The case of the complainants is that they are the consumers of the opposite party, New India Assurance Co. Ltd. They insured their health under the Senior Citizen Mediclaim Policy from the New India Assurance Co. Ltd. on 02.05.2012 and paid a sum of Rs. 8,192/- towards premium for said policy through its agent at Serampore Branch, West Bengal. Complainant No. 2 purchased a health insurance under the Senior Citizen Mediclaim Policy from the OP No. 1 which covered all medical expenses of his mother i.e. complainant No. 1. The said policy issued on 02.05.2012 that provided health cover as sum insured of Rs. 1,00,000/- each. OP No. 1 being insurer after clinically and medically test of OP No. 1 satisfied and granted the insurance coverage. After taking the policy the complainant No. 1 failed into ailments as such she was admitted into Disha Eye Hospital Pvt. Ltd. Kolkata on 06.01.2015 and after proper treatment she was discharged on 08.01.2015 from the Hospital. The entire cost of the treatment in the aforesaid Hospital was not borne by the Insurer, OP No. 1and all medical expenses were borne by the complainant No. 2. In the meantime the complainant No. 2 renewed the said Health Ensure Policy by paying a sum of Rs. 8,192/- on 23.04.2013 towards premium for Health Ensure Policy as the Senior Citizen Mediclaim Policy and policy issued on 02.05.2013 covering period 2nd May, 2013 to 1st May, 2014 and it provided health cover as sum insured of Rs. 1,00,000/- each and again perform all clinical and medical test and being satisfied OP No. 1 renewed the 2nd year policy. In the meantime the complainant No. 2 renewed the said health ensured policy by paying Rs. 8,647/- on 22.04.2014 as Senior Citizen Mediclaim Policy (Hospitalization Benefit Policy) having covering period 2nd May, 2014 to 1st May, 2015, sum assured Rs. 1,00,000/- each after conducting medical test renewed the 3rd year policy. Complainant No. 1 herself and on behalf of the Complainant No. 2 wrote letters requesting the OP to pay the entire treatment cost of the complainant under the policy ensured by the insurer OP, dated 19.01.2015 and claimed a sum of Rs. 36,603/- and OP No. 1 only of Rs. 9,600/- and rest amount of Rs. 27,000/- is not paid by him and after eye operation of the complainant No. 1 her medicine was continued and those medicines expenses of Rs. 18,000/- was borne by the complainant No. 2 and total expense for treatment of complainant No. 1 after operation is Rs. 54,603/- and the total amount would be paid of Rs. 45,000/- by the OP No. 1. Due to reluctance of the Opposite Party Insurance Company in renewal of the health policy as stated and non disbursement of the amount incurred for the treatment of the complainant No. 1 in Disha Eye Hospital at Calcutta from 06.01.2015 to 08.01.2015 the complainants have been suffering irreparable loss and substantial injury and due to such suffering complainant No. 2 has also suffered from acute mental agony and monetary loss though the health policy still in force. So the complainants filed the instant complaint before this Forum praying for a direction upon the opposite party No. 1 to pay a sum of Rs. 45,000/- as cost of the medical treatment of the complainant No. 2 and a sum of Rs. 20,000/- for mental agony and damages and Rs. 15,000/- as litigation cost to the complainant No. 2.
OP Insurance Company by filling written version denied the allegations as leveled against him and averred that after obtaining the said claim from the complainants the Branch Office of the company sent the aforesaid claim file to T.P.A. being the Claim Adjudicating Authority as per terms and conditions of the mediclaim policy. The said Claim Adjudicating Department on receipt of the said claim as per rules guiding the aforesaid Senior Citizen Mediclaim Policy started to proceed with the settlement of the said claim arising out of treatment and operation of insured Gouri Mukherjee, who was admitted in Disha Eye Hospital, Barrackpore, Kolktata on 06.01.2015 and after two operations, one cataract surgery and two cornea transplantation surgery done by Dr. Samar Kumar Basak at the same time she was discharged on 08.01.2015 from the Hospital. All the expenses incurred for the said operations and treatment were paid by the complainant by cash and thereafter the complainant made claim to the Serampore Branch Office on 17.01.2015 along with medical documents and bills and vouchers claiming total expenses of Rs.36,603/- for the same. The said T.P.A. being Claim Adjudicating Authority on scrutiny of the documents including bills and vouchers observed that bills issued by the said Eye Hospital against the two operations and his treatments were not bifurcated and the bills of expenses incurred against