Date of filing: 16.06.2017 Date of disposal: 31.05.2018
Complainant: Smt. Sudipta Dey, W/o. Sri Joydeb dey, at present residing at Badamtala, Police Quarter No. A/10, PO, PS. & District: Burdwan, PIN – 713 101, permanent resident of Village & PO: Baedangang, PS: Goghat, District: Hooghly, PIN – 713 122.
- V E R S U S -
Opposite Party: 1. The Divisional Manager of National Insurance Company Ltd., Burdwan, Bhanga Kuthi, PS. & District: Burdwan, PIN – 713 104.
2. The Senior Divisional Manager of National Insurance Company Ltd., Division – III, 8, Indian Exchange Place (Ground Floor), Kolkata – 700 001.
3. The Manager of Genins India TPA Ltd., 15, Ganesh Chandra Avenue, 3rd Floor, Kolkata – 700 013.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Santi Ranjan Hazra.
Appeared for the Opposite Party No. 1&2: Ld. Advocate, Shyamal Kr. Ganguli.
Appeared for the Opposite Party No. 3: None (ex parte).
J U D G E M E N T
This is a case under Section 12 directing the Ops to pay insurance benefit of Rs. 3,00,000=00 towards hospital expenses, Rs. 30,000=00 towards post operation expenses, Rs. 50,000=00 towards mental agony and harassment and Rs. 10,000=00 for the cost of the present suit.
The complainant’s case in short is that she had insurance by the Ops and the premium of the insurance was automatically deducted from the complainant’s husband’s salary who is police personnel under the Government of West Bengal. The complainant’s husband paid Rs. 3,600=00 towards the annual premium of the said policy for the year 2015. The complainant was suffering from fatty liver, hypothyroidism & OSA and her body weight was 137 Kgs which was causing her knee and joint paid. She was under the treatment of Dr. B. Ramana. As her condition was going critical day by day, the doctor advised for Bariatric surgery finding no other alternative. So on 02.12.2015, the complainant was admitted into Belle Vue Clinic for Laparoscopic Mini Gastric Bypass under GA. On the next day, 03.12.2015, the operation was conducted by Dr. B. Ramana, Dr. Sarfaraz Baig, Dr. Sudarsan Chaudhuri and Dr. Lila Baig. The operation was successfully done and on 04.12.2015 the complainant was discharged from the nursing home. The complainant incurred Rs. 3, 00,000=00 towards nursing home bills and about Rs. 30,000=00 towards post-operative treatment and medicine. Her husband complied with all the legal formalities and lodged the claim with the OP on the basis of what an investigator named Debasis attended them, communicated and collected all relevant documents. The husband also submitted the duly filled up reimbursement claim form along with all relevant documents before the OP. But the OP-3 TPA sent a letter addressing the R.O. Welfare, Burdwan, i.e., the office of the complainant’s husband dated 10.02.2016 that the claim of the complainant has been repudiated as per clause no. 4.9 under WBP corporation policy condition, obesity related cost is not payable. After that the husband of the complainant several times communicated with the OP and requested them to reconsider their decision as the doctor of the complainant certified that the surgery was inevitable as there was no effective alternative approach or medical treatment. But the Ops deprived the legitimate claim of the complainant on some flimsy pretext.
The Ops, on the other hand, in their written version stated that the Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as such as it is not a “consumer dispute” and that the complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed. They clearly stated that the claim was repudiated because as per clause No. 4.9 under WBP corporation policy condition, obesity related cost is not payable or tenable.
In the light of the contention of both parties and considering the documents along with evidence, the following points necessarily came up for consideration to reach a just decision.
-: Points for consideration:-
- Is the complainant a consumer as per Section 2 (1) (d) (ii) of the C. P. Act, 1986?
- Has the Forum jurisdiction to entertain the instant complaint?
- Have the Ops any deficiency in service?
- Whether the complainant is entitled to get relief/reliefs as prayed for?
-: Decision with reasons:-
Point No. 1:-
From the discussion on this point in terms of the provision of Section 2 (1) (d) (ii) of the C.P. Act, 1986 the complainant being a customer of the Ops in respect of having insurance policy. Hence, the complainant is a ‘consumer’ of the Ops.
Point No. 2:-
The office and place of business of the OP-1 is within the district Burdwan from where the complainant had the policy although its head office, i.e., OP-2&3 has their office in Kolkata. As the complainant had her policy from the OP-1, so this is within the territorial jurisdiction of the Forum. The value of the case is within the limit of Rs. 20, 00,000=00. So, this Forum has territorial, as well as, pecuniary jurisdiction to entertain and try the instant case.
Point No. 3 & 4:-
Undisputedly, the complainant had a mediclaim insurance policy of the Ops of which the premium had been deposited regularly. On behalf of that policy the complainant claimed the cost of her surgery. But the Ops repudiated the claim showing the clause No. 4.9 of their policy where it is state that as obesity is not an illness; any cost in regard of obesity is not payable. But the complainant produced a certificate of the doctor where it is stated as a life saving surgery in the case of the complainant as she had no other alternatives like taking medicines. Moreover, the Hon’ble State Commission has stated in S. C. Case No. FA/799/2012, dated 23 September 2012 in the case of Oriental Insurance C. Ltd. Vs. Sri Rajesh Jajodia & Ors. that morbid obesity surgery is a surgery done to a patient, who is suffering from difficult obesity and to save life of the patient as a life saving surgery. It was not a cosmetic surgery. So, the complainant with all the evidential documents succeeds to prove the case.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 66/2017 is allowed on contest against the OP-1&2 with cost and dismissed ex parte against the OP-3 and Proforma OP-4 without any cost with a direction to the OP-1&2 to pay either jointly or severally the insurance benefit of Rs. 3,00,000=00 (Rs. Three lacks) only towards hospital expenses to the complainant within 45 (forty five) days from the date of passing of this award, in default, the amount will carry 8% (eight per cent) interest per annum for the default period and the OP-1&2 also directed to pay Rs. 5,000=00 (Rs. Five thousand) only either jointly or severally towards mental pain, agony and harassment and to pay Rs. 2,000=00 (Rs. Two thousand) only within 45 (forty five) days from the date of passing of this award to the complainant either jointly or severally as litigation cost, in default, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Tapan Kumar Tripathy) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
