The case of the complainant in brief is that O.P. No.1 is a registered company have been discharging their function in the field of insurance and extended the policies to the public at large covering different type of risk including medical treatment risk and the O.P. No.2 is the TPA of O.P. No.1 who are in charge for medical treatment analysis and settlement of claim under the policies for and on behalf of the O.P. No.1.
The wife of the complainant obtained a hospitalization and domiciliary hospitalization benefit policy, individual mediclaim policy from the O.P. No.1 to cover the risk for herself. The policy being No.153600/48/13/8565000168. The wife of the complainant have been covered under mediclaim policy since 23.09.2011 and the present policy where claim is made was commence from 23.09.2013 with some insured of Rs.5,00,000/- + Rs.10,000/- and every year she renewed the policy. Unfortunately the wife of the complainant died on 11.01.2015 during the period of her treatment.
On various occasion the wife of the petitioner admitted in various clinic for getting dialysis as she was patient of kidney defunct. On 8.5.2014 to 5.6.2014 on various dates she was admitted in Dishari in dialysis unit at Khalisani Bramhanpara, Chandannagore for getting dialysis. The medical expenses bill collectively during that period submitted by the petition Rs.35,000/- to the O.P. No.1.
That the condition of the health and kidney is deteriorating gradually for which she was
taken to the R.N. Tagore Hospital and the hospital authority advised the petitioner to replace the kidney and continue her dialysis. Then the wife of the petitioner started to get her dialysis from said hospital since from 4.7.2014 to 13.10.2014. The medical expenses bill during period submitted collectively by the petitioner Rs.24,200/- to the O.P. No.1.
It is to be mentioned here that the present claim of the petitioner is part claim as on earlier occasion prior to the death of the wife of the complainant a case being No.CC 17/2014 was filed before the Ld. Forum and Ld. Forum was pleased to direct the O.P. No.1 to pay Rs.1,15,253.99/- and accordingly the O.P. No.1 paid the entire amount.
That when the earlier claim was made by the wife Lipi Mondal(Ganguly) these bills were misplaced and the petitioner was totally break down due to continuous medical treatment and subsequently the death of his wife. When these bills are found the petitioner submitted his claim for medical expenses of his wife. On 2.1.2017 the petitioner submitted his claim to the Office of the O.P. No.1. After elapse of three month no reply from the O.P. No.1 forthcoming. At last on 3.4.2017 the petitioner sent a legal notice which is received by both the O.Ps. but they bothered to reply or release the claim of the petitioner.
The O.Ps. neither repudiated the claim of the petitioner nor made any payment of the medical bills of the petitioner. Finding no other alternative the complainant has compelled to file this case before this Forum for relief with a direction to the O.Ps. to pay Rs.59,200/- regarding medical expenses of the petitioner and to pay compensation of Rs.30,000/- along with litigation cost of Rs.20,000/-.
The O.P. No.1 contested this case by filing written version denying inter-alia all the material allegations as leveled against them. The O.P. No.1 stated that bills upon which the present claim is raised were misplaced and those were found after the death of Lipi Mondal (Ganguly), it is not true. Reference may be had to the conditions of the mediclaim insurance policy where it has been categorically stipulated that the claim along with hospital receipts and original bills/cash memos/reports, claim form and list of documents as stated in clause No.10 of the said condition should be submitted to the company/TPA within 30 days from the date of discharge from the hospital. Here in this case the complainant’s claim is for the expenses incurred for dialysis when the patient got admitted in hospital for said dialysis from 8.5.2014 to 13.10.2014 under the policy which was valid upto 22.9.2014. Now for the claim of expenditure of dialysis upto 22.9.2014 had been lodged on 2.1.2017 which is not permissible under the specific stipulation as stipulated in clause No.10 of the condition of the mediclaim policy and even if such a claim was lodged on 2.1.2017 as that was long after 2014 the same was not maintainable and the company had no obligation to respond to the legal notice dated 3.4.2017. As the claim is not maintainable the complainant is not entitled to get any amount either for medical expenses or any compensation or cost whatsoever. Hence, the O.P. prayed for dismissal of the case.
Both the parties have filed evidence on affidavit, which is nothing but the replica of complaint petition and written version. 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 Raj Ganguly is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency in service on the part of the O.Ps.?
