Smt. Sangita Paul, Member
This is a case was filed by Radha Rani Patra, W/o. Pukak Patra of Fartabad, Sahapara, Garia, Kolkata-700 084 against the Oriental Insurance Company Ltd. Company Ltd., with a prayer for a direction upon the OP to refund the amount paid by the complainant to the tune of Rs.69,599/- and to pay compensation to the tune of Rs.25,000/- and the litigation cost of Rs.5,000/- to the complainant.
OP is Oriental Insurance Company Limited. The address is P-4, Dobson Lane (4th Floor), Howrah – 711 101.
The complainant, by filing this case states that the complainant took a Mediclaim Policy from Oriental Bank. It was a Mediclaim Policy being No:311700/48/2018, the sum assured being Rs.1,00,000/-.
During the coverage period, the complainant was suffering from ovarian cyst. She has been suffering from the disease, for a long period of time. On 28th December, 2018, the complainant was admitted to MFC Woman & Childcare. The above mentioned Nursing Home was situated at Bally, Howrah – 711 201. She was admitted under Dr. Shiuli Mukherjee with severe pain from ovarian cyst.
After treatment of ovarian cystectomy the patient was discharged. The complainant was released on 30.12.2018. The bill amount was Rs.69,509/-. The OP sent a letter to the complainant on 09.04.2019. The treatment was done for infertility. Hence the claim is not admissible.
By that time, the complainant came to know that there was no connection between infertility – treatment and treatment of ovarian cyst. In this connection, the complainant sent a letter to the OP on 29.04.2019. The complainant states that there was no infertility treatment, only ovarian cyst was being operated.
Again the complainant sent the another letter on 18.07.2019. OP informed the matter of the complainant to the panel doctor of the OP, Sovan Ghosh. OP mentioned that there was no symptom of ovarian cyst. So the claim is not admissible. The complainant also sent another letter to 21.08.2019. The complainant stated that there was a long treatment of ovarian cyst from November, 2017 to December, 2018. There was no positive feed back from the OP from August, 2019 to November, 2020.
The complainant is suffering a lot for whimsical act of the OP in repudiating the genuine claim of the complainant. The cause of action starts from 28.12.2018.
Hence the complainant prays for a direction upon the OP to pay the medical expense of the OP to the tune of Rs.59,599/- and to pay compensation to the tune of Rs.25,000/- for the mental agony and harassment caused to him and to pay a litigation cost of Rs.5,000/-.
In the written version, the OP states that the petition is not maintainable in its present form and as such the instant case is liable to be rejected.
There is no deficiency in service adopted by the OP. The complainant has suppressed the fact that she was trying for second baby from 2016. It is clearly mentioned in the Doctor’s prescription dated 20.01.2018. The complainant went to Mukherjee Fertility Centre, Bally, Howrah.
The OP states that the OP has already scrutinized the claim of the complainant and found it not fit for payment under Policy terms and conditions as stated in the repudiation – letter. The reason for repudiating the claim of the complainant was policy exclusion clause the Doctor Soven Ghosh has not given opinion in the complainant’s favour. Both the complainant and the OP are bound to obey the rules and regulations of the policy. Because insurance policy is a matter of contract between the insurer and the insured.
The complainant has not made Mukherjee Fertility Centre, Women and Child Care, a party to the instant case as Mukherjee Fertility Centre is a necessary party in the instant case.
The OP states that the repudiation is lawful as far as terms and conditions of the insurance policy are concerned. Dr. Soven Ghosh who was appointed by the insurance company stated that it was no a cause of ovarian cyst. It is nothing but secondary infertility only.
The complainant is not entitled to her prayer in the said petition and she is not entitled to get any cost / compensation on account of physical and mental agony and harassment as prayed for, as there is no deficiency in service on the part of the OP who acted in accordance with law.
The OP prays for dismissal of the complaint.
