FINAL ORDER/JUDGEMENT

Presented by:-

Shri DebasishBandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating Siddhartha Kumar Sinha the father of the Complainant was admitted in the Hospital of Opposite Party No. 4as emergency patient with Right Sided Intertrochanteric Fracture  of Femur under Dr. Nikhilesh Das under Patient Regn. No. IP/20/006511

That said Siddhartha Kumar Sinha  i.e. the father of the Complainant was brought all the way from his permanent residence by Ambulance and X-Ray of Pelvis (AP Vie) was done and the Xerox copy Invoice-cum-Receipt being No. IO/20/139927 dated 05/03/2020 prepared by the office of OppositePartyNo. 4is annexed herewith.

            The Complainant also stated that Siddhartha Kumar Sinha i.e. the father of the Complainant was also suffering from Diabetes, Carcinoma of Prostate, Nephrological problems, Ischemic Heart and Hypertension.  Initially the patient was not fit for operation due to rise in the level of Creatinine, Potassium & Sodium and Diabetes. After five days of proper and conservative management,the patient was fit for operation and accordingly the said operation of Femur was done by Dr. Nikhilesh Das on 10/03/2020 and the said Doctor prescribed a Right Side Rotation Shoe for the patient and said prescription dated 10/03/2020 is annexed.

            The complainant also stated that the patient was covered under the New India Assurance Company Limited, Mediclaim policy being no. 51020034199700000025 valid from 12/08/2019 to 11/8/2020 under Card No. HHS2.0401591861 and in the said policy of mediclaim sum insured was fixed for Rs. 2,00,000/- and the copy of the New India Assurance Company Limited policy being No. 51020034199700000025is annexed.

            The complainant also stated that the instant operation was not possible without proper and conservative management of the said Siddhartha Kumar Sinha i.e. the father of the Complainant, under the Opposite Party No. 4 on the very date of admission or very next date ofadmission.

            The complainant also stated that lastly the father of the Complainant died on 18/03/2020 due to Sepsis with multi organ failure in a post-operative case and the death certificate dated 18/03/2020 was issued by the Opposite Party No. 4.

            The complainant also stated that the Opposite party No. 3paid Rs. 72,800/-  only asCashless Hospitalization out of the Total Bill amount of Rs. 2,68,707/- only and the Complainant paid the rest amount of Rs. 1,95,907/-only and the Cashless Authorization Letter dated 18/03/2020 under Claim No. HH242005769issued by the Opposite Party No. 3.

            The Complainant also stated that on 27/05/2020 the Complainant filled a Part-A of the Claim Form issued by the Opposite Party No. 1 along with a letter of Rs. 2,02,587/- only as per the Policy Norms 10% Co-payment and Rs. 2,000/- only as Hospital Cash.

            The Complainant also stated that he wrote a letter to the Opposite Party No. 1 on 07/07/2020and received a mail dated 13/07/2020from the Opposite Party No. 3 in relation to Claim No.NH242005769 and the said letter dated 07/07/2020.

            The Complainant also stated that he received an amount of Rs. 83,700/- only inclusive of Cashless Hospitalization out of total claim of Rs. 2,02,587/-only.

            The Complainant also stated that the mediclaim policy was for Rs. 2,00,0000/- and the room rent was allowed for Rs. 1,000/- only per day for Semi-Private in lieu of Rs. 2,000/- only and the Bed Charge for ICU was allowed for Rs. 2,000/- only that would have been Rs. 4,000/- only as per Policy norms and the Opposite Party Nos. 1-3 were more concerned with the FRACTURE IT RIGHT FEMUR and neglected the other medical parts of the insured.

            The complainant also stated that it is evident from themail dated 13/07/2020 from the Opposite Party No. 3 in relation to Claim No. HH242005769, the claim is barred under Clause 4.1 as per terms and conditions of the Policy and Clause 4.1 runs as follows-

            “Treatment of any Pre-Existing Condition /Disease, until forty eight months of continuous   Coverage of such Insured Person has elapsed from the Date of Inception of his/her first Policy with Us as mentioned in the Schedule”.

