This complaint U/S 35 of C.P. Act, 2019 was initially filed against the Opposite Party (O.P.) 1) The Manager, The Star Health & Allied Insurance Company Limited, Having its office at Ukilpara More, P.S.- Kotowali, P.O. & Dist.- Jalpaiguri, Pin Cod- 735101 and Proforma Opposite Party (Pro. O.P.)   1) The Branch Manager, National Insurance Co. Ltd., At 93A Rabindra Avenue, No.1 Government Colony, P.S.- English Bazar, P.O. & Dist.- Malda, Pin Code- 732101 2) Dr. Rajesh Nanda, M.B.B.S., M.D. (Medicine), D.N.B. (Cardiology), At Neotia Gatewel Health Care, Center at Uttarayan Township, P.O. & P.S. - Matigara, Dist.- Darjeeling, Pin Code- 734010. 3) The C.E.O., I.R.D.A., at Gate No. 3, Jiban Tara Building, 1^st Floor, Samsad Marg, New Delhi, P.O.- Barada House, P.O.- Barada House, P.S.- Mandi Marg, Dist.- Central Delhi, Pin Code- 11001. The O.P. and the PRO. O.P. No.1 contested the case by filing Written Version (W.V.).

The brief fact of the case of the complainant as per his complaint and Brief Note of Argument (B.N.A.) is as follows-

The complainant purchased one Medi-claim Policy since 2007 being policy No. 15070050190001043 from the Malda Branch Office of National Insurance Co. Ltd. (Pro O.P. No.1) and at the time of making the said policy, a bilateral contract made between the complainant and the Pro. O.P. No.1 on mandatory health examination or health checkup which is/ was always done by an empanelled doctor from the panel list of the O.P. Company and a certificate is given to the effect of present health condition of the insured person under the said coverage and without the opinion of the doctor or fit certificate is given by him no policy is commenced. On 30.11.2020, the complainant had ported the policy to the O.P. (The Star Health & Allied Insurance Company Limited) vide Policy No. P/191134/01/2021/001069 from 30.11.2020 to 29.11.2021 for a sum insured of Rs. 3,00,000/- (Rupees Three Lakh) only, i.e., limit of coverage (Previous Policy No. 15070050190001043) since 2007 to the National Insurance Co. Ltd. (Pro O.P. No.1) for the insurance persons namely the complainant (self), Ujjayani Dey Biswas (wife) and Shrestha Biswas (minor daughter) at the time of policy under the O.P. in the name and style of Family Health Optima Insurance Plan the pre existing diseased in specified column therein to the complainant was written “disease of nose and related complications hyper tension and its complications.” The O.P. had issued a collection receipt of Rs. 13,811/- (Rupees Thirteen Thousand Eight Hundred and Eleven) only accordingly in favour of the complainant on 05.11.2020.  The complainant mentioned that when someone transfers to a new policy from an old one (also from one Insurer to another) benefits accrued in the existing policy continue to the new policy of benefit and seniority without interruption under the guidelines of I.R.D.A.

On 17.04.2021 the complainant went to Banarhat OF Jalpaiguri district as a Presiding Officer to conduct Assembly Election and there he suddenly felt sick seriously and was taken to the Banarhat Hospital (M.P.H.C.) of Jalpaiguri district by the other personnel available on the said Election duty and later he was taken by his family members to his residence. Thereafter, the complainant went to the Pro. O.P. No.2 namely Dr. Rajesh Nanda, M.B.B.S., M.D. (Medicine), D.N.B. (Cardiology) who prescribed the complainant some medicines and advised for some test including imaging test and echo cardiography and T.M.T. and on 30.04.2021 the said test was done and the Pro. O.P. No.2 suggested the complainant to continue the prescribed medicines. For the said test purpose the complainant paid Rs. 30,088/- (Rupees Thirty Thousand and Eighty Eight) only. Thereafter, the complainant submitted a claim form with all necessary documents in regard to the disbursement of policy claim to the O.P. with proper manner including signed and sealed hospital papers. But the O.P. through a letter dated 16.09.2021 repudiated the claim of the complainant on the ground of any admission for diagnostic and evaluation purpose along with the plea of pre existing disease which was unjustified and improper. The complainant communicated the O.P. through e-mails but did not get any result. Finally, having no other alternative the complainant lodged this case.  

The prayers of the complainant are as follows-

1. Admit the petition.

2. To pass an order directing the O.P. to make release, payment or disburse the payment of Rs. 30, 088/- (Rs. Thirty Two Thousand and Eighty Eight) only to the complainant, as Insurance Claim.

