West Bengal

Siliguri

CC/2012/107

SRI SHYAM SUNDAR BANSAL, - Complainant(s)

Versus

THE GENERAL MANAGER, - Opp.Party(s)

22 Sep 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 107/S/2012.                DATED : 22.09.2015.                 

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBER                : SMT. PRATITI  BHATTACHARJEE.

                                                             

COMPLAINANT             1.      : SRI SHYAM SUNDAR BANSAL,

                                                              S/O Sri Phool Chand Agarwal,

                                                              Addressed at Care of Bhagwati Stores,

                                                              Sant Deep Building, Sevoke Road,

                                                              P.O. & P.S.- Siliguri, Dist.- Darjeeling (WB).

                                                                

                                                        

         O.Ps.           1.       : THE GENERAL MANAGER,

                                                              Star Health & Allied Insurance Company Limited,

  1, New Tank Street, Valluvar Kottam High Road,   

  Nungambakkam, Chennai – 600 034 [Tamilnadu].

 

                                                2.         : THE BRANCH MANAGER,

                                                                                  Star Health & Allied Insurance Company Limited,

  NTS More, Deshbandhu Para,   

                                                              P.O. Siliguri – 734 004, Dist.- Darjeeling (WB).

        

                                               

                                                                                                                                                                                                           

FOR THE COMPLAINANT         : Sri S. K. Mitruka, Advocate.

 

J U D G E M E N T

Mr. Biswanth De, Hon’ble President      

 

The complainant’s case is that the life of the complainant and his wife Smt. Babita Bansal, daughter Komal Bansal and son Rounak Bansal were insured by one Reliance General Insurance Company Ltd. vide Policy No.282510179423 for a sum insured of Rs.5,00,000/- valid for a period of two years from 02.11.2007 to 01.11.2009 and thereafter the policy was renewed for a period of another one year from 18.11.2009 to 17.11.2010.

 Thereafter, the complainant and his wife was insured by Family Health Optima Insurance Policy from the OP/Insurance Company for a

 

Contd.......P/2

-:2:-

 

 

sum of Rs.5,00,000/- valid for a period from 18.11.2010 to 17.11.2011.  The said policy was renewed by OP/insurance company vide same policy for the said sum of Rs.5,00,000/- for the period from 18.11.2011 to 17.11.2012.  The continuance of the first policy was also mentioned in the policy issued by the OPs for the period 18.11.2010 to 17.11.2011 and subsequently to 17.11.2012.  During continuance of the insurance policy being No... 005256 valid for the year 18.11.2011 to 17.11.2012, Babita Bansal suffered from illness and was medically treated at Medanta Global Health Pvt. Ltd.  Smt. Babita Bansal was admitted in the said hospital on 09.03.2012 and was released on 13.03.2012.  The matter of treatment was informed to the OP/insurance company.  After completion of treatment the patient was discharged.  The complainant lodged claim to the tune of Rs.1,51,653/- along with all medical papers and bills to the OPs in support of his claim for reimbursement. 

On 22.05.2012 the complainant got one letter stating the policy number and period that the insurance company informed the complainant that the above pre-existing disease was not declared by him and policy was issued accordingly at the time of cover.  Now it has been found out from the medical reports that existing pre-existing disease is incorporated under the policy.  The pre-existing disease executed from the scope of the cover.  The complainant was also surprised that pre-existing disease has been endorsed in the policy of 2011- 2012 and 2010-2011.  Such endorsement is not valid and binding upon the complainant.  It is also the case of the complainant that Health Insurance Policy of the complainant has been continued since 02.11.2007 and onwards.  The claim was made only in the month of March, 2012 i.e., after 4½ years from the date of commencement of the Health Insurance Policy of Smt. Babita Bansal.  After continuation of such long time of the policy under health scheme the repudiation of her claim on the ground of pre-existing disease is unjustified and illegal. 

The complainant informed all these facts to the OP No.1 on

 

Contd.......P/3

-:3:-

 

 

08.06.2012 and requested for making payment, but OP Nos.1 & 2 did not hear the complainant.  Accordingly, this claim has been lodged before this Forum as per assessment in paragraph 11 regarding expenses of treatment and compensation and Rs.25,000/- for mental pain and agony.                   

