the parties under such contract can challenge the terms of the same.
It is the OPs case that as per condition No. 9 of the Policy if there is mispresentation / non-disclosure of material facts whether by the insured person or any other person acting on his behalf the company is not liable to make any payment in respect of any claim. The patient has history of CVA II and half tears back, which was not disclosed by the complainant during policy inception and accordingly the complainant was asked to submit all previous documents regarding CVA. But the complainant failed to submit the documents hence, cashless denied on non disclosure of material facts also for insufficient documents. OPs have stated that they have done this on the basis of discharge certificate dated 28.02.2018 issued by AMRI Hospital, Salt Lake, Kolkata which is annexed by the OPs as Letter-D. It is the further case of the OPs that there was no negligence or deficiency in service on their part and they repudiated the claim of the complainant as per terms of the policy conditions so there was no basis to file the petition of complaint by the complainant and the same is malafide one thus the petition of complaint is liable to be dismissed with cost.
The OP-4 that is AMRI Hospital, Salt Lake, Annex-1 has contested the claim application by filing separate WV submitting interalia that the complainant did not make any allegation against the OP-4 as it appears from the fore corner of the petition of complaint. The complainant has prayed for relief that is reimbursement of medical expenses together with compensation and cost from the OPs-1 and 2 herein. So, the OP-4 denied the averments of the complainant by submitting that the petition of complaint is not maintainable in its present form as it of suffering from misjoinder of necessary parties.
Admittedly, on 24.02.2018 one Mrs. Khukurani Biswas was admitted in the OP-4 hospital under Dr. Sudip Chowdhury. After proper clinical observation and diagnosis and also under proper treatment she was discharged on 05.03.2018 in stable condition which would be evident from the discharge summery issued by the OP-4 hospital
Under such circumstances as there is no claim against the OP-4 hospital so the petition of complaint is liable to be dismissed with cost.
From the materials on record it appears that the case do run ex parte against OPs-3 and 5 as they did not contest the case by filing WV within the stipulated period. .
In view of above facts and circumstances, it has to be decided by the Commission:-
- Whether the case is maintainable as per law?
- Has the complainant any cause of action to file the case.
- Is the complainant consumer?
- Are the OPs a service provider, if so, is there any deficiency in service on their?
- Is the complainant entitled to get relief as prayed for?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of the materials as well as evidence on record it appears that some of the OPs were residing and running their business outside the jurisdiction of the Forum and the complainant got the permission to institute this case before this Forum by filing a petition U/S 11(2)(b) of The C.P. Act, 1986 which was duly allowed vide order no.2 dated 13.08.2018 passed by this forum at the time of admission hearing.
The materials on record established that this Forum has got the territorial as well as pecuniary jurisdiction to try this case. It is also revealed from the content of the petition of complaint, other materials and evident on record that the complainant purchased the Senior Citizen Red Carpet Health Insurance Policy being No. P/190000/01/2017 for availing of the hospitalisation benefit for his mother Mrs. Khukurani Biswas from the OPs-1and 2 insurance company through their agent OP-3 on payment of the first premium of Rs.5,118/- covering the medical expensed of Rs.1,00,000/- for the period from m12.07.2016 to 11.07.2017. That policy was renewed by the OP-1 and 2 on receipt of premium of Rs.9,978/- as for the escalation of the insured amount from Rs.1,00,000/- to Rs.2,00,000- for the period of 12.07.2017 to 11.07.2018. From the evidence on record it is evident that the mother of the complainant was admitted at OP-4 hospital on 26.02.2018 for her medical treatment of Colonic obstruction due fecal inaction and rectal polyp and she was discharged from the hospital on 05.03.2018. She was undergone treatment by the Doctor i.e. OP-5 of the OP-4 hospital. From the evidence on record it is also revealed that admittedly the complainant placed her claim of Rs.72,400.95 only to the OP-2 on 20.03.2018 after observing all sorts of formalities which was duly received by the OP-2 on 22.03.2018 under seal and signature but said claim of the complainant as repudiated by the OP-2 vide letter dated 02.04.2018. Hence, cause of action arose
All the contesting OPs submitted in the WV and evidence that the complainant has no cause of action to file the case but in view of the discussions made above it is proved that the complainant has sufficient cause of action to file the case.
It is admitted fact that the complainant purchased the “Senior Citizen Red Carpet Health Insurance Policy” being No. P/190000/01/2017 from the OPs-1 and 2 through their agent i.e. OP-3 on payment of required premium for the period on and from 12.07.2016 to 11.07.2017. So, undoubtedly since the purchase of the policy for availing of the hospitalization befits for his mother from the OPs-1 and 2 through OP-3 and as he got the service from the OP-4 hospital by admitting his mother there for her treatment under OP-5 Doctor the complainant undoubtedly the consumer and the OPs are the service providers within the ambit of The C.P. Act, 1986.
