Case No. CC/ 30/2019
FINAL ORDER/JUDGMENT
Sudeb Mitra, President:-
The complt’s case as culled out from the available materials of the complaint reflects that the complainant and his wife Gopa Chakraborty were the Medical Insurance policy holders of the Oriental Insurance Com. Ltd. since dtd. 30.08.2010 up to 26.08.2018 uninterruptedly with sum assured starting from Rs- 2,00,000/- that gradually increased up to Rs- 5,00,000/- and vide insurance policy no 311330/48/2011/194 for the period from 30.08.2010 till 29.08.2011 and that medical insurance coverage under the Oriental Insurance Co. Ltd. continued uninterruptedly for the tenure of one year terms vide separate medical insurance coverage policy for each year from 2010 to 2018 and finally when the complainant & his wife were under the medical insurance coverage of the Oriental Insurance Com. Ltd. from 27.08.2017 to 26.08.2018 for sum insured Rs- 5,00,000/- vide policy no 311901/48/2018/1290 then, being induced by tempting lucrative benefits offered by the O.P. no 1 to 3 of this complaint case, switched over under the portability provisions from Oriental Insurance Com. Ltd. to Bajaj Allianz General Insurance Com. Ltd. i.e. represented by the O.Ps no 1 to 3 in this case and purchased Medical Insurance Policy vide certificate no Og-19-2410-6021-00000007 for sum assured of Rs- 10,00,000/-(ten lakhs) only for the period from 31.07.2018 to 29.07.2019, midnight, by paying gross premium of the Rs- 16,546/- for getting the medical insurance coverage for them i.e. the complainant and his wife under the afore stated Medical Insurance Policy.
It is the specific case of the complainant that the afore stated policy was scheduled to cover the risk of indemnifying the inpatient treatment expenses for a period of more than 24 hours pre hospitalization for any ailment & surgical treatment at any Nursing Home/Hospital including cashless facility.
This is forthcoming from the complaint that on 27.01.2019, the complainant had taken admission in O.P. no 4’s Medical Institute as ‘Inpatient’ and he had undergone prostatectomy since he was diagnosed to have Prostatomegaly with Bladder outlet obstruction following history of Haemeturia and he was discharged from the Medical Institute of the O.P. no 4 on 02.02.2019.
This is asserted by the complainant that the O.P’s no 1&2 refused to provide him
‘cashless facility’, so he had to pay to the O.P. no 4 Rs- 1,76,066/- before his discharge on 02.02.2019. Later the complt. on 14.02.2019, on submitting his medical expenses claim with the O.Ps no 1 to 3, had received from the concerned O.P. side direction to submit all his originals bills and payment receipts as per regulation of the said O.P. side for procuring reimbursement procedure and the complainant compiled with that direction. This is agitated by the complainant by filing this complaint that the O.Ps no 1 to 3 with held all his original medical bills and as instead of making reimbursement of the medical expenses incurred by the complainant, the said O.P. side sent him letter dtd. 08.02.2019 and alleging the ground of complt’s concealment of fact of pre-existing disease of the complt. that were with the complt. since prior to the complt’s purchasing medical insurance policy from the O.Ps no 1 to 3, informed the complt. that they have invoked cancellation clause and stated the said policy will automatically be cancelled within 15 days of receipt of said notice and coverage of that policy will be terminated ‘ab-initio’ from the date of inception of that policy entitling the complaint receipt of prorate refund of premium paid by him for the unexpired period of that policy.
It is the specific claim of the complainant that the O.P’s no 1 to 3 can’t take up that course of action which is illegal as his claims are genuine and by filing this complaint, alleging deficiency in service, complt. has prayed for reliefs as stated in the prayer portion of the complaint, filed in this case from his end.
The O.Ps no 1 to 3 filed W.V., denied all the materials allegations as averred in the complaint and contended inter alia that the complainant had concealed from them the material facts of his pre existing disease prevalent with him since much prior to his purchasing from them, the medical insurance policy on 31.07.2018 and since by making non disclosure of those facts of his sufferings of enlargement of prostate Gland, Bladder outlet obstruction, Diabetes Mellitus, High Blood Pressure for years together, existing with him from the point of time, much prior to his purchasing Medical Insurance Policy of the O.P. Insurance company, the complt. has made concealment of material facts, so the complt. had committed fraud with them and thereby compelled them to cancel that medical insurance policy & to repudiate the mediclaim benefits for misrepresentation and violation of the relevant stipulations/clause of entering into the contract with them to purchase from the O.Ps no 1 to 3 the concerned mediclaim policy.
