Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 12  and Sec. 14  of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.)- 1) The Branch Head, IFFCO TOKIO General Insurance Company Ltd., MLA House, 4^th Floor, Near Cosmos Mal, Sevoke Road, Siliguri – 734001 and 2) The Branch Head, Peerless Financial Produces Distribution Ltd., Corporate Agent of IFFCO TOKIO General Insurance Co. Ltd., Hill Cart Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling- 734001 who contested the case by filing Written Version (W.V.).

                                    The case of the complainant as per his complaint is as follows-

The complainant is an old consumer of O.P. No.1 having Medical Health Card and also having Medical Insurance Policy bearing Policy No. 52974926 and the said policy was valid from 28.07.2018 to 27.07.2019. The complainant was suffering from stomach pain due to acidity for the last few years and diagnosed locally but there was no fruitful relief and thereafter he visited Apollo, Chennai for proper treatment. The complainant stated in his complaint that he is a patient of sliding hiatus hernia and was under advice and treatment of Asian Institute of Gastroenterology, Hyderabad since 2013 and thereafter in the year 2018 he again visited and treated under Chennai Apollo for further investigation.  The Chennai Apollo suggested for operation and the estimated operation cost was nearly 04 (Four) lakhs which was not affordable at that time and ultimately he came back to his place and started taking medicine as prescribed by Dr. Upal Udas, Surgeon, Gastro Department of Chennai Apollo. Thereafter, in July, 2018, the complainant again went to Bangalore at Vydehi Institute of Medical Sciences and Research Centre Hospital got admission under Dr. Ramesh Raddy for operation for which several diagnoses with  different pathological tests and investigations were carried out which were very much essential for the treatment and prevention and the cost of the operation was reasonable.

On 07.01.2019 the complainant admitted for operation as per advice of Dr. Ramesh Raddy and after completion of investigations on 11.01.2019 the hospital authority suggested him for a Manometry test from outside of the institute as the testing machine of the said institute was out of order. As per the norms, on 07.09.2019 complainant filed up the Insurance Claim Form as asked and suggested by the hospital authority and also intimated the matter to the O.P. No.1 for immediate approval for the said cashless policy. The ultimate claim was about Rs. 17,224/- (Rupees Seventeen Thousand Two Hundred and Twenty Two) only for hospitalization and Rs. 10,000/- (Rupees Ten Thousand) only for Manometry test and all documents including claim form were submitted to both the O.P.s but the O.P.s did not make any response.

 The complainant was discharged on 11.01.2019 for Manometry test and on 12.09.2019 he obtained the Oesophageal Manometry Report from Manipal Hospital, Bangalore and ultimately and ultimately it was detected and consulted with respective doctors that the operation might be a cause of complication now and in future. The complainant also discussed this matter with near relatives and family members who also suggested starting alternative medicines prescribed by the present doctor instead of operation. Thereafter, on 25.02.2019 the complainant submitted his claim form before the O.P. No.2 and on 25.09.2019 the O.P. No.1 repudiated the claim form which was baseless and the entire expenditure in hospitalization before operation was essential for treatment.

The prayers of complainant are as follows :

1. To pass an order directing the O.P. No.1 and 2, jointly and severally to pay Rs. 35,000/- (Rupees Thirty Five Thousand) only to the complainant which he was claimed in the claim form of O.P. No.1.
2. To pass an order directing the O.P.s to pay Rs. 1,00,000/- (Rupees One Lac.) only to the complainant for financial losses, mental pain, agony and continuous harassment.
3. To pass an order directing the O.P.s to pay Rs. 20,000/- (Rupees Twenty Thousand) only to the complainant for litigation cost.
4. Any other relief/ reliefs as Ls. Commission deemed fit and proper for the ends of justice.

                          List of Documents filed by the complainant:

1. Photocopy of Requisite for Cashless Hospitalization for Medical Insurance. (Annex.- A)
2. Photocopy of claim denied letter, dated 25.02.2019 issued by Authorized Signatory of IFFCO TOKIO General Insurance Co. Ltd. (Annex.- B)
3. Photocopy of prescription of Dr. Ramesh Reddy. (Annex.- C)
4. Photocopy of patient details of department of General Surgery of “Vydehi”, Institute of Medical Science and Research Centre along with present bill break up. (Annex.- D)
5. Photocopy of Medhealth Card of complainant issued by IFFCO TOKIO General Insurance Co. Ltd. (Annex.- E)
6. Photocopy of Aadhaar Card of Prabir Ganguly. (Annex.- F)
7. Photocopy of Voter Indentity Card of Prabir Ganguly. (Annex.- G)
8. Photocopy of Oesophageal Manomentry Report. (Annex.- H)
9. Copy of OGD Report. (Annex.- I)
10. Copy of Health Insurance Guide Book. (Annex.- J)
11. Copy of Consumer Law on Mediclaim Insurance.

On behalf of the Opposite Party (O.P.)- 1) The Branch Head, IFFCO TOKIO General Insurance Company Ltd., MLA House, 4^th Floor, Near Cosmos Mal, Sevoke Road, Siliguri – 734001 and 2) The Branch Head, Peerless Financial Produces Distribution Ltd., Corporate Agent of IFFCO TOKIO General Insurance Co. Ltd., Hill Cart Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling- 734001 who contested the case by filing W.V. and as per their W.V.s the case is as follows.

