JUDGEMENT

          Complainant by filing this complaint has submitted thatcomplainant and his family members have been holding Mediclaim Insurance Policy since last 14 years that is on and from 31.07.2001 by renewing the said policy yearly without any break and last renewal was made in the month of August 2014 and within the 14 years, complainant did not claim any money from the ops/Insurance Company.  Subsequently complainant was suffering from Hernia pain and under the treatment of Dr. Supriya Mukherjee and as per his advice he took opinion from Dr. Mrinmoy Nandi and after check-up by Dr. Nandi, complainant was advised for operation of the said Hernia.

          Thereafter several tests Dr. Nandi advised the complainant for operation and accordingly complainant was admitted at AurobindaSeva Kendra after prolong treatment and on 06.08.2013 Dr. Mrinmoy Nandi made operation of the complainant’s Harnia successfully and complainant before two months from the date of operation and after two months from the date of operation including admission charges in the Nursing Home along with other treatment charges spent a lot of money amounting to Rs. 99,621/- having Medical Insurance claim and paying policy amount since last 14 years more or less to the op no.2 since July 2001.

          As because after operation complainant became very ill and unable to move and so requested Sri Dipak Mukherjee by whom the Mediclaim Insurance Policy was opened to submit the available documents at that moment for getting a temporary claim amount Rs. 17,000/- out of which ops gave Rs. 12,500/- to the complainant.  But final bill for total expense for the treatment of the complainant was submitted by Advocate’s letter dated 31.10.2013 along with all bills etc. to the op no.1 who is the authority to pay the claim amount on behalf of the op no.2.

          On receipt of the said Lawyer’s letter dated 31.10.2013 only Rs. 12,500/- was paid by the op to the complainant.  Though complainant was entitled to get Rs. 82,122/- from the ops which op refused to pay with some false plea that has not been realized as yet.  Though complainant made several requests and as per contract, complainant is entitled to get the entire amount and for such sort of unethical act on the part of the ops also for adopting unfair trade practice, complainant has prayed for redressal and for directing the op to pay a sum of Rs. 1,52,121/- i.e. including cost, compensation and balance amount of the Mediclaim.

          On the other hand Insurance Company op no.2 by filing written statement submitted that in order to realize huge amount against the policy condition, this complaint is filed which is not maintainable and barred by limitation.  But fact remains that complainant took out individual Health Insurance Policy bearing Policy No. 030300/48/13/97/00003059 which was valid for the period from 31.07.2013 to 30.07.2014 covering the risk of hospitalization expenses of the complainant and his wife with sum insured value of Rs. 50,000/- each subject to terms, conditions, limitations and exceptions of the said policy.

          During subsistence of the said policy, the concerned TPA being op no.1 received a letter of intimation dated 05.08.2013 from the complainant about his admission at AurobindaSeva Kendra, Kolkata on 04.08.2013 and after surgery of Hernia, complainant was discharged on 10.08.20123 from the said hospital and thereafter submitted claim form to the said TPA on 19.08.2013 raising a total claim of Rs. 56,863/- as hospitalization expenses etc. and after considering the nature of the operation and diagnosis of complainant, it came out candid clear to the said TPA underwent a surgery of his right inguinal hernia which was repaired with prolene mesh and the relevant clause being 1.2.1 of the said policy inter-alia provides that expenses in respect of the following specified illness will be restricted and also in the present case clause 1.3 of the said policy is applicable.

          So considering both the criteria of the clauses as stated the relevant TPA settled the total claim at Rs. 17,500/- (25percent of Rs. 50,000/- + 10percent of Rs. 50,000/- i.e. Rs. 12,500/- + Rs. 5,000/-) maximum permissible limit of the said policy and after having settled the relevant TPA disbursed the settled sum of claim in favour of the complainant through NEFT and thereby crediting the bank account of the complainant and the details of such settlement was explained to the complainant by letter of the TPA dated 27.08.2013.  Thereafter complainant through his Ld. Lawyer disputed the settlement and demanded the total treatment expenses was for Rs. 99,621/- and for which reimbursement of remainder of Rs. 82,121/- after adjusting Rs. 17,500/- was claimed.  But as per clause of the said Mediclaim Policy claim of the complainant has been correctly settled within the purview of the scope for further settlement of the claim and as per clause as already mentioned in clause 1.2.1 and 1.3 of the policy and in view of the above circumstances, there is no negligence on the part of the op and at the same time op did not adopt any unfair trade practice for which the complaint should be dismissed.

Decision with reasons

          On proper consideration of the argument as advanced by the Ld. Lawyers of both the parties and also considering the individual Health Insurance Policy 2010  bearing policy No.030300/48/13/97/00003059 valid from the period from 31.03.2013 to midnight of 31.03.2014, it is found no doubt the sum insured limit was Rs. 50,000/- and as per clause 1.2.1 it is expressed that in respect of hospital benefit for operation of Hernia or Histectomy or catractacbrst expenses incurred or 25percent of the sum insured whichever is less to be paid.