This is contended by the O.Ps no 1 to 3 that the complt. hadn’t filled up the ‘proposal form’ and concealed the material facts of his preexisting diseases in the course of filling up that form and as he has not complied with the terms & conditions of the concerned insurance policy of the O.Ps no 1 to 3, so his claim prayer is repudiated.
By filing W.V., in this complaint, the O.Ps no 1 to3 have prayed for the dismissal of the complaint.
The O.P. no 4 filed W.V., standing on a different footing than that of the O.Ps no 1 to 3, stated about the fact of the complt’s getting admitted in the O.P. no 4’s Medical Institute for treatment and undergoing surgery, covering a period from 27.01.2019 to 02.02.219 over there and his subsequent dischargement from there on his making payment of all the expenses for his treatment & surgery provided to him by the O.P. no 4’s Medical Institute, without having cashless treatment facility.
By filing W.V. in this complaint, this O.P. no 4 denied any deficiency in service, caused towards the complt. by thee concerned Medical Institute, represented by the O.P. no 4 in this complaint, and prayed for the dismissal of the complaint case.
In the light of the contentions of the contesting parties, as reflected in the previous paragraphs of this judgment/order, the following issues necessarily came up for consideration to reach the decision in respect of the bone of contentions in this case.
POINTS FOE CONSIDERATION/ISSUES
- Is this complainant a consumer as per Sec 2 (i) (d) (ii) of the C.P. Act of 1986?
- Has this Forum/Commission Jurisdiction to entertain the instant complaint?
- Has the O.Ps caused any deficiency in service towards the complt., as alleged in this complaint and are they liable in anyway, for such deficiency?
- Whether the complt. is entitled to get relief/reliefs as prayed for in this complaint?
DECISION WITH REASONS
We have gone through relevant papers furnished from the end of the contesting parties of this complaint case, in support of their respective claims and counter claims and heard the
contesting parties of this complaint at length besides their advanced arguments to substantiate their respective standpoints against each other. On the basis of the same, the discussions of the issues should be reached.
Issues No 1&2:-
Both these two issues are taken up together for discussion at first since the same are pertinent to be decided first as the results of the same work as determining factor to ascertain as to whether the discussion for the remaining other issues of this complaint case be essential or the same have been reduced into redundancy.
Having regard to the scopes of Sec 2 (i)(d) clause(ii) of the C.P. Act of 1986,(since this complaint was filed on 09.04.2019) and the respective roles of the O.Ps no 1 to 3 and O.P. no 4, played with the complainant of this case, we feel inclined to hold that the complainant was a consumer and the O.Ps all in different ways and manners were service providers towards the complt./beneficiary to those services provided to the complt., in respect of this complaint.
This further appears, having regard to the residential address of the complainant of this complaint and having regard to the working address of the O.P. no 1 of this complaint, in consonance with the scope of Sec 11 of the C.P. Act of 1986, this Forum/Commission has territorial jurisdiction to deal with this case.
The factual matrix specially the claim placed in this complaint also lends adequate ground to hold that this Forum/Commission has pecuniary jurisdiction too to deal with this complaint.
This further transpires that this complaint case was filed within the time stipulation for filing this complaint from the point of time of arising of the cause of action in this complaint, as contemplated U/S 24A of C.P. Act of 1986.
Considering all these, we find that this complaint case can be dealt with by this Forum/Commission in its present form.
Accordingly, both these two issues are determined and decided in favour of the complainant and are thus disposed of on contest.
Issues No 3&4:-
At this stage both these two issues are taken up for discussion at a time to prevent prolixity and repetition and also on the other hand for the sake of convenience and brevity.
This is the specific case of the complt. and an admitted fact that the complt. of this case for himself as well as his wife had been taking medical claim policy from Oriental Insurance Co. Ltd. against paying premium as determined by the insurance company from August 2010 uninterruptedly till 2018 and after that under portability scheme, the complt. accepted the switching over policy of the O.Ps no 1 to 3.
It is also not disputed in this case that the sum assured for the complt. was Rs- 5,00,000/- with the Oriental Insurance Co. Ltd. in 2018 and when the policy was switched over to the O.Ps no 1 to 3, the sum insured was enhanced to Rs- 10,00,000/- against payment of increased rate of premium, fixed up by the O.Ps no 1 to 3.
