Samaresh Kumar Mitra, Member.
The case of the complainant in brief is that complainant took a Mediclaim Insurance Policy on 18.2.2015 being policy No.153600/48/14/850000273 which was valid from 18.2.2015 to 17.2.2016 issued from the office of the O.P. No.2, in which the coverage was made for the insured and his wife, Shibani Bagchi and daughter, Nilanjana Bagchi of Rs.75,000/- each in which condition was that existing diseases mentioned in the proposal form.
Be it mentioned here that this complainant also took a mediclaim policy from the said O.P. No.2 consecutively seven years i.e. effect from 18.2.2008 to 17.2.2015. There was no claim submitted by the complainant and his family since inception of the policy except the insured’s accidental benefit in the policy year 2014-2015. Except that there was no claim submitted by the complainant and his family.
The wife of the complainant Shibani Bagchi suddenly fell in serious illness at the first of April, 2015 and she was treated by the local doctors and subsequently by their advice, she was taken to CMC, Vellore on 31.7.2015 where she was treated by the doctor namely Dr.Shibu Jacob on 3.8.2015 and 6.8.2015 and diagnosed that she was attacked CKD and treated by them and thereafter they advised for dialysis immediately, otherwise her life will be at stake. Thereafter she was taken to Dr.Jayanta Dutta at Charnock Hospital, Kolkata on 24.8.2015 and advised to admit in the hospital for haemodialysis. The disease was detected after taking seventh mediclaim policy from the O.P. No.2.
On the advice and due to aggravation of her health she was admitted in the Burdwan Critical Care Unit Pvt. Ltd., under Dr.Anirban Mitra on 28.8.2015 and haemodialysis started and after seining something she was discharged on 31.8.2015 and advised her to continue haemodialysis twice in a week and since then haemodialysis have been continuing as day care procedure and incurred expenses of Rs.1,17,600/- during the said policy period i.e. within the 18.2.2015 to 17.2.2016.
That the complainant being financially weak and like a retired person and being a holder of the continuous mediclaim policy for last eight years. The complainant submitted the claim of Rs.49,340/- to the O.P. No.2 on 28.9.2015 and on 13.1.2016 for Rs.37,350/- and for Rs.30,910/- on 18.4.2016 (Total Rs.1,17,600/-) as incurred expenses during the said policy period. But the O.P. No.2 did not pay any heed to that matter i.e. neither settled the claim nor repudiated the same.
After expiry of said policy period, the policy renewal notice from the office of the O.P. No.2 was received and again the insured took an mediclaim policy on 15.2.2016 for the period from 18.2.2016 to 17.2.2017 for his family members by paying renewal fees of Rs.8,404/-. But as per policy condition for the period from 18.2.2015 to 17.2.2016 did not disburse any amount incurred for treatment of her wife. Finding no other alternative the complainant filed this case before this Forum for relief with a direction to the O.P. to pay the claim amount of Rs.1,17,600/-, to pay Rs.10,000/- as compensation for mental pain and agony and to pay Rs.10,000/- for litigation cost to the complainant.
The O.P. No.1 & 2 contested the case by filing written version denying all the material allegations as leveled against them. These O.Ps. stated that claim of the complainant has repudiated on 27.4.2016. These O.ps. also stated that whenever any claim is submitted by any insured i.e. processed strictly as per the terms and conditions of the policy and if the claim is settle worthy the same is settle. But if the medical expenses incurred is excluded as per the explicit exclusion clause of the policy the insurer cannot settle the same and then the claim is accordingly repudiated. According to exclusion clause No.4.11 the company shall not be liable to make any payment under the policy in respect of any expenses incurred in connection with or in respect of any genetic disorders as clearly incorporated in clause No.4.11.
The medical report as issued by CMC, Vellore it appears that Sibani Bagchi had the diagnosis as severe renal failure CKD State 5 and in the history column it has been mentioned that her brother was also a patient of renal failure having dialysis for 15 years. In the instant case the patient was suffering from bilateral polycystic kidneys which in medical terms is a genetic disorder and as this genetic disorder is not covered under the policy and specifically is excluded under exclusion clause No.4.11. The insurer as per said exclusion clause and also in view of the fact that there was family genetic disorder as her brother was also having dialysis for 15 years, had no scope to settle the claim and accordingly the claim was repudiated and was communicated to the insured.
The complainant filed evidence on affidavit which is nothing but the replica of complaint petition. Argument advanced by the parties heard in full. They also filed the written notes of argument which are taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Ardhendu Bagchi is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.P. carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Ardhendu Bagchi is ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP insurance company and OP No.1&2 are the service provider, OP No.3 is the agent of the OP insurance and the OP No.4 is the TPA through which the claims are settled., so beingconsumer he is entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP No.2 to pay amount of Rs.1,17,600/-, to pay Rs.10,000/- as compensation for mental pain and agony and to pay Rs.10,000/- for litigation cost to the complainant other reliefs as this Forum deems fit and proper, ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The case of the complainant is that he alongwith other members of his family took a mediclaim policy before the OP Company and during the policy period his wife became ill and she was treated by the local doctors and subsequently by their advice, she was taken to CMC, Vellore on 31.7.2015 where she was treated there by Dr.Shibu Jacob on 3.8.2015 and 6.8.2015 and diagnosed that she was attacked CKD and advised for dialysis immediately. Thereafter she was taken to Dr.Jayanta Dutta at Charnock Hospital, Kolkata on 24.8.2015 and advised to admit in the hospital for haemodialysis. Subsequently, she was admitted in the Burdwan Critical Care Unit Pvt. Ltd., under Dr. Anirban Mitra on 28.8.2015 and haemodialysis started and after that she was discharged on 31.8.2015 and advised her to continue haemodialysis twice in a week and since then haemodialysis have been continuing as day care procedure. Dr. Rajendra Pandey ( Nephrologist) opined that the disease is C.K.D. under Dialysis.