That the case was filed on 24.12.2020/. The case was admitted on 19.01.2021. On 26.02.2021, Ld. Lawyer of the OP undertook to file power/. On 31.03.2021, no W/V was filed by the OP. Hence the case proceeded ex-parte against the OP. On 11.08.2021, the OP files a petition along with W/V and Vakalatnama praying for vacating the ex-parte order passed on 31.03.2021. Copy was served to the other side. Considering the pandemic situation, the prayer of the OP is allowed. The order of ex-parte hearing was vacated. On 03.11.2021, the OP filed some documents without serving copy to the complainant. On 27.12.2021, the OP files track report showing service of documents upon the complainant. The complainant files evidence on affidavit. Copy served. On 03.02.2022, the OP files questionnaire with copy. On 15.03.2022, the complainant takes copy of the questionnaire filed by the OP from record. On 19.04.2022, reply to the questionnaire has been filed by the complainant. Copy served. On 25.05.2022, the OP files evidence on affidavit. Copy served. On 22.06.2022, the complainant was absent on call. She was directed to show cause as to why the case shall not be dismissed for non-prosecution. On 04.08.2022, the representative of the complainant filed show cause. The show cause petition was considered and allowed. On 12.09.2022, the complainant files questionnaire,. Copy served. On 16.01.2023, the complainant files reply. Copy served. On 06.03.2023, the complainant filed BNA. OP also filed BNA. On 06.04.2023, argument of both the parties was heard in full at length. Accordingly, we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Is the OP guilty of deficiency in service and unfair trade practice?
- Is the OP entitled to get relief as prayed for?
Decisions with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the complainant, along with her husband and daughter took a Mediclaim Policy from the OP, Oriental Insurance Company Limited. The sum assured of the policy was Rs.1,00,000/-. It is valid from 29.12.2017 to 28.12.2018. The complainant had to pay a premium of Rs.1,837/-. As the complainant pays premium for the Mediclaim Policy, it appears that she is a consumer U/S 2(7) of the C P Act, 2019. So the first point is decided in favour of the complainant.
Point No:2 :
The complainant was suffering from a female disease. As per medical report, after trans-vaginal ultrasonography, it appears that uterus is normal in size. Both ovaries are polycystic. Left ovary contains a chocolate cyst measuring 32X35. It is the report dated 11.11.2017. Her cyst was to be operated. On 05.05.2018, the size of the cyst became bigger. As per medical report, the size of the chocolate cyst was increased to 57X67 mm. On the successive dates i.e. on 16.11.2018 and 22.12.2018, the size of the cyst was becoming larger. POD was thickened. The Doctor prescribed for operation. All the necessaries were made before operation. Ovarian cystectomy was done and the patient was discharged on 10.12.2018. The OP repudiated the claim 09.04.9 claiming that the treatment of infertility is not covered by the OP’s Mediclaim Policy. It is pertinent to mention that the operation was essential for saving the life of the complainant / patient. Ovarian cystectomy is covered by the Mediclaim Policy of the OP. The OP is reluctant to entertain the claim of the complainant. As per medical report, it is a legitimate claim. It is due to deficiency in service and unfair trade practice adopted by the OP that the complainant is not getting the claim. Hence, the second point is decided in favour of the complainant and against the OP.
Point No.03 :-
The OP through a letter dated 09.04.2019, repudiated the claim of the complainant on the ground that she was trying for her second baby upon physical tests and examinations, it was revealed that she had an ovarian cyst. Not only that the ovaries are polycystic. The Doctors prescribed for an operation for removing the cyst. The operation was mandatory. If the cysts were not being operated, it might prove fatal. Hence the doctors operated the cyst for saving the life of the patient. The complainant claimed for that. The OP repudiated the complainant’s claim. Hence the complainant spends time in mental agony. She was harassed by the OP. It appears that the complainant is entitled to get relief as prayed for. Hence, the third point is decided in favour of the complainant and against the OP.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed on contest against the OP with cost of Rs.5,000/- (Rupees ten thousand).
That the OP is directed to refund Rs.69,599/- with 9% interest w.e.f. 28.12.2018 till realization within 45 days from the date of this order.
That the OP is directed to pay compensation to the tune of Rs.25,000/- to the complainant within 45 days from the date of this order for harassment, mental pain and agony suffered by the complainant.
That the litigation cost of Rs.5,000/- is to be paid within the stipulated period of 45 days.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 45 days from the date of this order.
Let a copy of this order be supplied to the parties concerned free of cost.
That the final order will be available in the following website: www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