Here in this case since because of the complainant’s availing himself of this portability facility of medical insurance policy though the sum assured was enhanced to Rs- 10,00,000/- from Rs- 5,00,000/- yet there was scope for the O.Ps no 1 to 3 of this complaint case to investigate to ascertain as to whether the complainant had any short comings or prevalence of pre-existing disease(s) before their issuing new medical insurance policy coverage to the complt. Inspite the getting that scope, as the available materials of this case record reveals to consider and assess that fact with legitimate inference, did the O.Ps no 1 to 3 of this case ever avail themselves of that scopes to investigate and ascertain to substantiate their claim that the complt. had obtained new medical insurance policy from them allegedly by concealment of material fact that he had pre-existing diseases like enlargement of prostate Gland, Bladder outlet obstruction, Diabetes Mellitus, Hypertension? The answer is ‘NO’ against the O.Ps, as it is apparent in the absence of any investigation report or relevant documents from the end of the O.P.
It is forthcoming from the case record without being refuted by the O.Ps no 1 to 3 of this complaint that the complainant’s previous medical insurance policy with the Oriental Insurance Co. Ltd. was without break for a continuous span of time over the years that lent scope to the complt. and the O.Ps no 1 to 3 of this complaint, from their different footings to agree and entertain the portability scheme of the medical insurance and the procedure of availing themselves of that schemes was without any technical/legal flaw and now
irrespective of the fact as to whether the O.Ps no 1 to 3 had investigated or not as to the existence of any pre-existing disease of the complt. as the O.Ps now claim, since the O.Ps of this complaint had already issued mediclaim insurance policy to the complt. by accepting premium from him for that policy, rate of which was determined/fixed by them, then in this backdrop of existing fact, now the O.Ps no 1 to 3 of this complaint cannot cancel that policy. Once the portability scheme has been adopted by the O.Ps no 1 to 3, they cannot now decline the mediclaim at least up to the sum assured to the complt. in the previous medical insurance policy of the complt. as that medical insurance policy was continuing uninterruptedly in favour of the complt. from 2010 when the new insurance policy was given effect to the complt. on and from 31.07.2018 from end of the O.Ps no 1 to 3 of this complaint. It is pertinent to consider and reflect that the sum assured to the complt. in respect of his medical insurance given by the previous insurance policy issued in favour of the complt. by the Oriental Insurance Co. Ltd. was Rs- 5,00,000/-. Here in this case the complt’s medical insurance claim is Rs- 1,76,066/- and it is well below/within the sum of previous medical insurance policy of the complt. So there remains little scopes, sustainable in the eye of law in favour of the O.Ps no 1 to 3 of this complaint either to repudiate the complt’s medical insurance claim or to cancel the medical insurance policy of the complt. purchased by him from the O.Ps under portability scheme.
Having regard to the submissions of the contesting parties of this case and basing on the findings of the citation referred by the Ld. Counsel for the complt. on this point vide the Revision Petition no 2498 of 2016 pronounced on 16.12.2016 by the Hon’ble N.C.D.R.C., we have reached the stand, as just discussed in the previous paragraphs of this judgment.
Besides, it is forthcoming from the available materials on record that the O.Ps of this complaint were basing on some Xerox copies of documents to substantiate their claim that the complt. had Hypertension for 5 years, Diabetes Mellitus for 4 to 5 years running since much prior to the complt’s taking new medical insurance policy from the O.Ps. How could the O.Ps no 1 to 3 ascertain and conclude on the basis of the Xerox document, without it’s being duly proved according to law and without any medical data to support the authenticity of that Xerox document, that the complt. had such types of diseases pre-existing and that too for such span of time or the complt. was completely aware of the pre-existence of those diseases with him running since much prior to his taking new insurance policy with the O.Ps of this case by availing himself of portability scheme, or he had done so, at the cost of the O.Ps deceitfully as alleged by them, remained unanswered and unexplained by the O.Ps thoroughly.
This is needless to reiterate that mere filing of document in court doesn’t amount to proof of its contents. Even admission of a documents in court may amount to admission of its contents but not their truth and documents not having being produced and marked as required under the Evidence Act, can’t be relied upon by court(Ref. 2010(4) S.C.C. 491).
Here in this case ‘Medical Report’ of the complainant issued by the O.P. no 4 of this complaint case i.e. Park Clinic reflected in the form of ‘Discharge Summary’ dtd. 27.01.2019 that the complt. had Prostatomegaly with Bladder outlet obstruction as final diagnosis and as the accessory disease of the complt., this report dtd. 27.01.2019 just reflected Hypertension, Diabetes Mellitus. So, how the O.Ps can claim, in the absence of any legally sustainable and appreciable proof, backed by medical science, that the complt. had pre-existing diseases as referred above, at the time of the complt’s purchasing medical insurance policy from the O.Ps no 1 to 3 and that too the complt. was aware of it and he had intentionally concealed that, remained unexplained by these O.Ps too, and that results in categorising their instant allegations brought against the complt. not only baseless but also meritless.