The O.P. No.1 denied all the allegations made by the complainant in his complaint and argued that the complainant was admitted in various hospitals from time to time for treatment for investigations/ diagnostic and evaluation purpose of his disease as advised by the doctors but he had not undergone for any active treatment. The O.P. No.1 also argued that in view of the policy terms and conditions/ definitions it is specifically stated therein that “what is covered and what is not covered” under the Clause 62 (6) of the Terms and Conditions of the policy. The cashless facility offered by the company is not a right of a customer rather it is just a facility provided by the company for welfare and benefits of its policy holder and the company shall only approve the same when it is sure that the claim is payable as per the policy terms and conditions and the O.P. No.1 denied the complainant’s claim in accordance with the policy terms and conditions. The O.P. No.1 also added that in the said denial letter dated 25.02.2019 issued by the insurance company, it is clearly stated therein that if the complainant is not satisfied with the denial of claim by the insurance company, then he can approach the matter to the Chief Grievance Officer of the company or the I.R.D.A. or the Insurance Ombudsman. There was no deficiency in services occurred in the part of the O.P.         

List of document filed by the O.P. No.1 is as follows :

1. Terms and Conditions of the Insurance Policy.

In the Written Version (W.V.), the O.P. No.2 denied all the allegations made by the complainant in his complaint and as per the W.V. the claim was not rejected by the O.P. No.2. The claim of the complainant was rejected by the O.P. No.1 on the basis of the terms and conditions of insurance policy and the rules prescribed by the I.R.D.A. The O.P. No.2 also argued that the complainant had purchased a “Health Protector Policy” bearing No. 52974926 along with her spouse valid from 28.07.2018 to 27.07.2019 for a sum insured of Rs. 50,000/- (Rupees Fifty Thousand) only each, but the same was always subject to certain terms and conditions, provisions, exceptions, coverage and non-coverage clauses as set forth in the policy. The O.P. No.2 also argued that in view of the policy terms and conditions/ definitions it is specifically stated therein that “what is covered and what is not covered” under the Clause 62 (6) of the Terms and Conditions of the policy.  The cashless facility offered by the company is not a right of a customer rather it is just a facility provided by the company for welfare and benefits of its policy holder and hence, the same cannot be claimed as a right by the policy holder that the claim is payable as per the policy terms and conditions and the O.P. No.1 might have denied  the complainant’s claim under reasonable ground in lawful manner and in accordance with the policy terms and conditions.

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS:-

                        All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Versions filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in Siliguri of Darjeeling district and the O.P. No.1 and 2 are also carrying their business in Siliguri of Darjeeling district. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consume Protection Act, 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.  

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through his Written Deposition but also by producing documents.

In this case, the complainant had purchased a “Health Protector Policy” bearing No. 52974926 along with her spouse valid from 28.07.2018 to 27.07.2019 for a sum insured of Rs. 50,000/- (Rupees Fifty Thousand) only each from the O.P. No.1. Thus this Commission does not hesitate to hold that as per the Consume Protection Act, 1986 and Consumer Protection Act- 2019 the complainant is a very much consumer in this case.

From the evidences and documents of the complainant that the O.P. No.1 Insurance Company repudiated the claim of the complainant vide letter dated 25.02.2019 stating that “the patient aged 57 years was admitted with complaints of Acid reflux since past 10 years and patient underwent Ba sallow along with endoscopy and other investigations. No active treatment given as per revealed by pharmacy bill break up. It appears that patient was admitted only for investigation and evaluation as no active treatment done as per policy terms and condition hospitalization for evaluation and diagnostic purpose is not payable. Hence the claim is denied”. In this case, the O.P. Insurance Company has the liability to prove the ground of repudiation by the way of evidence by calling the treating doctor, hospital authority or any other expert by the way of summon. But the O.P. Insurance Company has not adopted the procedure and this Commission is of the view that the plea and argument advanced on behalf of the O.P. Insurance Company has no leg to stand upon. So, the argument on behalf of the O.P. Insurance Company is turned down. There was a deficiency in service in the part of the O.P. Insurance Company.

So, as per the above discussion it is very much clear that there was a deficiency of service from the part of O.P.s and this Commission has no doubt that there was a deficiency of services from the part of the O.P.s The O.P.s are jointly and severally liable in this case. The complainant is entitled to get Rs. 35,000/- (Rupees Thirty Five Thousand) only to the complainant from the O.P.s by an account payee cheque with a simple interest @ 6% per annum from the date of filing of this case, i.e., 04.06.2019  within 45 (forty five) days from the date of this order. The complainant is also entitled to get Rs. 10,000/- (Rupees Ten Thousand) only for mental pain, agony, harassment and Rs. 10,000/- (Rupees Ten Thousand) only for litigation cost from the O.P. and the O.P. is also directed to deposit Rs. 10,000/- (Rupees Ten Thousand) only to Consumer Legal Aid Account of this Commission within 45 (forty five) days from the date of this order.  

Hence, it is,

O R D E R  E D

That the Consumer Case No. 32/2019 be and same is allowed on contest against the Opposite Party (O.P.) No.1 The Branch Head, IFFCO TOKIO General Insurance Company Ltd. and the O.P. No.2 The Branch Head, Peerless Financial Produces Distribution Ltd., Corporate Agent of IFFCO TOKIO General Insurance Co. Ltd. The O.P.s are jointly and severally liable in this case.  

The complainant is entitled to get Rs. 35,000/- (Rupees Thirty Five Thousand) only to the complainant from the O.P.s by an account payee cheque with a simple interest @ 6% per annum from the date of filing of this case, i.e., 04.06.2019  within 45 (forty five) days from the date of this order. The complainant is also entitled to get Rs. 10,000/- (Rupees Ten Thousand) only for mental pain, agony, harassment and Rs. 10,000/- (Rupees Ten Thousand) only for litigation cost from the O.P. and the O.P. is also directed to deposit Rs. 10,000/- (Rupees Ten Thousand) only to Consumer Legal Aid Account of this Commission within 45 (forty five) days from the date of this order. 

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.