            The complainant also stated that according to the Insurance Regulatory and Development Authority, Pre-Existingdisease means any condition, ailment or injury or related conditions for which there were signs or symptoms, and / or for which medical advice/treatment was received within 48 months  prior to the first policy issued by the Insurer and renewed continuously thereafter.

            The complainant also stated that ‘the insured was previously admitted in the CMRI Hospitals on 29/10/2010 and discharged on 02/11/2010 and diagnosed with Type 2 Diabetes Mellitus with Nephropathy and the claim of the insured was paid by the Opposite Party No. 3 as Cashless Hospitalization and the CMRI Hospitals Discharge Certificate is annexed.

            The complainant also stated that the insured was again admitted in the Woodlands Hospitals on 23/01/2008 and discharged on 30/01/2008 and diagnosed with Gastro-Intestinal Bleeding, Cervical & Lumber Spondolysosis, Diabetes Mellitus-II, Skin Allergy and Bilateral Fronto-Parietal Subdural Hygromaand the claim of the insured was paid by the TPA Medi Assistant India Pvt. Ltd. Under the Opposite Party No. 1 as Cashless Hospitalization.  The Woodlands Hospitals Discharge Certificate is annexed.

            The complainant also stated that the insured was once again admitted in the Woodlands Hospitals on 15/11/2010 and discharged on 27/11/2010 and diagnosed with Acute Erosive Gastritis, Anemia due to Blood Loss from Gut, Urinary Tract Infection, Urinary Obstructive Disorder and Type-II Diabetes Mellitus and the claim of the insured was paid by the Opposite Party No. 3 as Cashless Hospitalization.  The Woodlands Hospitals Discharge Certificate is annexed

            The complainant also stated that the insured was once again admitted in the Fortis Hospitals on 03/12/2010 and discharged on 07/12/2010 and diagnosed with Bladder outlet Obstruction, Microspopic Haematuria, Diabetes Mellitus and Hypertension. The Fortis Hospitals Discharge Certificate is annexed.

            The complainant also stated that insured was Mediclaim Policy holder under Opposite Party No. 1 since 2000 and he was paying the insurance premium on regular basis without any delay.  Policy paper from 2014 to 2020 is annexed.

            The complainant also stated that the insured enhanced the sum insured from Rs. 1,00,000/- to Rs. 2,00,000/- in the year 2018 ending on 2019 and the said policy was again renewed on 2019 ending on 2020.

            The complainant also stated that all the pre-existing history was available with Opposite Party No. 1 and nothing was misrepresented or hidden and the Opposite Party No. 1 & 3willfully and deliberately neglecting the claim of the Claimant.

            The complainant also stated that he lodged a complaint on 14/07/2020 with the Opposite Party No. 1 and that was forwarded to the Opposite Party No. 3 with the approval of the Opposite Party No. 1 for processing of the claim.

            The Complainant also stated that these sorts of practice on the Opposite Party No. 1 & 3 is nothing but under law it is unfair trade practice and the public in general are the sufferers of such unfair trade practice, Partial repudiation of the claim by the Opposite Party No. 3 is unjust, improper, illegal and contrary to the law and the complainant also stated that therefore the Complainant is entitled to get compensation for the negligent performance of the OppositeParties and it is needless to state that the entire activity of the OppositePartiesand process is unfair trade practice and deficiency of service.

            The complainant also stated that in view of the above facts and circumstances, the Complainant has a cogent cause of action and right to file the present complaint and the cause of action has arisen when the Opposite Party No. 3 paid Rs. 72,800/- only as Cashless Hospitalization out of Total Bill amount of Rs. 2,68,707/-only and received a mail dated 13/07/2020 from the Opposite Party No. 3  in relation to Claim No. HH242005769 and the cause of action is still subsisting and continuing in nature.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 to 3 to pay the unpaid claimed amount of Rs. 1,74,707.00/- and to pay a sum of Rs. 1,50,000/- for mental agony, pain, anxiety and unnecessary harassment and to pay a sum of Rs. 1,74,707.00/- @ 18% interest with effect from 13.7.2020 till payment of such amount and to pay a sum of Rs. 45,000.00/- as litigation cost and to pass such other order/ orders as deem fit and proper.

