Ld. Advocate for the parties are present. Judgement is ready, It is pronounced in open commission in 7 pages 4 separate sheet of paper.

       It is ordered that the CC/68/2019 be and the same is allowed on contest.

BY -    SRI ASISH DEB, PRESIDENT

1. The brief factual matrix leading to the complainant’s case is that Complainant has permanent residence within the Jurisdiction of this Commission. The complainant is a natural consumer of the opposite party as per law, complainant is the Health Insurance Policy Holder of the Opposite Party i.e. ‘Birla Sun Life Insurance Company’ under Cancer Shield Plan and the Policy No. is 007145315, issued on 28.10.2016, which has annual premium of Rs. 5,802/- and the sum assured of Rs. 36,00,000/-. On 17.05.2017, the complainant visited to the Doctor for some health problems and the said doctor suggested him for some blood tests. As per instruction of the Doctor, the complainant did the blood tests and after receiving the reports of those tests, complainant became stunt to know that he is suffering from Chronic Myelogenous Leukemia (CML) and Philadelphia Positive. The complainant submitted the health insurance claim along with all original documents on 28.06.2017 to the O.P. Insurance Company by taking proper acknowledgment being No. 086/2017/JUN/RIDER/000009. On 15.12.2017, the complainant received one letter from the head of Claims of the said O.P. Insurance Company with some fictitious and vague plea for rejecting the said claim. The O.P. Insurance Company also suggested in their letter to submit the Histopathology Report and to send written representation for Re-examination. As per the advice of the Opposite Party, the Complainant submitted the Histopathology Report, Re-examination letter of the Cancer shield Claim along with other require documents to the office of O.P. 1 at Haldia on 24.01.2018. The Complainant also sent the Histopathology Report along with the Re-examination letter to the Grievance Redressal Committee at Thane on 25.01.2018. After receiving all those documents, both O.Ps did not take any single step regarding this matter. The Complainant further informs that he has been under treatment till date. On 01.08.2018, the Complainant sent a legal notice through his Ld. Advocate to both the O.Ps but after receiving the same they did not take any necessary steps to approve the above said claim but the Ops sent two letters dated 30.08.2018 and 26.09.2018 with some false & fabricated stories to approve the claim. Owing to gross negligence of duty and the unfair trade practice of O.Ps the complainant had fallen in a mental depression and also he has been suffering from mental anxiety and agony for which the health condition of the complainant becomes too much complicated.  The cause of action of this case has arose on and from 15/12/2017, the date of rejecting the claim and on wards. In the above circumstance, the complainant prays for compensation claim from the Opposite parties as under; Medical Insurance claim of early stage of Cancer Rs. 10,80,000/-, Running Medical treatment Exp. & other. Rs. 90,000/-, Mental Agony & Anxiety Rs. 50,000/-, Litigation Cost. Rs. 10,000/-. To pass any other order/orders, which the commission may deem fit and proper in law and in equity.