          It is specifically mentioned that as per clause 1.3 pre and post hospital expenses payable in respect of each hospitalization shall be the actual expenses incurred subject to maximum of 10percent of the sum insured whichever is less.  So, we have considered that those two clauses with meticulous care to come to a conclusion about the present consumer dispute as raised by the complainant and so the main question is whether the complainant is entitled to get the entire amount that is actual expenses incurred for such operation and pre and post hospitalization expenses as claimed by the complainant or not.  At the same time it must be looked into whether the ops have already settled the claim as per Clause of the policy or not.  No doubt in this case sum insured is Rs. 50,000/- and it is also admitted position that complainant spent actually Rs. 99,621/- for which claim was submitted.

          But truth is that op already settled the claim and disbursed Rs. 17,500/- and complainant has received it no doubt.  Now at this position main factor should be considered whether complainant is entitled to balance amount of Rs. 82,621/- and no doubt to decide this dispute as raised by the complainant we are invariably guided by the contract in between the both parties that is Mediclaim Policy and its clause.  Copy of the policy has been submitted by the complainant.  Truth is that Hernia operation was made by doctor and from the medical bill, it is found that he spent Rs. 99,621/- and it is no doubt including pre and post hospitalization treatment cost also.  But as per provision of law, Forum cannot go beyond the contract and there is no scope on the part of the Forum to give any alm to any consumer by passing the contract that is Mediclaim Policy by any means whatsoever and any attempt on the part of the Forum to give relief to the consumer by passing contract means Forum is not properly passing any order illegally because it is mandatory and National Commission and also the Supreme Court has ordered that Forum has no legal authority to give any relief by passing any contractual obligation of the policy and in all respect Forum shall be guided by the contract and no doubt parties shall be strictly governed by the policy condition and no exception or relaxation can be made on the ground of the equity as per findings of National Commission ruling reported in 2013 (4) CPR 165 NC.  So, relying upon that ruling and also the principal of law and further considering the present Mediclaim Policy and its terms and conditions we find that sum insured was Rs. 50,000/-.  Operation was no doubt for Hernia and treatment was for Hernia operation including pre and post-operative treatment relief to the said Hernia operation.

          So, invariably as per provision of Clause 1.2.1, complainant is entitled to 25percent of the sum insured not actual cost he incurred and in this regard Insurance Company has already assessed Rs. 12,500/- that is 25percent of the total sum insured Rs. 50,000/- and further assessed Rs. 5,000/- for pre and post-operative treatment of total sum insured of Rs. 50,000/- and accordingly as per terms and conditions of the policy and considering the total sum insured of Rs. 50,000/- we have calculated the sum and it is found that complainantis entitled to Rs. 12,500/- for Hernia operation etc. and Rs. 5,000/- for pre and post hospital charge that is 10percent total sum insured and complainant is legally entitled to Rs. 17,500/-.

          Truth is that TSP disbursed to settle the claim in favour of the complainant.  So, we find that the assessment is made by the ops in respect of the claim of the complainant is no doubt as per terms and conditions of the policy and in the eye of law we have no doubt to express that op never deceived the complainant by any means whatsoever.  Rather they applied the legal norms as per terms and conditions of the policy and practically ops rightly settled and disbursed the amount of Rs. 17,500/- and which has already been received by the complainant.

          No doubt in the present case Ld. Lawyer for the complainant submitted that when it is noted as per policy the actual amount can be disbursed by the op but in place of that op has adopted the clause or and this type of decision of the TPA has not at all legal in view of the fact that there are two clauses against clause No. 1.2.1.  But on first portion it is noted actual expense for the operation thereafter by paying or 25percent of the sum insured, then it is the duty of the Forum to give relief in respect of the first part.  But in this regard we have gathered that the sentence which is included clause 1.2.1 is conjunctive because first part is actual expense spent for treatment after that or 25percent of the sum insured and thereafterthere is sentence whichever is less.  So, it is conjunctive that means whichever less is inclusive of both the sentences and considering the true spirit of the clause final result for decision to give relief whichever is less i.e. 25percent of the sum insured is the less than actual amount incurred.  So accordingly the Insurance Company rightly adopted binding clauses and for which the complainant is not entitled to get any further benefit.

          Another factor is that complainant’s claim is in respect of Rs. 99,621/- but total sum insured is Rs. 50,000/-.  Then under any circumstances complainant cannot claim more than Rs. 50,000/-, even if the entire expenditure is found Rs. 1,00,000/- or more.  But as because clause 1.2.1 and 1.3 are restricted clause.  Then restriction is applicable to both that cannot be violated by this Forum when both complainant and ops are guidedby the terms and conditions and governed by that rule and no doubt in this case ops and complainant are completely governed by that rule and for which we are convinced to hold that complainant is not entitled to get any further benefit after getting Rs. 17,500/- as Mediclaim final settlement made by the op and that was rightly settled and issued by the op to the complainant.  So, there is no negligence, deficiency or there is no legal infirmity in deciding the claim of the complainant and for which there is no legal merit in the present complaint for which this complaint fails.

          In this context it is to be mentioned that in this regard in some previous case prior to my regime some order had been passed by previous benches but after considering those judgement we have gathered that those judgement did not discuss or legally decide the principal as laid down regarding such contract and also did not consider the fact that the Forum has no authority to go beyond the law but in many cases Forum is found exceeding its jurisdiction by violating the judgement of Supreme Court also.  No doubt this type of tendency of the Forum should be controlled otherwise consumer justice system may be at stake.

          In the light of the above observation, the complaint fails.

          Hence, it is

ORDERED

          That the complaint be and the same is dismissed against the ops on contest but without any cost.