The OP Nos.1 & 2 has contested this case by filing written version denying inter-alia all the material allegations as raised by the complainant.  The positive version is that after receiving the treatment diagnosis including discharge summary the Insurance Company found some diagnosis of the patient as per discharge summary and concluded that there was no inclusion of pre-existing disease in the terms and conditions of the policy as such there were suppression of material fact in the proposal form dated 15.11.2010 submitted by the Shyam Sundar Bansal to OP insurance Company.  As per discharge summary, i) per operating findings bubble loops adherent to posterior valve of uterus.  On adhesiolysis and abscess 1x1 cm found between bubble loops and posterior uterine valve. The uterus irregular in size.  Right ovarian cyst about 3 x 3 cms size.  Left tube and adnexa normal.  (ii) She was first seen in OP on 02.03.2012 with history of fever and nausea and fowl smelling while discharge – PED.  (iii) As per OP records her LMP was on 01.01.2012 and she underwent MTP on 13.02.2012.  (iv) She is a known case of hypo thyrodism on electroxin. (v) She was reviewed again on 07.03.2012. 

It is also contended that adhesions of the bubble with intervening abscess is clearly due to the MTP and hence is a complication of the MTP which is pregnancy related and hence out of scope of the said policy.  It is also contended that white discharge also existed prior to inception of the policy on 18.11.2010.  It is also stated that the aforesaid material facts were not disclosed at the time of subscribing to the said policy and there was deliberate suppression of material facts on the part of the complainant.  Accordingly, the claim was rejected under exclusion No.1

 

Contd.......P/4

-:4:-

 

 

and exclusion No.15 of the policy.  Due to deliberate withhold of material facts in the proposal form causes the contract void.  There was wilful suppression of material facts on the part of the complainant.  Accordingly the complainant is not entitled to get benefit of the policy.  But the OP admits regarding existency of the aforesaid health insurance policy since 02.11.2007 to 17.11.2012. (Vide para 14).  Accordingly, it is prayed that the complaint shall be dismissed with compensatory cost as per permissible in law. 

To prove the case the complainant has filed the following documents :-

1.       Copies of insurance policies since 2007 onwards.

2.       Copy of Discharge Summary issued by Medanta.

3.       Copy of Claim form duly filled up and submitted to the OP insurance company.

4.       Copies of the bills and cash memos submitted to the OP insurance company.   

5.       Copy of letter dated 22.05.2012 received from the OP insurance company together with the copy unauthorized endorsement schedule. 

6.       Copy of letter dated 07.06.2012  addressed by the complainant to the OP along with certificate from Dr. Amita Jain. 

7.       Copy of the legal notice dated 21.08.2012 sent to the OPs by the complainant’s lawyer together with postal receipt. 

8.       Copies of the A/D cards received from the postal department. 

 

OP has filed the following documents :-

1. Family Health Optima Insurance Policy – schedule in the name of
2. Shyam Sundar Bansal & his family for the period from 18.11.2010 to 17.11.2011 along with family health optima insurance plan containing the conditions, clauses warranties, exclusions etc. 

 

Contd.......P/5

-:5:-

 

 

2.       Letter dated 22.05.2012 issued by the OP Insurance Company to the complainant. 

3.       Xerox copy of Proposal form dated 15.11.2010 submitted by the complainant Shyam Sundar Bansal to the OP Insurance Co. Ltd.

4.       Repudiation Letter dated 20.06.2012 issued by the OP Insurance Company to the complainant.

          Complainant has filed some principles of law as laid down in II (2008) CPJ 382.

 

          OP has filed some principles of law as laid down in :-

a)       AIR-1962 SUPREME COURT 814;

b)       VOL IV (2009) 8 SUPREME COURT;

c)       VOL IV (2006) CPJ 1 SUPREME COURT;

d)       VOL I (2009) CPJ 6 SUPREME COURT;

e)       VOL III (2013) CPJ 654 NATIONAL COMMISSION;

f)        VOL III (2013) CPJ 684 NATIONAL COMMISSION;

g)       VOL I (2012) CPJ 488 NATIONAL COMMISSION;

h)      VOL II (2007) CPJ 51 NATIONAL COMMISSION;

i)        VOL II (2002) CPJ 92 NATIONAL COMMISSION;

j)        VOL IV (2003) CPJ 98 NATIONAL COMMISSION;

k)       VOL I (2002) CPJ 26 NATIONAL COMMISSION;

l)        VOL IV (2003) CPJ 398 WEST BENGAL STATE COMMISSION;

m)      VOL III (2004) CPJ 625 CHHATTISGARH STATE COMMISSION;

n)      VOL I (1998) CPJ 234 TAMIL NADU STATE COMMISSION;

o)       VOL III (2002) CPJ 300 DELHI STATE COMMISSION.