The O.Ps no 1 to 3 too could not vindicate, supported by any cogent evidence, that the complt. was aware of existence of those diseases prevalent with him and even then he had intentionally concealed that fact from the O.Ps no 1 to 3 and induced them to help the complt. to obtain the new medical insurance policy from them, deceitfully at their cost. So, the claim of the O.Ps no 1 to 3 that the complt. had deceived them deliberately by concealing his pre-existing disease and he had thereby deceitfully procured new medical insurance policy from them appears to be meritless, insignificant specially when neither the O.Ps no 1 to 3 had availed themselves of the scope to investigate about the complt’s alleged existence of illness prior to their granting him new medical insurance policy from their end to the complt. on portability scheme nor had they investigated nor could they obtain/find anything adverse against the complt. to rationalise their claim as to his(complt’s) pre-existing illnesses prior to their granting him the new insurance medical policy from their end and now we feel inclined to hold in this backdrop that for the purpose of avoiding their liability to reimburse the medical expenses, incurred by the complt. even he was under the medical insurance coverage of the O.Ps no 1 to 3 under the portability scheme, the O.Ps no 1 to 3 are raising the plea of complt’s concealment of his pre-existing diseases to rationalise or justify their stand points to repudiate the complt’s mediclaim under the insurance coverage of the O.Ps no1 to 3 and to cancel the new insurance policy existing in between the O.Ps no 1 to 3 and the complt. at the time of the medical crisis of the complainant, as referred in this case.
The complt. could not be proved to have filed baseless, fabricated, inflated bills to seek the unjust mediclaim relief from the O.Ps no 1 to 3. No iota of documentary evidence or proof is forthcoming on that aspect.
The role of the O.P. no 4 in this complaint case is found very limited and the role of the O.P. no 4 in this complaint case appears to have no impact in dealing with the crux of the problems involved in this complaint. The O.Ps no 1 to 3 of this complaint have not ever questioned the O.P. no 4 in this case as to the incorrectness of the medical bills, submitted by the complainant, to seek the medical insurance benefits from the O.Ps no 1 to 3 due for his remaining under the medical insurance coverage of the O.Ps no 1 to 3 at time of the complt’s receiving medical attention and undergoing surgical intervention in the clinic of the O.P. no 4 of this complaint case.
Since on the basis of the reasons as discussed above, the allegations against the complainant brought by the O.Ps no 1 to 3 of this complaint pale into insignificance as baseless and since the assertion of the complainant is found true to the effect that the O.Ps no 1 to 3 had, by cancelling their insurance policy with the complt. practically declined to pay the complt. his genuine medical insurance claim benefit so this conclusion can safely be arrived that the O.Ps no 1 to 3 of this complaint had caused deficiency in service towards the complt. by repudiating his mediclaim benefits which they were bound to pay to him and for their cancelling the medical insurance policy purchased from them by the complt. under portability scheme by paying premium as determined by the O.Ps no 1 to 3 of this complaint case.
Accordingly, the issue no 3 is decided in favour of the complt. on the basis of the discussion as reflected above.
In the premises, consequently the issue no 4 is decided in favour of the complt. in this case, in part.
Hence it is…
ORDERED
That the instant complaint case no 30/2019 is allowed in part, on contest, but without cost, against the O.Ps no 1 to 3 of this complaint case and dismissed on contest against the O.P. no 4 but without cost.
The complainant Debabrata Chakraborty is entitled to get Rs- 1,76,066/- only(Rs- one lakh seventy six thousand and sixty six only) for the medical expenses incurred by him from the O.P. no 1 to 3 of this complaint case.
The complt. is also entitled to get Rs- 30,000/- (Thirty thousand) only and Rs- 5,000/-(five thousand) only respectively as compensation for deficiency in service and litigation cost respectively in this case.
The O.Ps no 1 to 3 of this complaint case are directed to pay jointly and/or severally these afore stated amount of money ( Rs-1,76,066 + 30,000/- + 5,000/-) towards the complt. of this case within 06(six) weeks from the date of pronouncement of the final order/judgment in this complaint case. Failure of the O.Ps no 1 to 3 of this complt. to comply with this order shall result in their paying jointly and/or severally cost of Rs- 100/- for each day’s delay from the stipulated time span of making such payment, directed in this order. The accumulated amount of this particular payment of cost, if any shall be deposited in the ‘Sate Consumer welfare Fund’ West Bengal.
Let a plain copy of this order be supplied to the complt. and the O.Ps all forthwith either by hand or by Regd. Post with A/D, free of cost for information and necessary action, as per law & rules.
