The petitioner Tapan Kr. Bhowmick filed a petition u/s.12 of the Consumer Protection Act for seeking relief.

The fact of the case as revealed from the petition as well as from the evidence is that the complainant Tapan Kr. Bhowmick purchased a health plus policy vide No.455103324 on 25.02.2008 which was valid up to 25.02.2028 and the complainant regularly paid the premium of the said policy. From the petition it is further revealed that in 2014 the complainant Tapan Kr. Bhowmick faced some physical problem for which he started visiting several doctors in several places, but ultimately finding no relief , lastly he went to the Apollo Hospital at Chennai and after clinical examination at Chennai Hospital it was found that the complainant was suffering Schwaonma which is Tumour of nerve and he was admitted in the said hospital at Chennai on 16.12.14 and the operation was done on 18.12.2014 and he was discharged from the said hospital on 26.02.2014. After discharge from the Apollo Hospital he was staying there up to 18.01.2015 for dressing of the wound and he returned back on 19.01.2015. The total expenses of the hospital for the operation was Rs.2,96,040=08 Paise. The petitioner in due time inform the matter officially to the O.P and petitioner supplied all the relevant documents according to the requirement of the O.P. The complainant/petitioner waited for a long time but no reply was given from the side of the O.P. Lastly on 18.12.15 the O.P.No.2 sent a letter to the complainant/petitioner stating that the claim has been repudiated mentioning that the claim was considered for hospital cash benefit for 8 days but major surgical benefit could not be considered as the procedure done i.e. Hemilaminectomy with Partialtumour debuckling not covered under the policy. After receiving the letter from the O.P the complainant and his family became perplexed. The act of the activities of the O.P amounts to deficiency of service against their customer as the complainant has been unnecessary harassed. The claimant has claimed Rs.2,96,040=08 Paise with interest, litigation cost of Rs.10,000/- and compensation of Rs.1,90,000/- for mental pain and agony.

The petition has been contested by the O.Ps by filing the written version denying all the material allegations leveled against them contending inter alia that the petition is not at all maintainable in law and the facts of the petition is barred by principle of estoppels, waiver and law of limitation. The complainant did not come with clean hand and he has suppressed all the material facts. The definite defence case is that the claim of the complainant in the prescribed proforma was sent to the T.P.A, E-Mediteck-T.P.A Services Ltd., Kolkata on 31.01.2015. All the papers scrutinized by the T.P.A and settled the matter at Rs.10,400/-. The said T.P.A authority is the Licensed Third Party Administrator under the Insurance Regulatory and Development Authority ( Third Party Administrator Health Services) Regulation 2011 and the T.P.A has got every right to adjudicate the claim. The T.P.A is an independent body under the said I.R.D.A. In such cases the Insurance Company has to act according to the decision of the T.P.A. The further definite defence case is that the complainant undergone for surgery for Lower Lumber Paraspinal Schwannoma which is not covered under the policy. As such the petition is liable to be rejected.

During the trial the complainant Tapan Kr. Bhowmick was examined as P.W.1 and cross examined. He files some documents. On the other hand the O.P did not adduce any evidence to their defence.

Now, the point for determination whether the claimant is entitled to get the relief as prayed for.

                                       DECISION WITH REASONS

At the time of argument the Ld. Lawyer of the O.P submitted that the case is not maintainable as the T.P.A has not been party in this case. According to the argument as advanced by the Ld. Lawyer of the O.P is that the T.P.A. is the necessary party. Without impleading the T.P.A the case cannot proceed in this case. The Ld. Lawyer for the O.P filed written argument.

On the other hand Ld. Lawyer of the complainant side submitted that the policy was purchased from the L.I.C not from the T.P.A. The contract is between the claimant and the O.Ps. The contract is not between the complainant and the T.P.A. Moreover, in the written version the O.P did not specifically mention that the case is bad for non joinder of  necessary parties and this case is not proceeded unless and until the T.P.A is not made party in this case. The court is in the same view of the submission of the Ld. Lawyer for the complainant that the agreement was executed in between the complainant and the O.P not between the T.P.A. So, it is not necessary to make the T.P.A as party in this case. The function of the T.P.A. is to assist the O.P. So, the argument raised by the Ld. Lawyer of the O.P that the T.P.A is the necessary party in this case and the case cannot proceed without impleading the T.P.A is not tenable.

Next point is to be considered whether the complainant is entitled to get the amount for the treatment and surgery of Lower Limber Paraspinal Schwannoma’ which is not included in the list of major surgical benefit Annexure, So, MSB is paid. According to the argument as argued by the Ld. Lawyer of the O.P is that the treatment for Lower Lumber Paraspinal Schwannoma which is not included in the list of major surgical benefit Annexure , so no benefit can be given under the major surgery. On the other hand the Ld.lawyer for the complainant submits that in the booklet which is produce by the Ld. Lawyer of the O.P it is found that major surgical benefit is available. But the problem was cropped up on the basis of certificate granted by the Dr.Sidhyartha Ghosh of Apollo Hospital who operated the complainant that the disease may be generic. According to the argument as advanced by the Ld. Lawyer of the O.Ps is that due to the reason the claim was repudiated as the disease was generic. But in the opinion of this Forum is that the certificate of the doctor states that it may be. The doctor is not sure that it was generic. So, the benefit will go in favour of the complainant. As the doctor’s opinion that it may be , nowhere in the certificate it was mentioned that it was generic. Moreover, the booklet which was shown by the Ld. Lawyer of the O.P bears no signature of the complainant that the complainant was aware about the booklet. So, on considering the facts and circumstances the argument raised by the Ld. Lawyer of the O.P that the complainant is not entitled to get the cost of surgery of Lower Lumber Paraspinal Schwannoma    is not tenable. On perusal of the record it is found that the sum assured in the policy is Rs.2,00,000/- only. Already the complainant had expended near about Rs.2, 95,000/- , but he is not entitled to get Rs.2,95,000/- as the sum assured in the policy was Rs.2,00,000/-. The claimant is entitled to get Rs.2,00,000/- for the expenditure incurred by him for the cost of surgery of Lower Limber Paraspinal Schwannoma . Besides that he is entitled to get Rs.10,000/- as litigation cost and Rs.19,000/- for mental pain and agony and harassment. Thus the case is disposed of.

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC - 56/2016 be and the same is allowed on contest but without any cost.

The complainant gets Rs.2,29,000/- in total for the cost of surgery, mental pain and agony and harassment and litigation cost. O.Ps are directed to pay the amount to the complainant by an account payee cheque within one month from the date of this order failing which it will carry interest at the rate of 5% per annum from the date of default of payment till recovery. If the amount is not paid within the time as mentioned, the complainant will have the liberty to execute the order as per law.

Let a copy of this order be supplied to the parties free of cost.