 

Points for consideration

 

1.       In the case has the complainant proved that the OP is in deficiency in service and OP neglected to pay the amount for treatment which the complainant is legally entitled to get?

2.       Is the complainant entitled to get relief as prayed ?

 

Contd.......P/6

-:6:-

 

 

Decision with reason

 

In this case has been instituted by the complainant when the OP repudiated the claim of the complainant.  The background of this is that complainant made insurance of health with Reliance General Insurance Company in the year 2007 for Shyam Sundar Bansal, Babita Bansal, Komal Bansal and Rounak Bansal. 

The first policy started from 02.11.2007 to 01.11.2009.  Then the policy was changed Reliance General Insurance to Star Health and Allied Insurance Company Ltd. from 18.11.2010 and onwards thirdly, from 18.11.2010 to 17.11.2011, then 18.11.2011 to 17.11.2012.  Each life was insured by sum of Rs.5,00,000/-.  From the first policy and later on last policy mainly 18.11.2010 to 17.11.2011 and 18.11.2011 to 17.11.2011 and 18.11.2011 to 17.11.2012, it is mentioned in the necessary column regarding pre-existing disease – ‘No’.  Later on when the policy of the complainant regarding mediclaim insurance particulars submitted to the company, the insurance will be deemed to be continuous without any brake to the extent of Rs.5,00,000/- for the insured persons Mr. Shyam Sundar Bansal, Mrs. Babita Bansal, Komal Bansal, Master Rounak Bansal.  It is mentioned in the policy that first year exclusion will not be applicable up to Rs.5,00,000/- for the insured person i.e., schedule of the policy.  It is also mentioned in the then new policy of Star Health and Allied Insurance Company Ltd. that all other terms and conditions of the policy remained unaltered.  This commitment was done by the later insurance company on 19.11.2010.  Later on in the year 2012 the wife of the complainant Babita Bansal was treated by Medanta Global Health Pvt. Ltd. She was admitted on 09.03.2012 and discharged on 13.03.2012 with disease stated in discharge summary.  It appears from the discharge summary that diagnosis was for right ovarian cyst and adeno myosis uterus.  Main complaint was white discharge for 1 ½ years and Supraubic pain for last 15 days.  The hospital took the following course “patient was admitted.

 

Contd.......P/7

-:7:-

 

 

Patient and her relatives were counseled about the procedure and its outcome pre-operatively.  After appropriate evaluation she underwent Diagnostic Laparoscopy followed by Adhesiolysis and Abscess drainage with Total Laparoscopic Hysterectomy and Ovarian cyst drainage by Dr. Amita Jain under GA on 10.03.2012.  She tolerated the procedure.  The post operative period was uneventful.  Her Foley’s was removed on 12.03.2012 and she is voiding well.  She is now being discharged in stable condition”.  After completion of the treatment as laid down in the discharge certificate with advice therein, the patient came to his house and after that the complainant lodged claim before the concerned insurance company, but the insurance company repudiated his claim by letter dated 10.05.2012 on the ground the illness was pre-existing disease.  Then legal notice was served, but insurance company did not hear.  Only then the complainant has been forced to approach before this Forum praying for appropriate relief. 

Now let us see to what extent the reason of repudiation is correct or the contention of complainant that there had been no pre-existing disease is correct. 

To unearth this reason it is necessary to go through the evidence of both parties reflected in the record. 

The complainant has adduced oral evidence on oath.  The complainant has stated in para-7 that the complainant had not suppressed or concealed any material fact in any way.  It is stated that while issuing the policy to the complainant the OP insurance company had mentioned the facts of having the earlier policy of the complainant and his family members with the said Reliance General Insurance Company Ltd, and so the questions of violation of implied condition does not arise.  It is also stated that OP insurance company is bound to accept the date of the commencement of the period of first insurance policy from 02.11.2007 onwards.  The letter of repudiation was illegal and not binding upon the complainant.  Accordingly, the complainant is

 

Contd.......P/8

-:8:-

 

 

entitled to receive the amount as per prayer.  It is also contended by the complainant in para-6 that there was no signs or systems or diagnosis in any way in respect of the treatment for which the complainant was hospitalized in the month of March, 2012 i.e., on 02.11.2007 and that the expenses incurred by the complainant for the treatment of his wife was not related to pregnancy in any way nor related to child birth as alleged by the OP in their written version.  So, the evidence of the complainant stands that on 02.11.2007 when the complainant filled in the application form for insurance, there had been no signs and symptoms of any disease for which no declaration was given by the complainant on 02.11.2007 i.e., at the time of filling up the insurance proposal form. 