2.   Upon notice ops have contested the case by filing written version against the complaint. They have contended inter alia that the present complaint is false, frivolous, and vexatious and an abuse of the process of this Hon’ble Forum and therefore the same is liable to be dismissed .The Complainant has not disclosed any cause of action in order to proceed against the opposite parties. It is submitted that the policy is a legal contract between the policy holder & the insurer and parties to it are bound by its terms and conditions. Admittedly, the proposal form was signed by the policy holder and on the basis of the said proposal form, the subject policy was issued by the opposite party. Based on the information and declaration contained in the application form and believing the same to be true and also upon receipt of the duly filled form along the opposite parties issued the policy bearing No. 007145315 (said policy) in the name of the complainant. The Life Assured/Proposer was given detailed description about the features of the said policy and was also apprised of its terms and conditions before signing of the said application. The opposite parties submit that believing the information given in the Proposal/Application form to be true and correct in all aspects and as per the underwriting norms of the company, the said proposal was accepted by the company and Life Assured was issued the subject policy. That the life Assured/Proposer only after being completely aware of the said policy premium, terms, risks and consequences of the policy submitted the proposal form for insurance with his free will and consent.  According to the terms and conditions of the BSLI Cancer Shield LCV Term 20 the relevant provision under the policy is provided as under Early Stage of Cancer states that: The diagnosis of Cancer must be established by histological evidence of and be confirmed by an independent medical practitioner who is also an oncologist in the relevant field. It is further submitted that, according to the terms and conditions of the BSLI Cancer Shield KCV Term 20 under the clause Cancer Specific Definitions: Major Stage of Cancer clause also states that A malignant tumor characterized by the uncontrolled growth and spread a malignant cell with invasion and destruction of normal tissues. The diagnosis must be supported by histological evidence of malignancy and confirmed by a pathologist. The term cancer includes, but is not limited to leukaemia, lymphoma and sarcoma. As per the relevant provision under the subject policy is as follows; it is pertinent to mention that the complainant was diagnosed with Chronic Myelogenous Leukaemia. It is a slowly progressing and uncommon type of blood-cell cancer that begins in the bone marrow. The complaint submitted the report of disease approximately 7 months from the year of the policy issuance. It is medically proven that for developing Chronic Myelogenous Leukaemia it takes a longer time which is more than 7 months. Thereafter the said claim was duly examined and it was noted that the complainant failed to submit the mandatory Histopathology report that the opposite parties had intimated the complainant vide letter dated September 23, 2017 wherein the Opposite Party mentioned that w.r.t. to the subject policy the said claim was under process and waiting for non receipt of below mentioned documents. All previous and present hospitalization/ consultation papers. All investigation reports supporting to diagnosis i.e. histopathology (Bone Marrow) report. All leave records of the LA from the year 2016 till date. A copy of letter dated September 23, 2017 is annexed herewith and marked as Annexure-F. That even after giving the reminder notice dated September 23,2017 the Opposite Party sent a letter dated December 15, 2017 wherein it stated that after receiving the claim intimation on June 28,2017, the claim was carefully examined on the basis of the documents submitted by the complainant wherein it was found that the health status as per the medical reports submitted by the complainant does not fulfill the contract definition of ‘Cancer Shield Claim’. It is pertinent to mention that as per the medical documents, the complainant failed to submit Histopathology report i.e. for the period during which the complainant diagnosed with Chronic MyelogenousLeukaemia i.e. prior to May 2017. Therefore the said claim was duly rejected and the same was duly intimated to the complainant vide letter dated 15.12.2017. Thereafter complainant submitted Histopathology report dated 11.01.2018 which is after the diagnosis of CML (Chronic Myelongeous Leukemia) in May 2017. The report submitted by the complainant on 24.01.2018 i.e. The LA was diagnosed with blood cancer in May 2017 however the histopathology/biopsy report submitted by the complainant is dated 11^th Jan, 2018 which is not applicable to get benefit under the policy. The complainant is required to provide the Biopsy Report prior to May 2017. The opposite parties have always acted within the purview of law and as per terms and conditions of the subject policy. The complainant is neither entitled to any relief whatsoever nor entitled to claim and recover anything from the opposite parties in the light of what is stated above. Further the complainant is not entitled to get any compensation and has not suffered any mental or physical agony and/or any loss and hence cannot claim any relief from the opposite parties.

3. Points for determination are:

1. Is the case maintainable in its present form and in law?                
2. Is the complainant entitled to get the relief(s) as prayed for?

4. Decision with reasons

      5.   Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

      6.      Heard arguments of the Learned Counsel for both parties. We have given our thoughtful consideration to the arguments from both sides. We have carefully perused and assessed the affidavit of the complainant, written version filed by Ops evidence of both parties.

     7. Having regards had to the facts and circumstances of the case and other materials on record, it appears that the instant case is maintainable in its present form and in law.

     8. Now, coming to a total appraisal of evidence on record , it is evident that indisputably;

  A. The complainant  is  the Health Insurance Policy Holder of the Opposite Party i.e. ‘Birla Sun Life Insurance Company’ under Cancer Shield Plan and the Policy No. is 007145315, issued on 28.10.2016, which has annual premium of Rs. 5,802/- and the sum assured of Rs. 36,00,000/-.

   B. The Complainant submitted the health insurance claim along with all original documents on 28.06.2017 to the O.P. Insurance Company by taking proper acknowledgment being no. 086/2017/JUN/RIDER/000009. The said claim was duly rejected and the same was duly intimated to the complainant vide letter dated 15.12.2017.

   C. Thereafter complainant again submitted Histopathology report dated 11.01.2018 which is after the diagnosis of CML (Chronic Myelongeous Leukemia) in May 2017, for reconsideration of the claim.

