Complainant by filing this complaint has alleged that she has her one Mediclaim Policy 2007 (Hospitalisation Benefit Policy) bearing Policy No. 51250034110100001780 for the period from 10.05.2011 to 09.08.2012  for sum insured of Rs.1,00,000/- for each of the 3 family members namely Chhaya Gupta, Ajapa Gupta &Eshana Gupta and this policy is continuing since August 2006.

          Fact remains that due to excessive swelling under the whole neck and some other problems complainant’s daughter failed to open the jaws and doctors were consulted for treatment of her daughter Eshana Gupta and condition of her daughter was alarming and she was carried away to AurobindoSeba Kendra at Gariahat Road of South Jodhpur Park, Kolkata-700068 and at that place in the Emergency Department she was advised to consult Dr. D.J. Mukhopadhyay an E.N.T. Surgeon for necessary arrangement and advised for treatment.  That as per advice of Dr. D.J. Mukhopadhyay an E.N.T. Surgeon she was admitted to Sri AurobindoSeba Kendra on 27.12.2010 and C.T. Scan was done right on the next day i.e. on 28.12.2010 and as per report of the Dr. D.J. Mukhopadhyay (E.N.T. Surgeon) swelling of right side of face involving the lower jaw extending upto neck, with fever and dysohagia.  So, C.T. Scan done on 28.12.2010 revealed that extensive inflammatory mass having central areas of necrocilmandibular and parapharingiyal region, extending inferioty to the right supra glotic region.  Patient was managed with intravenous anti-biotic and food supplement were provided and later the source of infection was identified to be the Right Lower 2^nd& 3^rd molar.  Then she was operated under G.A. by Dental Surgeon Dr. Sohail Ali on 05.01.2011.

          The tests were made and medicines and injections were administrated as usual and treatment went on for the management of the troubles and puss from oral cavity was drained for relief and medicines were administered under the guidance of E.N.T. and the final diagnosis was recorded in the patient Discharge Summary & Certificate stating facial and neck cellulites due to absence at apex of imported right lower wisdom tooth and finally operation was performed on 05.01.2011 and was discharged on 09.01.2011 and the total expenses including the hospital bill stood at Rs. 1,05,028/- as she had to stay in the hospital for a long fortnight and the op company was duly appraised of the same.

          That in due course bills were submitted along with duly filled up mediclaim documents for reimbursement to the TPA who received on 10.04.2011.  But complainantwas shocked to get the repudiation letter and for which complainant again sent letter requesting the op to re-open the matter and to dispose of the said claim case but op again issued a reply on 19.05.2011 stating that repudiation in respect of the claim was quite okay and there is no necessity to re-consider the same and in the above circumstances for deficiency of service and repudiation by adopting negligent and deficient manner by op and for adopting unfair trade practice this complaint is filed praying for redressal.

          On the other hand op by filing written statement submitted that complainant has failed to prove by cogent documents and terms and conditions of the policy that the complainant is entitled to get any mediclaim in respect of the dental treatment and entire claim is false and as per terms and conditions of the policy dental ailments andcomplications are not covered and the patient had been treated for dental ailments so it does not fall within the specific scope and coverage of the policy and as such the complainant’s allegations are baseless and are not correct.  So, the complainant is not entitled to get any benefit and moreover from Dr. D.J. Mukhopadhyay (E.N.T. Surgeon’s) medical report it is clear that source of infection was identified to be the Right Lower 2^nd& 3^rd molar.  Then she was operated under G.A. by Dental Surgeon Dr. Sohail Ali on 05.01.2011 with reference para-10 to 12 of the complainant and further puss form oral cavity was drained for relief and medicines were administered by the Dental Surgeon.  So, it was related the treatment of dental affairs.  So, it does not come under the purview of the policy for which it was rejected.

Decision with reasons

          On proper consideration of the entire materials on record it is undisputed fact that complainant had such valid policy which is continuing when her daughter was admitted to hospital on 27.12.2010 and she was released on 09.01.2011 and from the Discharge Certificate of Sri AurobindaSeba Kendra it is proved that she was hospitalized for the period from 27.12.2010 to 09.01.2011 sofor about 12 to 13 days treatment was done no doubt.  But on diagnosis it was detected that facial and neck cellulites was caused due to absence at apex of imported right lower wisdom tooth.  Thereafter dental surgeon operated to remove the tooth and other part of the gum and thereafter she was cured from ailment and considering the documents it is clear that daughter of the complainant was suffering from dental ailment and no doubt she spent huge money in respect of which there is no denial and we believe that said amount was not for the treatment of her daughter regarding ailment of her tooth.  But we are completely guided by the spirit of the terms and conditions of the policy and as per policy conditions in respect of Medi-claim policy insurer is entitled to get such mediclaim policy if dental surgery is made following an accident but in other cases same is not applicable and if we rely upon that terms and conditions in that case no doubt complainant is not entitled to such claim.  But fact remains that the complainant opened her policy in the year 2006 and that has been continuing for more than 4 years and fact remains that as per terms and conditions “Heading compulsory coverage for any disease it is proved that complainant’s policy has been continued for more than 6 years.  So, in the said case no doubt complainant shall have to get some relaxation when the policy was continued up to date of treatment of the daughter of the complainant who was also covered by the Mediclaim Policy and so applying the principle of law as laid down in several judgement of the Hon’ble National Commission and State Commission social approach should be shown when insurance is a part of social legislation and so considering that fact and also considering other aspects we are releasing 75% of the claim and ops are bound to pay it because in respect of continuous policy for more than 4 years some relief shall be granted to the insured even if it is found that it was pre-existing disease or same are not covered by other terms of the policy.  Accordingly we are convinced to hold that when complainant spent more than Rs.1,00,000/- and sum insured is Rs.1,00,000/-.  So, the op shall have to pay 75% of sum i.e. Rs.75,000/- to the complainant after disposing of the said claim which has been wrongly repudiated by the op.  But considering the entire fact and circumstances and no doubt harassment on the part of the complainant some litigation cost is also allowed.

          Accordingly, the complaint succeeds in part.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the op nos.1 & 2.

          Op nos. 1 & 2 are hereby directed to pay Rs.75,000/- and also cost of Rs.5,000/- i.e. total Rs.80,000/- to the complainant within 45 days from the date of this order failing which for non-compliance of Forum’s order by the op nos. 1 & 2 they shall have to pay punitive damages @ Rs.200/- per day till full satisfaction of the decree and if it is collected same shall be deposited to this Forum.

          Op nos. 1 & 2 are hereby directed to comply the order very strictly indefault for penal action shall be started against them and even further penalty of Rs.10,000/- shall be assessed against them.

          In view of the above the complaint is dismissed exparte against op no.3 TPA but without any cost.