In the proposal form dated 18.11.2010 as filed by the OPs there is mention of the insurance policy of Reliance Company Ltd. from 18.11.09 to 17.11.10 with policy no................001040.  The insurance policy Star Health and Allied Insurance Company Ltd. dated 30.06.2011 again shows that in view of the previous mediclaim insurance particular (..........1040 of Reliance General Insurance Co. Ltd.) submitted to the company “this insurance will be deemed to be continuous without any brake to the extent of Rs.5,00,000/- each for the insured person Shyam Sundar Bansal, Babita Bansal, Komal Bansal, Rounak Bansal” respectively.

In consequence of the above the 30 days and first year and second year exclusion will not be applicable up to Rs.5,00,000/- each for the insured person Shyam Sundar Bansal, Babita Bansal, Komal Bansal, Rounak Bansal”.  All other policy terms and conditions remain unaltered.

So, from the oral evidence of the complainant and copies of the insurance policy since 2007 onwards, it appears that the Health Insurance Policy exists from 02.11.2007 to 01.11.2009, from 18.11.2009 to 17.11.2010, 18.11.2010 to 17.11.2011, 17.11.2011 to 18.11.2012.  So, the oral statement get support by the documentary evidence that the

 

Contd.......P/9

-:9:-

 

 

insurance policy instituted in the year 2017 and continued till the date of discharge on 13.03.2012.  The expressed fact by Star Health & Allied Insurance Company regarding the admission of previous General Insurance Company is continued.  The discharge certificate also shows that the treatment was done for removal of cyst not for removal of pregnancy.

The discharge summary shows that the patient was suffering from “adherent bowel loops on posterior wall of uterus with intervening abscess and right ovarian cyst with adenomyosis uterus”.  

So, it is palpably clear that the treatment was done only for removal of cyst and not for removal of pregnancy and of pregnancy but for cyst.

It is submitted by the ld advocate of the complainant that for the reason of ovarian cyst with adenomyosis uterus white discharge may come out for some days before i.e., 1½ years and too come within the purview of the insurance policy and white discharge occurred due to ovarian cyst.

He also argued that the policy of the complainant had been started since the year 2007.  So, exclusion clause shall not be applied to them.

The OP submitted in WV para 14 that insurance policy of the complainant and his family members was initially started with Reliance General Insurance for the period 02.11.07 to 01.11.2009, 18.11.09 to 17.11.2010.  Thereafter, the complainant had taken the health insurance policy i.e., new policy from the OP insurance Company for the period from 18.11.2010 to 17.11.2011 and from 18.11.2011 to 17.11.2012.  So, the existency of the insurance policy has been admitted by the OP.  As per OPs statement the policy dated 02.11.2007 has been continued till 17.11.2012.

The repudiation of the OP regarding prayer of the complainant to get expenditure for treatment is based on reason of pre-existing disease and submitting information which was not correct.

 

Contd.......P/10

-:10:-

 

It is stated that complainant deliberately suppressed material facts in the proposal form and wilfully and unlawfully withheld substantial and material information. 

One proposal form dated 15.11.2010 has been filed by the OP.  This proposal form was submitted by the complainant Shayam Sundar Bangal to the OP.  This proposal form was filled in on 165.11.2010 whereas in the respective column it is written ‘yes/no’.  But OPs statement shows that complainant has obtained insurance policy for the first time on 02.11.2007 from Reliance General Insurance Company Ltd., later on the complainant took the policy from the present OP.  The continuance of the first policy and second policy is admitted by the OP.  Then the complainant had a policy of more than 48 months old.  On 15.11.2010 there was no illness of the wife of complainant because the discharge summary shows that for the first time the wife of the complainant came for treatment on 09.03.2012 in the nursing home.  So, around one year or more the wife of the complainant had no complication.  So, on 15.11.2010 the declaration of the complainant is correct because at that time his wife had no disease as shown in the discharge summary.  Replacement of uterus is not included with the pregnancy and for the pregnancy. 

It is admitted fact that OP did not deny the policy of the complainant.

So, the argument of the OP is that complainant gave false information at the time of purchasing the policy cannot be taken to be true, because complainant has taken the recourse of insurance policy purchased by him in the year 2007 and the same was confirmed and continued by the second insurance company.  The OP also in his statement as well as his evidence admitted the existency of the insurance policy of complainant in the year 2007.  But the OP intends to take the date of commencement of the first insurance policy from 18.11.2010.  Whereas OP himself admitted the existence of the former insurance policy, he cannot deny the existency of former policy with Reliance

 

Contd.......P/11

-:11:-

 

General Insurance Company by a letter dated 19.11.2010.  When OP has intimated to this complainant stating that “this insurance will be deemed to be continuous without any brake to the extent of Rs.5,00,000/- each for the insured person Shyam Sundar Bansal, Babita Bansal, Kamal Bansal, Rounak Bansal”.

