Smt. Sahana Ahmed Basu, Member.
This is an application u/s.12 of the C.P. Act, 1986.
Briefly stated the facts of the instant consumer complaint are that complainant-1 opted a mediclaim insurance policy on payment of premium of Rs.13,116/-, where complainant-2 is also covered by the said mediclaim policy. Prior to issue of the policy the complainants duly filled up the proposal form and underwent a medical test at Suraksha Diagnostic, Kasba as nominated by the O.P. Thereafter, O.P. sent an undated letter mentioning the policy number, sum insured and the validity from 1/12/2017 to 10/12/2018. O.P. did not send the complete mediclaim policy but in fact O.P. sent only the schedule of the policy containing the terms and conditions.
On 13/03/2018 complainant-2 got admitted with Ruby General Hospital, E.M. Bypass, Kolkata with a complain of severe weakness, increased anxiety and dyspepsia and discharged on 16/03/2018. Complainant-1 applied for cashless on 16/03/2018 by e-mail. Complainants had to incurred medical expenses of Rs.30,375/-. Suddenly, on 26/03/2018 complainant-2 fall on road and causing injury on her right elbow and admitted to Ruby General Hospital and she was advised for open reduction and internal fixation. Complainant-1 requested for cashless facility but he was informed that O.P. refused to extend cashless facility on the ground non-disclosure of hospitalization for Rectual Ulcer Symptom and colonic Polip with dysplasia by e-mail dated 28/03/2018.On 29/03/2018 complainant-1 by his letter objected such refusal on wrongful ground. However, complainant-2 was discharged from hospital on 01/04/2018. Complainant-1 paid Rs.1,96,250/- to the hospital for treatment. On 13/04/2018 complainant-2 lodged his claims vide claim ID No.0651964 for Rs.30,375/- for the her treatment from 13/03/2018 to 16/03/2018 and claim ID No.CLI/2018/19116/0672968 for Rs.1,97,531/- for her treatment from 26/03/2018 to 01/04/2018. O.P. repudiated the claim of Rs.30,375/- by its letter dated 02/05/2018 on the ground of non-disclosure of her colonic adenomatous polyp by violation of Clause-7 of the policy. Moreover, O.P. has also repudiated the claim of Rs.1,97,531/- vide their letter dated 11/05/2018 on the ground of colonic adenomatous polyp prior to date of commencement of the policy violating the Clause-7 of the policy condition. Complainant-2 submitted a certificate from Dr. Asis Mitra dated 07/04/2018 before the O.P. wherein the doctor certified that the polyp was not related to the ailment of complainant-2. Second time complainant-2 was admitted to hospital treatment of fracture on her right elbow and that was an accidental injury and that claim has also repudiated on the same ground by the O.P. arbitrarily. Complainants also stated that O.P. by its letter 08/05/2018 cancelled the policy w.e.f. 17/06/2018 and complainant objected such cancellation by their letter dated 22/05/2018. Such arbitrary, illegal, harassive acts, which immense mental pain and financial loss to the complainants tantamount to deficiency in service and indulgence of unfair trade practice. Hence, this case.
O.P. has contested the case by filing W.V. through its Manager Claims contending inter alia that the instant consumer complaint is veracious, frivolous and liable to be dismissed on the ground suppression of facts and mis-representation. O.P. has stated in their W.V. that they issued the mediclaim insurance policy covering Complainant-2 based on the declaration made in the proposal form. It is not rue that they did send terms and conditions of the policy in question. It is stated that the pre-medical examination is only a preliminary examination of the health of the insured but the insured bound to disclose the medical history at the time of inception of the policy. In their covering letter they clearly mentioned that they enclosed the policy along with terms and conditions and the policy has been prepared based on the details furnished by the complainant. There was a free look period for 15 days from the date of receipt of the subject policy. He was advised to review the terms and conditions and if not satisfied they may cancel the policy. On receipt of pre-authorization request for cashless facility from Ruby General Hospital, treatment of megaloblastic anaemia, they made scrutiny of medical documents submitted by the treating hospital, it is observed from the documents of CMC, Vellore dated 27/10/2017 the complainant-2 had colonic adenomatous polyp and dysplasia along with rectal ulcer which was not disclosed at the time of inception of the policy. As such, they denied cashless authorization. It is also stated in the W.V. that In the case of distal radius fracture of the insured they asked for prior consultation papers and treatment records from treating hospital and on receipt of such documents it was found that the patient had past history of hospitalization for Rectal Ulcer Syndrome, Colonic Polyp with Dyspepsia prior to the policy which was a major non disclosure while taking the policy. Further case of the O.P. is that the 1st claim was lodged in the 3rd month of the policy and there was a clear past history of the insured and in the 2nd claim, in response to the query raised during cashless processing it reveals that the insured is diagnosed Colonic Adenomatous Polyp which is prior to the date of commencement of the policy. Thus, the answering O.P. rightly repudiated both the claims as per violation of the terms and conditions of the policy and there is no deficiency in service on their part. In regard to cancellation of the policy, O.P. stated in their W.V. the insured broke the insurance contract which is based on utmost good faith and willful suppression of material fact is suffice for such cancellation and as such there is neither any deficiency in service nor question of any unfair trade practice on the part of the O.Ps. The instant complaint is liable to be dismissed with exemplary cost.