Defense Case:-The opposite party Nos.1 and 2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the said claim was made against the said renewal medical policy wherein the sum insured was enhanced to Rs. 2,00,000/- from Rs. 1,00,000/- during the renewal of previous period i.e. on and from 12.8.2018 as per declaration made by the insured subject to terms and condition of the aforesaid mediclaim policy. In this context it is necessary to state that in case of enhancement of sum insured as per said policy condition it is clearly mentioned in the policy condition vide no. 5(ii) that in respect of any enhancement of sum insured, the exclusion clause vide no. 4.1, 4.2 & 4.3 would apply to the additional sub-insured from such date of enhancement. Initially the said sum insured was for Rs. 1,00,000/- and the aforesaid sum insured was enhanced on and from 12.8.2018 to Rs. 2,00,000/- wherein the said enhanced amount of Rs. 1,00,000/- is subject to terms and condition of exclusion clause vide no. 4.1, 4.2 & 4.3. In the instant claim in question was made within 2^nd year of the aforesaid enhanced medical claim policy for which the said admissible claim amount was accordingly paid/ or calculated considering the said previous sum insured as Rs. 1,00,000/- applying the aforesaid exclusion clause vide no. 4.1, 4.2 & 4.3  with liability to bear a co-payment of 10% of the final admissible compensation amount and the same was accordingly informed to the complainant by opposite party no. 3 vide its mail dt. 13.7.2020. Moreover the said claim was lodged under policy no. 51020034199700000025 commencing on and from 12.8.2019 to 11.8.2019. As per treatment documents patient was treated for sepsis with multi-organ failure and past illness known HTN & DM. Hence any pre-existing conditions as defined in the policy until 24 months of continuance coverage of such insured person have elapsed since inception of his first policy with the company as per policy terms and conditions clause no. 4.1. Accordingly HTPA paid on 4 years back total sum insured of Rs. 1,00,000/- against his claim as the enhanced sum insured of Rs. 1,00,000/- was not applicable for his disease supported by policy conditions. Finally the opposite party no. 3 paid Rs. 83,700/- being admissible amount against the aforesaid claim to the complainant as per calculation sheet attached herewith following policy conditions. Expenses admissible under the heads and payment details are described in the written version.  As such the said granting of compensation made by HTPA was just and proper. As such the said complainant is not entitled to get any relief as prayed for and the said case is liable to be dismissed with cost.

            The opposite party No. 4contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the case action has arose against opposite party nos. 1 to 3 for partial repudiation of claim by Insurance Company and TPA and complaint discloses no allegation or specific claim whatsoever against the hospital nor the hospital has any role in the matter of insurance policy taken by complaint and there exist no allegation, grievance and/ or cause of action against the answering opposite party. So, the complaint is liable to be dismissed against the opposite party no. 4.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the father of the complainant was under insurance coverage of opposite party nos. 1, 2 and 4 for a long time.
2. It is also admitted fact that the complainant’s father or complainant had never defaulted in the matter of payment of premium of insurance policy.
3. There is no dispute that lastly the father of the complainant was under mediclaim policy being no. 51020034199700000025 valid from 12/08/2019 to 11/8/2020 under Card No. HHS2.0401591861.
4. There is no dispute that in the said policy of mediclaim sum insured was fixed for Rs. 2,00,000/- and the copy of the New India Assurance Company Limited policy being No. 51020034199700000025 is annexed.
5. It is admitted fact that said Sidhartha Kumar Sinha, father of the complainant was admitted to hospital for several times and was also discharged.
6. It is also admitted fact that the father of the complainant died on 18.3.2020 due to sepsis with multi organ failure in a post-operative case and death certificate was issued.
7. There is no dispute over the issue that at the time of death the father of the complainant was under insurance coverage.
8. It is admitted fact that the opposite party, insurance company has not repudiated the entire claim of the complainant.
9. It is also admitted fact that opposite party no. 3 paid Rs. 72,800/- out of the total bill amount of Rs. 2,68,707/-.
10. The complainant also had written a letter to the opposite party no. 1 on 7.7.2020 and opposite party no. 3 had given reply against the said letter on 13.7.2020 by E-mail in relation to claim no. NH242005769.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are deferring on the point and/ or apple of discord between the parties of this case is that the complainant alleged that due to negligency and deficiency of service the complainant had to suffer loss and damage of Rs. 1,74,707/- but on the other hand the opposite parties, insurance company(op nos. 1 to 3)has taken the plea that as per clause no. 4.1, 4.2 and 4.3 of the mediclaim policy the complainant is only entitled to get the money which he has received and there is no deficiency of service or negligence on the part of the opposite party, insurance company.