3. To pass an order directing the O.P. to pay a sum of Rs. 2, 00, 000/- (Rupees Two Lakh) only for the improper, unjustified, arbitrary and whimsical causing of pecuniary loss causing harassment, mental pain, sufferings and agony to the complainant.

4. To pass an order directing the O.P. to pay compensation to the complainant of Rs. 2, 00, 000/- (Rupees Two Lakh) only for practicing for unfair trade practice and deficiency in service by the O.P.

5. Cost of the litigation amounting to Rs. 20, 000/- (Twenty Thousand) only.

6. Any other relief/ reliefs as your honour may deem fit and proper.

                   List of documents filed by the complainant:

1. Photocopy of Family Health Optima Insurance Plan Photocopy of discharge certificate being Policy No. P/191134/01/2021/001069 of the complainant. 
2. Photocopy of collection receipt dated 05.11.2020 for the said policy.
3. Photocopy of O.P.D. Consultation prescription (over leaf) of Dr. Rajesh Nanda, Neotia Hospital.
4. Photocopy of Admission case sheet collectively.
5. Photocopy of Claim Form- Part A and Part B.
6. Photocopy of Discharge Summary collectively.
7. Photocopy of TMT Report, Eco Cardiography, Angiography Report, and Blood Report collectively.
8. Photocopy of Bill of supply cum receipt collectively.
9. Photocopy of Repudiation letter of claim dated 16.09.2021.
10.  Photocopy of e-mail by the complainant dated 18.12.2021 collectively.   

          Regarding this instant case, the Opposite Party (O.P.) 1) The Manager, The Star Health & Allied Insurance Company Limited, Having its office at Ukilpara More, P.S.- Kotowali, P.O. & Dist.- Jalpaiguri, Pin Cod- 735101 and Proforma Opposite Party (Pro. O.P.)   1) The Branch Manager, National Insurance Co. Ltd., At 93A Rabindra Avenue, No.1 Government Colony, P.S.- English Bazar, P.O. & Dist.- Malda, Pin Code- 732101 2) Dr. Rajesh Nanda, M.B.B.S., M.D. (Medicine), D.N.B. (Cardiology), At Neotia Gatewel Health Care, Center at Uttarayan Township, P.O. & P.S. - Matigara, Dist.- Darjeeling, Pin Code- 734010. 3) The C.E.O., I.R.D.A., at Gate No. 3, Jiban Tara Building, 1^st Floor, Samsad Marg, New Delhi, P.O.- Barada House, P.O.- Barada House, P.S.- Mandi Marg, Dist.- Central Delhi, Pin Code- 11001. The O.P. and the Pro. O.P. No.1 contested the case by filing Written Version (W.V.).

The brief fact of the case of the O.P. as per his Written Version (W.V.) and Brief Note of Argument (B.N.A.) is as follows-

             The O.P. submitted that no medical check-up of the complainant was conducted while porting from Pro. O.P. No.1 to the O.P. since the age of all insured covered under the current policy of the O.P.  were all under age of 50 years. The complainant, Mr. Amar Chandra Biswas took Family Health Optima Insurance Policy covering himself, spouse (Mrs. Ujjayani Dey Biswas) and dependent child Shrestha Biswas for a floater Sum Insured of Rs. 3,00,000/- (Rupees Three Lakh) only vide Policy No. P/191134/01/2021/001069 for the period from 30.11.2020 to 29.11.2021. The O.P. had informed the complainant vide policy schedule dated 13.11.2020 that “…. it is the duty of the proposer to fill the proposal form and also to make sure that the proposal contains all the details correctly” with a further caution that “ If you or any of the insured person(s) have suffered or suffering from any of the diseases which has not been mentioned in the proposal, the claim that may arise will result in the repudiation of the claim/ cancellation of the policy.” In this regard, the complainant was given a period of 15 days from the date of receipt of the policy in case of any changes/ modifications but the complainant did not exercise this right within 15 days from the date of receipt of the policy. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the policy schedule but the complainant also kept silent on his pre existing medical conditions and thereby breaching the terms of the policy. As the complainant failed to disclose the discomfort faced by him in his chest for the past 2-3 years results to non-disclosure of pre-existing medical condition as per Standard Condition no. 5(6) of the policy at the time of inception of policy from 30.11.2020 to 29.11.2021 and hence, the O.P. Insurance Company was left with no other option but to repudiate the claim. In support of his statements the O.P. mentioned some judgments in this regard.