4. Whether the complainant is entitled to get any relief as prayed for ?
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 Raj Ganguly is ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant being beneficiary is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The wife of the complainant herein is the customer of the OP No.1, Insurance Company and OP No.2 is the TPAthey are the service provider, so beingconsumer he is entitled to get service from the OP No.1&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 opposite parties to pay the balance of mediclaim of Rs.59,200/- including interest to the complainant, compensation against the OP of Rs.30,000/- for mentalagony and harassment and litigation cost 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 Complainant?
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of 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 complainant took mediclaim policy in the name of his wife 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 on 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 complainant is that his wife was maintaining a mediclaim policy before the OP No.1 and she was a kidney patient had to undergo dialysis in different hospitals and during the policy period on various dates was admitted in dialysis unit of DISHARI at Chandannagore for getting dialysis. As a result a medical expenses occurred amounting to Rs.35,000/-. Thereafter the health condition of her wife deteriorated as a result she compelled to start dialysis before Rabindranath Tagore Hospital since 04.07.2014 to 13.10.2014 and a sum of Rs.24,200/- expensed for the same. This claim is a part claim as he already received a claim from the OP No.1 by filing a C.C. case being No.17/2014 before this Forum and after the death of his wife he got these bills which were misplaced and subsequently filed another claim before the OP No.1 amounting to Rs.59,200/- which has not been settled by the OP as a result he compelled to take the recourse of this Forum praying directions upon the OP. The OP contesting the case by filing the written version and affidavit in chief denying the claim raised on the basis of bills which were misplaced and found subsequently after the death of policyholder.The OP No.1 referred the clause10 of the mediclaim insurance policy wherein it is categorically stated that the claim along with hospital receipts and original bills / cash memos/ reports, claim form and list of documents should be submitted to the Company / TPA within 30 days from the date of discharge from the Hospital. The case in hand in which claim for dialysis from 08.05.2014 to 13.10.2014 under the policy which was valid upto 22.09.2014and claim has been lodged on 02.01.2017 which is not permissible under clause 10 of the condition of themediclaim policy.
Dispute in question is that the complainant filed the claim after elapsing more than 2 yrs. Although the clause 10 of the policy specifically stated that the claim form and list of documents should be submitted to the Company / TPA within 30 days from the date of discharge from the Hospital. So it is violation of terms and conditions for which the OP did not settle the claim banking upon the clause 10 of the policy. Complainant in his complaint petition as well evidence assailed that he did not file those bills of expenditure within time limit as the same was misplaced. After the death of his wife he was bereaved and also perplexed so he failed to submit claim Form within the time framed. The complainant relied the clause Waiver in the policy, in which it is stated that time limit for claim intimation and submission of documents may be waived in case where it is proved to the satisfaction of the Company, that the circumstances under which insured person was placed, it was not possible to intimate the claim/submit the documents within the prescribed time limit. He also assailed the provision of 5.5.5 of the policy in which the claim settlement is described and raised his objection regarding the non settlement of his valid claim. The OP did not assail the entitlement of the complainant only he tried to attract the clause 10 of the policy regarding the time period of submission of claim. It has been provided in the preamble of the Consumer Protection Act, 1986 as well that the objective of enacting the said legislation is to ensure better protection of the interests of the consumers. Once it is proved from the face of the case record as well as from the iota of evidence that the complainant did not receive the money which he expensed during his/her treatment from the insurer then he deserves to be given the compensation, keeping in view the facts & circumstances of the case.
Considering all the facts and circumstances we may hold that the complaint petition deserves to be allowed.
From the above discussion we can safely conclude that the complainant proved his case by producing sufficient documents.
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 insurance company is liable to pay the amount expensed for the treatment of her wife along with interest.
ORDER
Hence, it is ordered that the complaint case being No.140 of 2017 be and the same is allowed on contest against the Opposite Party No.1 with a litigation cost of Rs.5,000/-.
The Opposite Party No.1 is directed to pay a sum of Rs.59,200/- along with interest @8% p.a. since the date of filing the complaint petition to this complainant.
All the payments are to be made within 45 days from the date of this order.
At the event of failure to comply with the order the Opposite Party No.1 shall pay cost @ Rs.50/- 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.