individual operation and treatment were very much urgent and necessary to ascertain the liability of the Insurance Company to settle the said claim wherein expenses for operation of cataract is involved and maximum liability of the company for cataract operation was Rs.10,000/- minus deductable amount of Rs.1,000/- as per aforesaid policy condition. Substantially, the said T.P.A. requested the complainant to collect the bifurcated separate bills against expenses incurred for said two operations and treatment for the aforesaid hospital but failed to produce the same. The complainant requested to enhance the claim from Rs.36,603/- to Rs.37,454/- vide its letter dated 18.02.2015. T.P.A. and the Branch Office of OP Insurance Company sent several letters of request to the aforesaid Disha Eye Hospital for issuance of separate bifurcated bills against said two operations and treatment for the purposes stated therein and lastly on 07.01.2016 the treating Hospital stated that they are unable to give individual bills of each of the said operations and treatments on the grounds pointed out therein. Finding no alternative the TPA paid Rs. 9,415/- including pre operation cost of Rs. 415/- subject to the deduction of Rs. 1,000/- from the total admissible amount of Rs. 10,000/- for cataract operation under the above said senior citizen mediclaim policy and closed the said file. T.P.A. informed the same to the complainant vide its letter dated 03.07.2015. Thereafter the complainant requested the T.P.A. to enhance the claim amount supported by post operation bills not in time and the said Claim Adjudicating Authority refused to do the same as the said bills were not in time supported by policy conditions. Consumer Affairs Department, Govt. of West Bengal arranged a tripartite meeting to settle the dispute and after discussion said department requested the Disha Eye Hospital Authority to send bifurcated bills against expenses for the said two operations and treatment head wise separately to settle the said dispute in question. But despite receiving two letters of Consumer Affairs Department, Disha Eye Hospital remained silent. Then the Consumer Affairs Office, Calcutta vide its letter dated 22.08.2016 advised the complainant to lodge a complaint before CDRF, Hooghly seeking reliefs. So it is clear that the T.P.A. being the claim Adjudicating Authority rightly allowed the cost of cataract operation following the terms and conditions of the said policy. But could not reimburse the balance amount for cornea transplantation surgery for lack of bifurcated bills. Hence, the New India Assurance Co. Ltd. is no how liable for the same and they have no deficiency in service. The answering OP also assailed that Disha Eye Hospital ought to be necessary party in this complaint case. So, due to lack of necessary party the complaint petition is liable to be rejected with cost.
Complainant No. 2 filed affidavit in chief in which he stated the facts as enumerated in the complaint petition.
OP Insurance Co. filed affidavit in chief by its Divisional Manager, Chinsurah Division and supported the written version in toto. He also filed a few xerox copies of money receipts of treating Hospital and Xerox copy of e-mail sent by the treating Hospital refusing to issue bifurcated bills. He also denied that this OP did not pay the rest amount of the claim of the complainant intentionally. So he has no deficiency of service.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant & opposite party heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainants Gouri Mukherjee & Jyotirmoy Mukherjee ‘Consumers’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainants?
4. Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
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.
(1).Whether the Complainants Gouri Mukherjee & Jyotirmoy Mukherjee ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainants herein being the policyholder of OP Insurance Company and the OP admitted the said medical insurance so the complainants are entitled to get service from the OP, being insurer is responsible to provide service to its consumers.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants and opposite party are residents/carrying on business within the district of Hooghly. The complainants prayed for a direction upon the opposite party to pay a sum of Rs. 45,000/- as cost of the medical treatment of the complainant No. 2 and a sum of Rs. 20,000/- for mental agony and damages and Rs. 15,000/- as litigation cost to the complainant No. 2 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.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the complainants took medical insurance before the said company without any doubt.