          List of documents filed by the O.P.:

1. Copy of Customer Information Sheet.
2. copy of Letter dated 13.11.2020 issued to the complainant by the O.P.
3. Copy of Policy Documents.
4. Copy of judgment, Satwant Kaur Sandhu vs New India Assurance Company Limited on 10 July, 2009 (CIVIL APPLE NO. 2776 OF 2002).
5. Copy of judgment, D.C.D.R.C., Tamluk (Consumer Case No. 178 of 2022)

The brief fact of the case of the Pro. O.P. No.1 as per his Written Version (W.V.) and Brief Note of Argument (B.N.A.) is as follows-

             The Pro. O.P. No.1 denied all the statements made by the complainant and argued that the Pro. O.P. had no knowledge regarding treatment procedure of the complainant. Regarding the claims of complainant during the period when the cause of action arose for filing this case by the complainant, the complainant was no way a consumer under the Pro. O.P. No.1.   

Having heard, the Ld. Advocate of the parties and on perusal of the Complaint and documents filed by the parties the following points are taken to be decided by this Commission.

 Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

                                       Decision with reason:-

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the parties, supported by the affidavit, documents filed by the parties. We are also heard argument of both sides in full length.

In this case on 30.11.2020, the complainant had ported the policy to the O.P. (The Star Health & Allied Insurance Company Limited) vide Policy No. P/191134/01/2021/001069 from 30.11.2020 to 29.11.2021 for a sum insured of Rs. 3,00,000/- (Rupees Three Lakh) only, i.e., limit of coverage (Previous Policy No. 15070050190001043) since 2007 to the National Insurance Co. Ltd. (Pro O.P. No.1) for the insurance persons namely the complainant (self), Ujjayani Dey Biswas (wife) and Shrestha Biswas (minor daughter). Hence, this Commission has no doubt to hold that the complainant is a very much consumer under the Consumer Protection Act 2019.

The complainant resides in Jalpaiguri and the O.P. is also carrying his business in Jalpaiguri. Thus, there is no doubt that this Commission has its territorial jurisdiction to decide this case as per the Consumer Protection Act 2019.

In order to prove the case the complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which day he ported the policy from the Pro. O.P. No.1 to the O.P., also narrated the coverage date of policy. The complainant has stated on which day he went to the O.P. for getting his claim. The complainant has also stated in his evidence that the he communicated with the O.P. through e-mail but the O.P. did not make any payment till today.

In view of above discussion and other materials on record we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.

At the time of argument Ld. Advocate of the Complainant submits that the complainant has been able to prove its case against the O.P not only through her Written Deposition but also by producing documents.

In this instant case, it is clear from evidences and documents that on 30.11.2020, the complainant had ported the policy to the O.P. (The Star Health & Allied Insurance Company Limited) vide Policy No. P/191134/01/2021/001069 from 30.11.2020 to 29.11.2021 for a sum insured of Rs. 3,00,000/- (Rupees Three Lakh) only, i.e., limit of coverage (Previous Policy No. 15070050190001043) since 2007 to the National Insurance Co. Ltd. (Pro O.P. No.1) for the insurance persons namely the complainant (self), Ujjayani Dey Biswas (wife) and Shrestha Biswas (minor daughter). On 17.04.2021 the complainant suddenly felt sick seriously and was taken to the Banarhat Hospital (M.P.H.C.) of Jalpaiguri district by the other personnel available on the said Election duty and later he was taken by his family members to his residence. Thereafter, the complainant went to the Pro. O.P. No.2 namely Dr. Rajesh Nanda, M.B.B.S., M.D. (Medicine), D.N.B. (Cardiology) who prescribed the complainant some medicines and advised for some test including imaging test and echo cardiography and T.M.T. and on 30.04.2021 the said test was done and the Pro. O.P. No.2 suggested the complainant to continue the prescribed medicines. For the said test purpose the complainant paid Rs. 30,088/- (Rupees Thirty Thousand and Eighty Eight) only. Thereafter, the complainant submitted a claim form with all necessary documents in regard to the disbursement of policy claim to the O.P. with proper manner including signed and sealed hospital papers. But the O.P. through a letter dated 16.09.2021 repudiated the claim of the complainant on the ground of any admission for diagnostic and evaluation purpose along with the plea of pre existing disease which was unjustified and improper. The complainant communicated the O.P. through e-mails but all were in vain.

