Ld. Advocate(s)
For Complainant: Arun Kumar Saha
For OP/OPs : Raj Kumar Mondal
Date of filing of the case :06.12.2019
Date of Disposal of the case :11.07.2024
Final Order / Judgment dtd.11.07.2024
The pith and substance of the case of the complainant is that the complainant Minor Anway Rakshit represented by his natural guardian and father Ritayan Rakshit had purchased Health Insurance Policy on 20.06.2015 including his wife Nupur and minor son Anway Rakshit from the OPs United India Insurance Company Limited having policy no.0314052815P102992868.They renewed the policy regularly upto 20.06.2019. The medical officer duly checked and verified the health of the insured person at that time. During purchasing the insurance minor complainant was aged about 9 months 15 days and he was quite fit and normal. When the minor attained the age of three years it was noticed that his H/O neck swallowing in the midline which was gradually increasing in size without any pain , H/O infection rapture and no difficulty in swallowing , so the father of the complainant consulted with the ENT physician and was admitted to St. Johns Medical College and Hospital in Bangalore . The doctor advised to operate the same after proper investigation. The minor was admitted on 24.06.2019. Cost operation and medical charges was Rs.42010/-. Cost of medicine was 7487/-. The complainant demanded the said money of Rs.49497/- from the OP No.1 but the OP No.1 on 16.11.2019 repudiated the claim of the complainant on the ground that the minor had pre-existing disease or the said cyst is a congenital since birth. The OPs have no locus-standi to reject the claim of the complainant . The OPs is a renown insurance company and assured the complainant that they would reimburse treatment cost upto Rs.1,00,000/- but they adopted unfair trade practices . So, the complainant is entitled to get compensation. Therefore, the present case is filed. The cause of action arose on 20.06.2015 being the date for payment of first premium and has been continuing till the date of filing of this case. The complainant prayed for an award for Rs.42010/- being the cost of treatment , Rs.1,00,000/- towards compensation for mental pain and agony and harassment and litigation cost.
The OP No.2 contested the case by filing W/V wherein they denied each and every allegation of the complainant on the ground that the case is bad for defect of parties and barred by limitation. The positive defence case of the OP No.2 in brief is that the complainant was insured for purchasing health insurance policy and filled up proposal form . Accordingly, the OP No.2 issued one individual health insurance policy on 20.06.2015 which was renewed on 20.06.2019 subject to the terms and conditions , limitations and exception of the policy. Individual health insurance policy is bilateral documents and both the parties filed the terms and conditions , limitations and exception to the policy to give and to receive the benefit of the policy . The complainant filed their claim for insurance policy benefit. The OP examined and scrutinized the claim through claim settlement authority “heritage health insurance TPA Private Limited”. It was found that the insured violated clause 4.1 of the said policy and the proposal form. They suggested to repudiate the claim of the complainant and as such they repudiated the claim of the complainant and informed it. The heritage health insurance TPA Private Limited is a necessary party in this case. The OPs claimed that the case is liable to be dismissed with cost.
As per order no.13 dated 30.05.2022 W/V filed by OP No.2 has been ordered to be accepted as the W/V of OP NO.1&3( but the prayer of the OP No.2.) As per order no.26 dated 27.04.2023 the case is decided to be heard ex-parte against OP No.1.
Having considered the pleadings of the parties the Commission is of the view that the following points should be ascertained for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the present case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OPs challenged the case as not maintainable on the ground that the case is bad for defect of parties. The OPs pleaded that the claim settlement authority being heritage health insurance TPA Private Limited is a necessary party and as such it is bad for defect of parties for not making it as a party.
Ld. Advocate for the complainant vehemently raised objection against it on the ground that the complainant purchased the insurance from the opposite parties and there is no agreement or contract between the complainant and the said heritage health insurance TPA. So, the present case cannot be bad for defect of parties.
The argument has reasonable force. After perusing all the documents it appears that the insurance bearing policy no. 0314052815P102992868 in the name of Minor Anway Rakshit was purchased from United India Insurance Company Limited for the period 20.06.2015 to 19.06.2016 and it was renewed from time to time. The OPs could not file any document to show that there is any agreement or any correspondences or transaction between the complainant and the heritage health insurance TPA Private Limited. So, it cannot be held that the said third party is a proper and necessary party for adjudication of the present case.