On pleadings of the parties following points are come up for determination :-
- Whether the O.P. is deficient in rendering his service ?
- Whether the O.P. indulged in unfair trade practice ?
- Whether the complainant is entitled to get any relief as prayed for ?
Decision with Reasons
Points No.-1 to 3.
All the points are taken up together for the sake convenience and brevity in discussion.
Both parties have tendered evidence through affidavit and replied to the questionnaires set forth by their adversaries. Both parties have also filed their BNAs.
There is no dispute that the complainant-1 opted mediclaim policy and complainant-2 also covered by the said mediclaim policy being policy No.P/191116/01/2018/008030 issued by the O.P. against of Rs.13,116/-. The policy was valid for the period from 11/12/2017 to 10/12/2018. It is also true that complainant-2 was treated with colonic adenomatous polyp dyspepsia along with rectal ulcer at CMC, Vellore on 22/10/2017, which is prior to inception of the policy in question. It is admitted fact that complainant-2 was admitted to Ruby General Hospital Ltd. on 13/03/2018 with complain of severe weakness, increased anxiety dysplasia. She was discharged on 16/03/2018. The said hospital sought approval for cashless facility under the subject mediclaim policy from the O.P. but the same was denied by the O.P. on the ground of non-disclosure of hospitalization for rectal ulcer symptom and colonic polyp with dysplasia on 22/10/2017. Therefore, complainants had to pay the medical expenses of Rs.30,375/-. Again, on 26/03/2018, complainant-2 was admitted to the same hospital with injury on right elbow due to sudden fall on road. This time also, the approval for cashless facility had been refused by the O.P. on the self same ground by its e-mail dated 28/03/2018. Complainant-2 was discharged from the said hospital on 01/04/2018 on payment Rs.1,97,531/- towards her medical expenses. On 13/04/2018 complainant-2 lodged her claim of Rs.30,375/- for the period from 13/03/2018 to 16/03/2018 being I/D No.0651964 and Rs.1,97,531/- for the period from 26/03/2018 to 01/04/2018 being claim No.CLI/2018/19116/0672968 along with all treatment papers. On 02/05/2018, the O.P. repudiated the claim of the complainant-2 for the treatment for the period from 13/03/2018 to 16/03/2018 on the ground of non-disclosure of her colonic adenomatous polyp as per clause-7 of the terms and conditions of the policy. The claim of the complainant-2 for treatment from 26/03/2018 to 01/04/2018 was also repudiated by the O.P. on 11/05/2018 on the self same ground.