Another important point of contention and argument raised by the ld. Advocate of the opposite party nos. 1 to 3 is that the complainant concealed the factum of pre existing disease (HTN) for which he had obtained medical treatment and the complainant was suffering from HTN for a long time and the policy under dispute was the subsequent policy and the period of 48 months was not over at the time of medical treatment by the complainant and for that reason the opposite party nos. 1 to 3 has rightly repudiated the claim of the complainant. Over this issue Hon’ble State Commission, Delhi in appeal no. A-482/2005 disposed of on 1.8.2008 has been pleased to observe the following points:-

1. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
2. If insured had been even otherwise living normal and healthy life3 and attending to his duties and daily chores like any other person and is not declared as a disease person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
3. Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
4. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.

Thus, it is crystal clear that the attempt on the part of insurer (op nos. 1 to 3) to repudiate the claim for such non discloser is neither permissible nor is exclusion clause invocable. So the Clause No. 4.1 which is referred by opposite party side is also not acceptable in this case.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalized or undergone operation is not a pre-existing disease. Is a person conceals the factum of his hospitalization of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that recently the Hon’ble Apex Court has deprecated the practice of Insurance Companies for rejecting the claims in respect of mediclaim policies on the ground of pre-existing disease.

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no. 2858 of 2017 decided on 18^th April 2018 has also been pleased to observe almost similar views/ legal principle which have been stated above.

In this regard it is very important to note that the opposite party nos. 1 to 3 have not taken any steps for proving their plea that HTN of complainant’s father leads to serious illness. In this regard it is also vital to note that the opposite party nos. 1 to 3also have not prayed before the District Forum/ Commission, Hooghly for appointment of expert in the matter of passing opinion that suffering HTN by complainant’s father leads to serious illness of the father of the complainant.

   All the above noted legal views of Hon’ble State Commission, Delhi and Hon’ble National Consumer Disputes Redressal Commission, New Delhi and the above noted discussion goes to show that the argument and point of contention of opposite party nos. 1 to 3 which has been stated above are not at all acceptable in the eye of law.

   A cumulative consideration of the above noted discussion goes to show that there is deficiency in the service on the part of the opposite party nos. 1 to 3 and the failure of the Insurance Company (op nos. 1 to 3) to comply with the contractual obligation in the matter of releasing the claim amount of the complainant of this case also amounts to deficiency in service and so the complainant is entitled to get the amount of Rs. 89,007/- and also entitled to get an award of Rs. 25,000/- for mental agony and severe set back in day to day work for the activities of the opposite parties and  the complainant is also entitled to get Rs. 5000/- for litigation cost from the opposite parties.

In the result it is accordingly

ordered

that the complaint case being no. 48 of 2021 be and the same is allowed on contest but in part against opposite party nos. 1 to 3.

The complainant is found entitled to get the amount of Rs. 89,007/- and also entitled to get an award of Rs. 25,000/- for mental agony and severe set back in day to day work for the activities of the opposite parties and  the complainant is also entitled to get Rs. 5000/- for litigation cost from the opposite parties

   The opposite party nos. 1 to 3are directed to pay the above noted amount to the complainant within 2 months from the date of this final order. Otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 to 3 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.