Thus having considered the facts and circumstances of the case the Commission considers that the case is not bad for defect of parties.
Although, the OPs pleaded that the case is barred by limitation yet having perused the pleadings of the parties and the materials available in the case record the Commission is of the view that the present case is filed well within the time limit as per the C.P Act.
Accordingly, point no.1 is answered in positive and decided in favour of the complainant.
Point No.2&3.
The present points relate to ascertain as to whether the complainant is entitled to get the relief as prayed for. It is the admitted fact that the petitioner /complainant was insured for purchasing one individual health insurance policy. The OPs issued one individual health insurance policy on 20.06.2015 as per the number stated in the complaint which was renewed on 20.06.2019.
It is the specific case of the complainant that the OP repudiated the claim of the complainant on the ground that the insured had a pre-existing disease.
The complainant in order to substantiate the case proved the following documents.
No.1 Insurance policy bearing No. 0314052815P102992868 for the period 20.06.2015 to 19.06.2016 and subsequent policy from 20.06.2019 to 19.06.2020.
No.2 Repudiation letter issued by OPs United India Insurance Company dated 06.11.2019.
No.3 Medical examination report/histopathology report of complainant Minor Anway Rakshit.
No.4 Case summary and discharge record of Anway Rakshit dated 26.06.2019.
The OPs also relied upon the said insurance policy.
The main defence for the OP is that the complainant has suppressed the previous disease of the insured and as such the insured violated the terms and conditions of clause 4(1) of the said policy as well as the proposal form. As per clause 4(1) of the said insurance policy congenital diseases (internal and external) shall be excluded.
Ld. Advocate for the complainant argued that the medical officer checked the health of all insured and thereafter, the insurance company OP issued the insurance policy.
Ld. Advocate for the complainant further argued that the OP could not discard the specific evidence of the complainant that the said minor child had pre-existing disease. Mere pain /headache cannot be considered as pre-existing disease. Headache may appear without any disease and it goes away after certain time. He also argued that the OP could not lead any evidence that his son was suffering from disease since birth.
The argument has reasonable force in as much as if a particular point of defence is taken by the OP, the onus shifted upon them to establish the defence case.
Let us have a close scrutiny of the treatment ship of the insured minor child. The said insured was medically treated on St. Johns Medical College Hospital , Bangalore. The OP obtained a document from the St. Johns Medical College in reply to a letter wherein it is stated inter-alia that this condition is congenital means present since birth.
Ld. Advocate for the complainant against the said finding and the document filed by the OP referred to a decision reported in 2023 (4) CPR 60 NC wherein it was held that repudiation of claim is justified. There is no dispute about the existence of the policy , medical condition of the child treatment given to the child as well as the amount of claim. The only specific conditions of the appellant is that the medical condition of the child was pre-existing at the time of birth and respondent no.1 was away of the same. However, he did not bring it to the notice of the appellant at the time of making proposal for insurance. It is a fundamental principle of insurance of contract that the party claiming exemption clause needs to establish the same . It is in common amongst the children of tender age to have convulsion during high fever conditions and recover after high temperature . Therefore, mere isolated event of such instance cannot be constituted knowledge of an entirely independent medical condition that may be revealed at a subsequent stage. The appeal is allowed.
The said case law squarely applies here. The said case law clearly implies that disease of the child of tender age is of no consideration to reject the claim of the insured. The complainant has fulfilled all the terms and conditions of the insurance policy. The OP could not refer to any counter ruling against the specific dictum of the Hon’ble NCDRC as above and as such the rejection of the claim by the OP tantamounts to deficiency in service.
In the backdrop of the aforesaid discussion and observation made hereinabove the Commission is the of the view that the complainant proved the case against the OP upto the hilt.
Accordingly, point no.2&3 are answered in affirmative and decided in favour of the complainant.
In the result complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/381/2019 be and the same is allowed on contest against OP No.1-3 and ex-parte against OP No.4 with cost of Rs.5,000/- (Rupees five thousand). The complainant do get an award for a sum of Rs.42,010/- ( Rupees forty two thousand ten ) towards cost of medical treatment, Rs.10,000/- (Rupees ten thousand) for deficiency in service and mental pain and agony and Rs. 5,000/- (Rupees five thousand) towards litigation cost. The OP No.1-3 are directed to pay Rs.57,010/- (Rupees fifty seven thousand ten) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a from the date of passing the final award till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