On perusal of record we find that the terms and conditions of the policy was not served to the complainants, only a cover letter and schedule were supplied. In our opinion, this is a clear deficiency in service on the part of the O.P. It has been argued by the Ld. Advocate appearing for the complainants that the proposal form was filled up by the O.P.’s Sales Manager, Mrs. Surama Talukdar and Mrs. Kakali Chatterjee, Agent of the O.P. and all documents of the earlier treatment was produced before them. Therefore, the complainants are not liable for non-disclosure of the pre-existing disease. But we did not find any statement and/or evidence in respect of Sales Manager and Agent of the O.P. It is expected that the complainants should go through the proposal form meticulously and if he or she fails to do so that is his / her liability. Punjab State Consumer Disputes Redressal Commission observed in a case of Oriental Insurance Co. Ltd. Vs. Narindar Kumar Mittal that “Normally if any person takes the policy he is supposed to know the terms and conditions of the policy so that later on he cannot take the plea that he was not aware about the terms and conditions of the policy.” Ld. Advocate for the complainants has also argued that complainant-2 appeared for medical test at Suraksha Diagnostic prior to obtain Mediclaim Policy along with all treatment papers accompanied by her husband Sailendra Nath Patra. The husband of complainant-2 filed an affidavit in which he supported the version of complainant-2 to the effect he had accompanied his wife to Suraksha Diagnostics for medical test and also produced all the previous treatment papers to the doctor who examined complainant-2. As such, we are of the opinion that complainants claimed cashless facility for treatment of severe weakness, increased anxiety and dyspepsia in Ruby General Hospital for the period from 13/03/2018 to 16/03/2018 and she was treated, earlier, for rectal ulcer symptom and colonic polyp with dysplasia. In this connection, a medical report can be inferred here for more clarity –
“A polyp is projection (growth) of tissue from the inner lining of the colon into the lumen (hollow centre) of the colon. Different types polyps look different under microscope. Polyps are benign (non cancerous) growths but cancer can start in some types of polyps. These polyps can be thought of as pre-cancers, which is why it sois important have them removed.”
(understanding your Pathology Report : Colon Polyps, American Cancer Society,
More so, the Visiting Consultant of Ruby General Hospital Dr. Asis Mitra (Registration No.54054 of WBMC) certified that “Sima Patra was suffering from anemia due to blood loss for which she was given blood transfusion. Anemia is not related with colonic adenotous polyp”. But O.P. rejected the first claim of cashless facility on the ground of non-disclosure of hospitalization for said treatment. In our considered opinion, such rejection is not justified.
The complainant-2 was admitted to Ruby General Hospital on 26/03/2018 and was discharged on 01/04/2018 for the treatment of injury on her right elbow, which was cropped up from sudden fall on road and again the complainant-2 sought for cashless facility but she was refused on the self same ground i.e. non-disclosure of previous hospitalization and she had to incur Rs.1,97,531/- for such treatment. This time, complainant-2 was diagnosed FRACTURE OLECRATION WITH POSTERIOR DISLOCATION RIGHT ELBOW AND COMMINUTED FRRACTURE DISTAL RADIUS (RIGHT). We do not find any piece of evidence from the side of the O.P. wherefrom it can be said that this fracture was caused for her earlier hospitalization for treatment of colonic adenomatous polyp. Therefore, we do not find any justification for refusal of cashless facility and this gesture of the O.P. can be termed as unfair trade practice.
On 13/04/2018, Complainant-2 lodged her claims of Rs.30,375/- for her 1st treatment vide claim No.CLI/2018/19116/0651964 and Rs.1,97,531/- for her 2nd treatment from 26/03/2018 to 01/04/2018 before the O.P. vide claim No.CLI/2018/19116/0672968. On 02/05/2018 the O.P. repudiated both the claims on the ground of non-disclosure of earlier treatment in violation of clause-7 of the policy. It is admitted that the terms and conditions of the policy was not supplied to the complainants. Therefore, the ground of repudiation is not justified. Ld. Advocate for the complainants argued that the O.P. cancelled their mediclaim policy wrongfully but the documents furnished by the O.P. go to show that they despatched the cancellation letter on 08/05/2018 following the mandatory notice period of 30 days. Therefore, we find the allegation of violation of intimation period by the complainant-2 does not stand.
Moreover, non-servicing of terms and conditions of the policy, disapproval of cashless facility and repudiation of the legitimate claim by the O.P. tantamount to deficiency in service and indulge practicing unfair trade too.
In view of the above discussion, we are inclined to hold that the complainants have been able to establish their case and as such they are entitled to get reliefs as prayed for. On careful perusal of the Bill Nos. IPBL/2017/8731 and IPBL/2018/6 we find that the complainant-2 had incurred Rs.30,375/- and Rs.1,96,234/- respectively for her medical treatment. Therefore, the complainants are entitled to get Rs.2,26,609/- in total towards medical expenses. Thus, all the points under determination answered in the affirmative.
In result, the case succeeds.
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the O.P. with litigation cost of Rs.5,000/- (Rupees Five Thousand) only.
The O.P. is directed to pay Rs.2,26,609/- to the complainants together with litigation cost within 30 days from the date of this order.
The O.P. is further directed to pay Rs.10,000/- as compensation for causing harassment, mental pain and agony to the complainants within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP transgresses to comply the order.