The complainant submitted the claim of Rs.49,340/- to the O.P. No.2 on 28.9.2015 and on 13.1.2016 for Rs.37,350/- and for Rs.30,910/- on 18.4.2016 (Total Rs.1,17,600/-) as incurred expenses during the said policy period.But the O.P. No.2 did not pay any heed to that matter i.e. neither settled the claim nor repudiated. Lastly by a letter dated 27.4.2016 the OP No.2 repudiated the claim on the ground that as per terms and condition under exclusion clause 4.11 which states “Genetic disorder” are not admissible. Being dissatisfied the complainant filed the instant complaint before this Forum praying for a direction upon the OP as incorporated in the prayer portion of the complaint petition.
The OP National Insurance Company Ltd. by filing written version, evidence on affidavit and written argument averred that there is a specific exclusion under clause No.4.11 wherein it has been explicitly stated that the Company shall not be liable to make any payment under the policy in respect of any expenses incurred in connection with or in respect of Genetic Disorders. The contesting OP also averred that the medical report of Christian Medical College, Vellore clearly speaks that the patient went there for the treatment of Bilateral Polycystic Kidneys and in the history column it is stated that her brother was also on dialysis for fifteen years. He also relied the observation of National Institute of Diabetes that Polycystic Kidney Disorders is a genetic disorder. And Burdwan Critical Care unit also speaks that the patient was with chronic kidney disease (V stage). So the expenses incurred for dialysis for Polycystic Kidneys ( CKD-V) the Insurance Company strictly vide exclusion clause No.4.11 has no scope to settle the claim and thus there was no deficiency or any alleged unfair trade practice.
After going through the case record and hearing the arguments advanced by the Ld. advocates it appears that the policyholder was suffering from renal failure CKD stage-5 and the doctor of Christian Medical college advised to start dialysis at the earliest. Following the advice the wife of the complainant done Dialysis at different places like Charnock Hospital at Kolkatta and Burdwan Critical Care unit. Now the patient who covered under the mediclaim policy done her treatment within the covered period and filed her claim before the opposite party but the opposite party after getting investigation report by TPA repudiated the said claim on the pretext that the disease in which the policyholder suffering falls within the category of Genetic Disorder which is not tenable according to clause 4.11 of the National Mediclaim policy. During the period of argument the advocate of the complainant produced a letter/notice of Insurance Regulatory and Development Authority of India being Ref: IRDAI/ HLT/REG/CIR/046/03/2018 dated 19.03.2018to all Life, General and Health Insurers thatIn the matter of M/s United India Insurance Company Limited Vs. Jay Parkash Tayal ( RFA 610/2016& CM Nos. 45832/2017) Hon’ble High Court of Delhi at New Delhi held that the exclusionary clause of Genetic Disorders in the Insurance Policy is too broad , ambiguous and discriminatory hence violative of Article 14 of the Constitution of India and directed Insurance Regulatory and Development Authority of India (IRDAI) to re-look the exclusionary clauses in insurance contracts and ensure that insurance companies do not reject claims on the basis of exclusions relating to genetic disorders. Thus in pursuance to the directions of Hon’ble High Court all insurance companies offering contracts of Health Insurance are hereby directed that no claim in respect any existing health insurance policy shall be rejected based on exclusions related Genetic Disorder. All insurance companies are directed not to include Genetic Disorders as one of the exclusions in new health insurance policies issued in respect of all their existing health insurance products and also in the new products launched and /or filed under the provisions of guidelines on product Filing in Health Insurance Business.
Perused the case record, documents, evidence on affidavit and hearing the arguments it appears that the claim of the complainant was repudiated by the OP insurance company on the ground that the patient has been suffering from Genetic Disorders which is in the exclusion clause 4.11 of the National Mediclaim Policy. Relying on the Judgement of Hon’ble Delhi High Court in the matter of M/s United India Insurance Company Limited Vs. Jay Parkash Tayal (RFA 610/2016& CM Nos. 45832/2017) this Forum is in the opinion to allow the claim of the complainant as the claim raised by the complainant is at par, not excessive and exorbitant. By repudiating the claim of this complainant the insurance company destructed the myth of utmost on good faith as such there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.
So we are in a considered opinion to allow the complaint with a direction upon the OP Insurance Company i.e. the OP No.1&2 to pay the claim amounting to Rs.1,17,600/- including interest @ 9% p.a. against the policy being no 153600/48/14/850000273, a sum of Rs.6000/- for litigation cost. The OP No.3 & 4 are exonerated from the proceeding as their liability in respect of deficiency of service is not proved.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.1&2 are liable to pay the ordered amount.
ORDER
Hence, it is ordered that the complaint be and the same is allowed on contest against the opposite party No.1 &2 with a litigation cost of Rs.6,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1&2 are directed to pay the amount incurred during the treatment amounting to Rs.1,17,600/- including interest @ 9% since the date of repudiation till the realization to this complainant within 45 days from the date of order.
At the event of failure to comply with the order the Opposite Party No.1&2 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
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 & necessary action.
Dictated and corrected by me.Member, cdrf. Hooghly.