It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
The case of the complainants is that they insured their health under the Senior Citizen Mediclaim Policy from the New India Assurance Co. Ltd. on 02.05.2012 since then they are paying/ renewing the policy every year by paying premiums and within the period the complainant No.1 suffered from eye problem and treated her before the Disha Eye Hospital, Barrackpore after proper treatment she was discharged on 08.01.2015 from the Hospital. The entire cost of the treatment in the aforesaid Hospital and all medical expenses were borne by the complainant No. 2. Complainant No. 1 herself and on behalf of the Complainant No. 2 wrote letters requesting the OP to pay the entire treatment cost of the complainant under the policy ensured by the insurer OP and claimed a sum of Rs. 36,603/- and OP No. 1 paid only of Rs. 9,600/- and rest amount of Rs. 27,000/- is not paid by him and after eye operation of the complainant No. 1, her medicine was continued and those medicines expenses of Rs.18,000/- was borne by the complainant No. 2 and total expenses for treatment of complainant No. 1 after operation is Rs. 54,603/- and the total amount would be paid of Rs. 45,000/- by the OP No. 1
After obtaining the said claim from the complainants the Branch Office of the OP company sent the claim file to T.P.A. being the claim Adjudicating Authority as per terms and conditions of the mediclaim policy. The said Claim Adjudicating Department on receipt of the said claim as per rules guiding the aforesaid Senior Citizen Mediclaim Policy started to proceed with the settlement of the said claim arising out of treatment and operation of insured Gouri Mukherjee, who was admitted in Disha Eye Hospital, Barrackpore, on 06.01.2015 and after two operations, one cataract surgery and two cornea transplantation surgery done by Dr. Samar Kumar Basak at the same time she was discharged on 08.01.2015 from the Hospital. All the expenses incurred for the said operations and treatment were paid by the complainant by cash and thereafter the complainant made claim to the Serampore Branch Office on 17.01.2015 along with medical documents and bills and vouchers claiming total expenses of Rs. 36,603/- for the same. The said T.P.A. being Claim Adjudicating Authority on scrutiny of the documents including bills and vouchers observed that bills issued by the said Eye Hospital against the two operations and his treatment were not bifurcated and the bills of expenses incurred against individual operation and treatment were very much urgent and necessary to ascertain the liability of the Insurance Company to settle the said claim wherein expenses for operation of cataract is involved and maximum liability of the company for cataract operation was Rs.10,000/- minus deductable amount of Rs. 1,000/- as per aforesaid policy condition. Substantially, the said T.P.A. requested the complainant to collect the bifurcated separate bills against expenses incurred for said two operations and treatment for the aforesaid Hospital but failed to produce the same.
As a result the opposite party insurance company did not pay the remaining amount out of Rs.36,603/- due to lack of bifurcated bills. The answering OP also stated that he tried to get bifurcated bills from the Disha Hospital, Barrackpore but the said hospital declined to issue bifurcated bills in respect of treatment of the complainant No.1. The complainant in his complainant petition stated that Consumer Affairs Department, Govt. of West Bengal arranged a tripartite meeting to settle the dispute and after discussion said department requested the Disha Eye Hospital Authority to send bifurcated bills against expenses for the said two operations and treatment head wise separately to settle the said dispute in question. Despite receiving two letters of Consumer Affairs Department, Disha Eye Hospital remained silent. Then the Consumer Affairs Office, Calcutta vide its letter dated 22.08.2016 advised the complainant to lodge a complaint before CDRF, Hooghly seeking reliefs.
So from the face of the case record it is transparent that the complainant No.1 being a mediclaim policyholder received treatment in her eyes from the Disha Hospital resulting to expense amounting to Rs.36,603/- and after the said treatment the complainant filed the claim form before the insurance company . The OP Company paid only Rs.10,415/- to the complainant but remaining amount is not paid as the column 2.1.1 of the said policy speaks that maximum charges for Cataract with imported foldable lens is fixed Rs.10000/- but there is no other head in respect of eye treatment. Banking upon policy in respect of treatment and due to lack of bifurcated the TPA could not settle the claim as a result the insurer paid only Rs.10,415/- to this complainant. But the fact remains that the complainant No.1 treated her eyes before the Disha hospital at Barrackpore and conducted two operations and the hospital authority prepared one bill for two operations as a result the OP could not reimburse the balance amount for cornea transplantation surgery for lack of bifurcated bills. From the case record it is crystal clear that the complainants tried to get bifurcated bills from the said hospital but failed due to non-cooperation on the part of Disha Hospital. The complainants also attempted through the Consumer Affairs Department to get the same but their efforts come into all in vain. The answering OP also tried to get bifurcated bills from the Disha Hospital but they also failed. So we are in the opinion that the complainant treated in her eyes before the Disha Hospital Barrackpore and the expenditure caused due to her treatment is to be reimbursed by the OP insurance company from where she received the mediclaim policy. The treatment of the complainant No.1 and the expenditure borne by the policyholder is not disputed by the OP insurance Company they only disputed the processing of bills by the treating hospital. So we may conclude that due to lack of bifurcated bills the claim of the complainant should not be repudiated or reduced by the OP merely on the technical ground.
Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company shall not repudiate/ reduce the claim of the complainant only on the ground that the complainant failed to produce bifurcated bills for two separate operations.
So we are in a considered opinion to allow the complaint as policy holder has done her treatment in eyes before the Disha Hospital within the coverage of her policy and the bill generated by the treating hospital is not paid by the insurer in full. By the name of bifurcated bills the OP insurance Company tried to evade its liability so the OP insurance Company is liable to pay remaining amount from the total claim of Rs.36,603/-.
4. Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove their case and the Opposite Party is 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 with a litigation cost of Rs.5,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainants. We, therefore, allow the complaint and Opposite Party is directed to pay the sum amounting to Rs.26,178/- including interest @ 10% from the date of repudiation of claim by the OP till realization in favour of the complainant within 45 days from the date of order.
No other reliefs are awarded to the complainants for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party 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.