When the consumer and service provider relation in between the parties of this case has already been established and decided, then let us see whether there was any sort of deficiency of service on the part of the OPs especially on the part of the OPs-1 and 2 against whom the complainant made his claim and also on the part of the other OPs.
It is the case of the OPs-1 and 2 that admittedly the complainant purchased the Senior Citizen Red Carpet Health Insurance Policy on payment of the required premium for the period of 12.07.2016 to 11.07.2017 covering the medical expenses for Rs.1,00,000/- for availing of the hospitalisation benefit for the mother Mrs. Khukurani Biswas of the complainant. From the materials on record and also from the Annexure-A it is palpably clear that the OPs-1 and 2 also renewed the said insurance policy for the period from 12.07.2017 to 11.07.2018 on payment of premium of Rs.9,978/- covering the medical expenses of Rs.1,00,000/- to Rs.2,00,000/-. When the complainant placed the claim for hospitalisation benefit of his mother who was admitted at OP-4 hospital on 26.02.2018 under the doctor i.e. OP-5 and was undergone for surgery thereafter discharged on 05.03.2018 in stable condition as we got it from the discharge summery issued by the OP-4 hospital which is also submitted by the OPs as Annexure-B. The complainant applied for cashless treatment which has denied by the OPs-1 and 2 on the plea on non disclosure of pre existing disease because it is mentioned in the discharge summery of Mrs. Khukurani Biswas that the past history of old CVA. but surprisingly the OPs-1 and 2 did not feel any urge to look into the matter at the time of initiation of medical insurance policy in favour of the mother of the complainant. They did not make any arrangement for medical check up of Mrs. Khukurani Biswas when the policy certificate was issued and it was also been renewed for the period of 12.07.2017 to 11.07.2018. If that be so then the insurance company i.e. OPs-1 and 2 should be estopped from raising any question in regard of suppression of material fact regarding pre existing disease. At the time of issuance of insurance policy in favour of complainant the OPs-1 and 2 was only interested for their business but from their conduct it is established that they tried to deprive the insured from their legitimate claim by taking several plea. In the instant case also when the complainant intend to purchase the policy under the name and style “Senior Citizen Red Carpet Health Insurance Policy” for the benefit of his mother Mrs. Khukurani Biswas at that time the OPs-1 and 2 did not take case about the matter for taking the previous history of any sort of decease of Mrs. Khukurani Biswas by appointing their own doctor. They only tried to expan their business by hook or by crook but at the time of giving the service on demand they denied the claim which is / was the legitimate claim of the complainant and repudiate the claim of the complainant vide letter dated 02.04.2018 which they cannot.
So from the conduct of the OPs-1 and 2 it appears that all along they were negligent to serve their insured and always was with intension to deprive them from their legitimate claim which they did in the instant case also.
So, considering all the aspects this Commission is of view that the complainant has taken all the steps properly to get the benefit of the mediclaim insurance policy of senior citizen after observing all sorts of formalities. But the OP-1 and 2 arbitrarily repudiated the same with a malafied intension to deprive the insured even after renewed the policy for the second time. Hence, considering all the aspects and considering the evidence on record and argument of Ld. Advocated for both the sides, the Commission is opined that the complainant being the consumer rightly put his claim for getting the benefit of mediclaim insurance policy of senior citizen and the OPs-1 and 2 intentionally repudiated the claim to deprive the complainant’s legitimate claim which should be considered as the deficiency in service on the part of the OPs-1 and 2 and unfair trade practice. the OP-1 and 2 did not pay any heed to the repeated request of the complainant and compelled him to knock the door of this Forum for getting relief which caused harassment, negligence, mental pain and agony to the complainant by the conduct of the OPs-1 and 2.
From the content of the petition of complaint, evidence on record and annexures as adduced by both the parties, it appears that the complainant placed his claim of Rs.72,400.95/- only and initially though the OPs-1 and 2 stated that cashless benefit will not be given but reimbursement would be done from the end of the insurance company but ultimately they have repudiated the claim of the complainant and deprived him from his legitimate claim.
In view of the discussions made above, the Commission is opined that the complainant has established and proved his case beyond all reasonable doubts and is entitled to get the relief as prayed for.
All the points are thus decided favourably to the complainant.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed against the OPs-1 and 2 with cost of Rs.1,000/- (Rupees one thousand) only.
The complainant to get the decree as prayed for.
The OPs-1 and 2 are directed to pay a sum of Rs.72,401/- (Rupees seventy two thousand four hundred and one) only to the complainant either jointly or severally along with interest @ 9% per annum on the amount from the date of filing of this case till realisation within 45 days from the date of order.
The OPs-1 and 2 are further directed to pay compensation to the complainant of a sum of Rs.30,000/- (Rupees thirty thousand) either jointly or severally along with litigation cost of Rs. 5,000/- (Rupees Five thousand) only within 45 days from this date of order.
If the OPs-1 and 2 will fail to comply the decree within stipulated period as mentioned above the complainant would be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