In support of his defense, the O.P. submitted that no medical check-up of the complainant was conducted while porting from Pro. O.P. No.1 to the O.P. since the age of all insured covered under the current policy of the O.P.  were all under age of 50 years. The complainant, Mr. Amar Chandra Biswas took Family Health Optima Insurance Policy covering himself, spouse (Mrs. Ujjayani Dey Biswas) and dependent child Shrestha Biswas for a floater Sum Insured of Rs. 3,00,000/- (Rupees Three Lakh) only vide Policy No. P/191134/01/2021/001069 for the period from 30.11.2020 to 29.11.2021. The O.P. had informed the complainant vide policy schedule dated 13.11.2020 that “…. it is the duty of the proposer to fill the proposal form and also to make sure that the proposal contains all the details correctly” with a further caution that “ If you or any of the insured person(s) have suffered or suffering from any of the diseases which has not been mentioned in the proposal, the claim that may arise will result in the repudiation of the claim/ cancellation of the policy.” In this regard, the complainant was given a period of 15 days from the date of receipt of the policy in case of any changes/ modifications but the complainant did not exercise this right within 15 days from the date of receipt of the policy. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the policy schedule but the complainant also kept silent on his pre existing medical conditions and thereby breaching the terms of the policy. As the complainant failed to disclose the discomfort faced by him in his chest for the past 2-3 years results to non-disclosure of pre-existing medical condition as per Standard Conditiuon no. 5(6) of the policy at the time of inception of policy from 30.11.2020 to 29.11.2021 and hence, the O.P. Insurance Company was left with no other option but to repudiate the claim. In support of his statements the O.P. mentioned some judgments of Hon’ble Higher Courts in this regard.

In connection with this case, the Pro. O.P. No.1 denied all the statements made by the complainant and argued that the Pro. O.P. had no knowledge regarding treatment procedure of the complainant. Regarding the claims of complainant during the period when the cause of action arose for filing this case by the complainant, the complainant was no way a consumer under the Pro. O.P. 

In this context, it is fact that the complainant had a purchased one Medi-claim Policy from National Insurance Co. Ltd. (Pro. O.P. No.1) since 2007 and on 30.11.2020, the complainant had ported the said policy from the National Insurance Co. Ltd. (Pro. O.P. No.1) to the O.P. (The Star Health & Allied Insurance Company Limited) vide Policy No. P/191134/01/2021/001069 from 30.11.2020 to 29.11.2021 for a sum insured of Rs. 3,00,000/- (Rupees Three Lakh) only. So, there is no doubt that the complainant was well covered under the policy period. This Commission does not find any evidence from the National Insurance Co. Ltd. (Pro. O.P. No.1) that the complainant had claimed any amount from the National Insurance Co. Ltd. (Pro. O.P. No.1). So, it is clear that the O.P. had no knowledge about complainant’s illness. In his letter dated 18.12.2021, the complainant had clearly stated that he had not taken any medical treatment on that issue. Moreover, it is the duty of the insurance company, before issuing any insurance policy, if the insurance company has any doubt then the insurance company can easily conduct a medical check-up and if the insurance company satisfied then they issue a policy. So, this Commission holds that in this case the O.P. Insurance Company cannot escape from his liability only mentioning that the insurer/ complainant had a pre-existing disease. In this case, the O.P. failed to prove that the complainant had a pre-existing disease and the complainant intentionally suppressed the fact before taking the said policy.

So, this Commission finds deficiency of service in the part of the O.P. (The Star Health & Allied Insurance Company Limited). In this case the O.P. is liable. The complainant is entitled to get Rs. 30, 088/- (Rs. Thirty Two Thousand and Eighty Eight) only from the O.P.

Hence, it is therefore,

ORDERED

That the Consumer Case No. 60/2022 be and same is allowed on contest against the O.P. (The Star Health & Allied Insurance Company Limited) with cost. In this case the O.P. is liable.

   The O.P. is directed to pay Rs. 30, 088/- (Rs. Thirty Thousand and Eighty Eight) only the complainant within 45 days from the date of this order, i.e., from 11.12.2024 failing which the complainant is entitled to get simple interest @ 6% per annum from the date of filing of this case, i.e., from 19.07.2022. The complainant is also entitled to get Rs. 10, 000/- (Rupees Ten Thousand) only for mental pain and agony and harassment and Rs. 10, 000/- (Rupees Ten Thousand) only for litigation cost. The O.P. is also directed to deposit Rs.7, 000/- (Rupees Seven Thousand) only to the Legal Aid Account of this Commission within 45 days from the date of this order, i.e., from 11.12.2024. The O.P. shall pay the entire amount through an account payee cheque within 45 days from the date of this order, i.e., from 11.12.2024, in default the complainant will be at liberty to execute the order as per law.7

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.