The argument on behalf of the complainant is that OP insurance company repudiated the claim on the alleged ground of pre-existing disease i.e., ovarian cyst and its complication, and that such disease is not excluded.  The complainant’s wife was compelled to get the termination of her pregnancy only due to said ovarian cyst which was developed in between policy periods.  The cause of termination of pregnancy was related with the said ovarian cyst and so the contentions that treatment taken by the complainant was the result of medical termination of pregnancy is not true and cannot be accepted. 

Therefore, the complainant concluded that the ovarian cyst is the cause of termination of pregnancy resulting different complications and that said treatment was taken after a period of four years six months from the date of first policy.  Accordingly, it is argued that complainant is entitled to get compensation as per prayer.

Ld advocate of the OP argued that at the time of second policy in the year 2010, the complainant suppressed material fact by not providing information in the said proposal form and secondly that the treatment has been taken after two years of second policy by these OPs. 

Although, in his W.V. and evidence, OP admitted the continuation of insurance policy from the year 2007.  He placed his reliance to establish that suppression of material fact will negate the prayer of complainant, he realizes on many decision as quoted hereinbefore.  But fact of those cases is not like this case in our hand. 

Considering the submissions of both sides, applying attention on the documents and evidence on oath, and discharge summary, and other relevant document of insurance company, it is air like clear that treatment was imparted to the patient after four years and six months

 

Contd.......P/12

-:12:-

 

from the date of first health insurance policy and that treatment was done for the purpose of removal of the cyst in the uterus, resulting termination of pregnancy. 

Accordingly, the case of the complainant succeeds.

Now it is necessary to fix quantum of award. 

The complainant has prayed different amount and compensation in different head. 

1.       The complainant prayed a sum of Rs.1,51,653/- for medical treatment of his wife.

2.       The complainant prayed for payment of interest @ 18 % per annum on the aforesaid amount of Rs.1,51,653/-.

3.       The complainant has prayed further sum of Rs.1,48,347/- on account of negligence and deficiency in service on the OPs.

4.       The complainant has further prayed a sum of Rs.25,000/- on account of mental pain and agony. 

5.       The complainant has also prayed interest @18% per on the aforesaid amount till realization and cost of the proceedings. 

          But this Forum is of considered opinion that the complainant is entitled to get Rs.1,51,653/- for the medical treatment of his wife. 

The complainant is also entitled to get Rs.50,000/- for negligence and deficiency in service on the OPs.

The complainant is also entitled to get Rs.25,000/- for mental pain and agony.

The complainant is also entitled to get Rs.20,000/- for cost of the proceedings. 

The complainant is further entitled to get interest @ 9% per annum from the OPs. 

Hence, it is

                   O R D E R E D

that the Consumer Case No.107/S/2012 is allowed on contest in part against the OPs. 

The complainant is entitled to get Rs.1,51,653/- for the medical treatment of his wife from the OPs. 

Contd.......P/13

-:13:-

 

The complainant is also entitled to get Rs.50,000/- for negligence and deficiency in service on the OPs.

The complainant is also entitled to get Rs.25,000/- for mental pain and agony.

The complainant is also entitled to get Rs.20,000/- for cost of the proceedings.

The complainant is further entitled to get interest @ 9% per annum from the OPs from the date of appearance of the OPs till full realization.   

The OPs, who are jointly and severally liable, are directed to pay Rs. 1,51,653/- by issuing an account payee cheque in favour of the complainant for the medical treatment of the complainant’s wife within 45 days of this. 

The OPs, who are jointly and severally liable, are directed to pay Rs. 50,000/- by issuing an account payee cheque in favour of the complainant for negligence and deficiency in service on the OPs within 45 days of this order.

The OPs, who are jointly and severally liable, are further directed to pay Rs. 25,000/- by issuing an account payee cheque in favour of the complainant for mental pain and agony within 45 days of this order.

The OPs, who are jointly and severally liable, are further directed to pay Rs. 20,000/- by issuing an account payee cheque in favour of the complainant for cost of the proceedings within 45 days of this order.

The OPs are further directed to pay interest @ 9% per annum from the date of appearance of the OPs till full realization. 

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                                                                       -President-