9.  Now, coming to ground of repudiation by the ops it appears that the first   repudiation was based on the according to the terms and conditions of the BSLI Cancer Shield LCV Term 20 the relevant provision under the policy is provided as under Early Stage of Cancer states that: The diagnosis of Cancer must be established by histological evidence of and be confirmed by an independent medical practitioner who is also an oncologist in the relevant field. It is further submitted that, according to the terms and conditions of the BSLI Cancer Shield KCV Term 20 under the clause Cancer Specific Definitions:Major Stage of Cancer clause also states that A malignant tumor characterized by the uncontrolled growth and spread a malignant cell with invasion and destruction of normal tissues. The diagnosis must be supported by histological evidence of malignancy and confirmed by a pathologist. The term cancer includes, but is not limited to leukaemia, lymphoma and sarcoma. As per the relevant provision under the subject policy is as follows; it is pertinent to mention that the complainant was diagnosed with Chronic Myelogenous Leukaemia. It is a slowly progressing and uncommon type of blood-cell cancer that begins in the bone marrow. The complaint submitted the report of disease approximately 7 months from the year of the policy issuance. It is medically proven that for developing Chronic Myelogenous Leukaemia it takes a longer time which is more than 7 months. Thereafter the said claim was duly examined and it was noted that the complainant failed to submit the mandatory Histopathology report that the opposite parties had intimated the complainant vide letter dated September 23, 2017. Regarding the matter reconsideration of the claim it is submitted by the ops that thereafter complainant submitted Histopathology report dated 11.01.2018 which is after the diagnosis of CML (Chronic Myelongeous Leukemia) in May 2017. The report submitted by the complainant on 24.01.2018 i.e. The LA was diagnosed with blood cancer in May 2017 however the histopathology/biopsy report submitted by the complainant is dated 11^th Jan, 2018 which is not applicable to get benefit under the policy. The complainant is required to provide the Biopsy Report prior to May 2017.

         10. Now, on assessing the reasons and justification of grounds of repudiation or rejection of the claim this commission observes that the grounds assigned by the ops have got no leg to stand upon. Firstly, the insured complainant first came to know about his disease on 17.05.2017, when he visited to the Doctor for some health problems and the said doctor suggested him for some blood tests. As per instruction of the Doctor, the Complainant did the blood tests and after receiving the reports of those tests, complainant became stunt to know that he is suffering from Chronic Myelogenous Leukemia (CML) and Philadelphia Positive. So it is not possible for him to file any documents or reports regarding suffering from Chronic Myelogenous Leukemia (CML) and Philadelphia Positive prior to that period. The ops have not filed any evidence to establish its contention that complainant might have suppressed facts of his disease longer prior to issuance of Insurance Policy. If it is the case of the ops that the complainant had the knowledge of his such disease prior to issuance of policy it is the burden of proof of the same is of ops only. Secondly, the complainant although could not submit Histopathology report on the first instance yet he submitted the Histopathology report dated 11.01.2018 subsequently .The ops did not entertain the report on the plea that The LA was diagnosed with blood cancer in May 2017 however the histopathology/biopsy report submitted by the complainant is dated 11^th Jan, 2018 which is not applicable to get benefit under the policy. The complainant is required to provide the Biopsy Report prior to May 2017. How the complainant can be asked to prove the negative i.e. to provide the Biopsy Report prior to May 2017 when the complainant first came to know about his disease on 17.05.2017. Moreover, Prof (Dr) Tuphan Kanti Dolai ,a Hematologist and oncologist once attached with AIIMS ,New Delhi certified that the patient ( complainant) has been suffering from CML. He being the specialist oncologist and Hematologist further certified and opined that the Histopathology Report is not essential for such diagnosis. For diagnosis bone marrow examination can be based. On 20.06. 2017 added his certificate with the claim petition. The ops have not been able to brush aside the said certificate and opinion by any authentic counter medical opinion from its side. The reasons assigned by the ops for repudiation of the claim are totally baseless and unfounded. Moreover, the ops never opted for any medical test of the proposer before issuing Insurance policy of a big amount of sum assured. The ops Insurance Company, which is bound by its business policy after collecting the premium to settle the claim properly, has failed to discharge its liability. The ops have set instances of unfair trade practice and deficiency of service. Consequently, the complainant is entitled to get Medical Insurance claim of early stage of Cancer Rs. 10,80,000/-, along with interest @ 7 % per annum from the date of filing of this case till the date of actual payment , Rs. 10,000/-, for Mental  agony and Rs. 5,000/-as towards Litigation Cost. 

        11. Both the points are decided accordingly in favour of the complainant.

              12. Resultantly, the complaint case succeeds.

              13. Hence, it is

 O R D E R E D

         14. That the CC/68 of 2019 be and the same is allowed on contest against the Opposite parties

            15.  The Opposite parties, who are jointly and severally liable, are hereby directed to pay Rs. 10,80,000/-, alongwith interest @ 7 % per annum from the date of filing of this case till the date of actual payment, Rs. 10,000/-, for Mental agony  and Rs. 5,000/- as towards Litigation Cost within 45 days from the date of this order.

         16. The complainant will be at liberty to put the order into execution if so requires.

 17. File be consigned to record section along with a copy of this   judgment.