Order No. -11                                                                                  Dt.-30/11/2015

Shri Asoke Kumar Das,President

F  I  N  A  L   O  R  D  E  R

Complainant’s case in a nut sell is that he purchased Oriental Bank Mediclaim Policy bearing no.311700/48/2014/3608 from the OP1, the Oriental Insurance Com. Ltd. on payment of requisite premium of Rs.6,830/- for a total sum assured of Rs.5,00,000/-. That policy was vaild from 01/10/’13 to 30/09/’14. On 04/06/14 the complainant fell in ill and was admitted in Heritage Hospital, Siliguri, Darjeeling under the supervision of Dr.S.K.Choudhary who diagnosed the disease as severe Iron deficiency Anemia. The complainant has duly communicated about his said ailment and hospitalisation to OP1 on 05/06/’14. On 06/06/’14 the complainant was discharged from the said hospital and he had to incurr Rs.17,725/- towards expenses of his medical treatment hospitalisation etc. On 12/06/’14 the complainant sent one letter together with filled up claim form and relevant papers to OP requesting sanction and disbursement of his said claim at an earliest. But the OPs have not settled the claim of the complainant on various pretext and their-by the OPs are liable for deficiency in service and / or unfair trade practice. Hence, this case.

The Op Oriental Insurance Com. Ltd. has registered this case by filing a W/V denying and disputing interalia the claim and contention of the complainant with prayer for dismissal of this case with cost.

Their specific stand is that the TPA(OP2) after receiving the claim papers/documents from the complainant observed that the subject claim has been preferred in the 3^rd year of the policy which has become effective since 01/11/’11. As per terms & conditions of the policy any pre-existing disease(treated/untreated, declare/notdeclare in the proposal form) when the cover incepts for the first time are excluded upto 4 completed years of policy being in force continuously. So, to ascertain the exact duration of HTM ailment of the complainant they requested the complainant to submit some additional documents viz all past prescriptions, treatment details related to present diagnoses and histry of hypertension/Anemia(since when) certified by the treating doctor. But as the complainant couldn’t submit those additional documents they couldn’t settle his claim.  

POINTS FOR CONSIDERATION

1. Is the case maintainable both law and fact?
2. Is the complainant a consumer?
3. Are the OPs guilty for deficiency in service and/or unfair trade practice as alleged?
4. Is the complainant entitled to get the reliefs as prayed for?

DECISION WITH REASONS

All points are taken up together for consideration and decision.

Seen and perused the petition of the complaint, the W/V(both are supported by affidavits), the Written Arguments and the documents filed by both the parties. Also perused the case law referred by the Ld lawyer for the Op reported in 1(2015)CPJ 497(NC) and the case law referred by the Ld lawyer for the complainant reported in 1(2002)CPJ 23(NC), 1(2006)CPJ 29(NC)& III(2012)CPJ 208(NC). We have also heard arguments of Ld lawyer of both sides in full.

Now after due consideration of arguments of Ld lawyers and the aforesaid materials, we find that admittedly complainant purchased a Mediclaim Policy from OP1 and that was valid from 01/10/’13 to 30/09/’14. The complainant was admitted at a Heritage Hospital on 04/06/’14 for his ailment and he was released there-form on 05/06/’14. He has reported regarding his ailment and hospitalisation and also sent a letter alongwith duly filled up Claim Form and relevant documents to OPs for settlement of his claim Rs.17,725/-. But Ops have not settled his claim for various plea as alleged by the complainant on 12/06/’14. It is also clear from the submission of the Ld lawyer of both sides and the materials on record that complainant has paid the premium of his said Mediclaim Policy through his Bank at Jalpaiguri. In this view of the matter, we find and hold that the complainant is a consumer, and that this Forum has pecuniary as well as territorial jurisdiction to here and to disposeof this case and that case is well maintainable.

Admittedly complainant had to incurr Rs17,725/- towards expenditure of his treatment, hospitalisation etc. Admittedly he intimated about his ailment & hospitalisation to Op on the next date of his admission in the hospital. Admittedly the OPs have received complainant’s letter dt.12/06/’14 together with his duly filled up Claim Form and relevant documents. But the facts remains that the OPs neither settled such claim of the complainant nor repudiated the same despite complainant’s requests. At the time of argument Ld lawyer for the OPs argued that as the complainant submitted his claim in the 3^rd year of policy they couldn’t settle the claim as per terms&conditions of the policy and that any pre-existing disease when the cover incepts for the first time are excluded upto 4 completed years of policy being inforce continuously as per of the policy and to know the exact HTN ailment of the complainant the TPA(OP2) asked the complainant to submit some additional documents but as the complainant didn’t submit those additional documents the OP couldn’t settle his claim. Ld lawyer also invited Forum’s attention to point no.4.1 of the terms&conditions of the policy. In reply Ld lawyer for the complainant argued that the complainant has sent his prescriptions,Hospital’s Discharge Certificate, vouchers and all other relevant papers in original to OPs alongwith his letter dt.12/06/’14 and that OPs have also admitted that facts and that complainant had no passed prescription treatment details relating to his present ailment and that hyper tension is not as disease and it depends upon the situation and it is not related with Anemia. So, how can the complainant submit the additional documents as per request of OP(2) T.P.A.?

Now after due consideration of above arguments of Ld lawyers of both sides, we find that the Mediclaim Policy of the complainant has become effective since 01/12/’11. In that case if the present ailment of the complainant was pre-existing then the Op should note about the alleged pre-existing ailment of the complainant at the time of issue of Mediclaim Policy infavour of the complainant on 01/12/’11. It is not the case at OP that the complainant ever submitted any application for settlement of his claim for his alleged pre-existing ailment since 01/11/’11. Furthermore the burden/onus is on OP to prove that ailment of complainant was pre-existing and OP could not discharge such of their onus. That apart the OPs could settle the claim of the complainant as per provision of point no 3.16 &3.17 of the terms&conditions of the policy considering the ailment of the complainant as “fresh illness”. But that was not done by the OPs. Rather they tried to delay the settlement of the claim of the complainant for indefinite period on the plea that the complainant has not submitted additional documents/information. The case law referred to above by Ld lawyer for the OP is not in line with our present case and as such this case law can in no way help the OP. In our considered opinion the aforsaid acts of Ops certainly come with in the per view of deficiency in service and / or unfair trade practice as alleged. Therefore the complainant is entitled to the reliefs specified below.

All points are disposed off.

In the result the case succeeds.

Hence, it is           

ORDERED

That the case /application is allowed on contest in part with litigation cost of Rs.2,000/-(Rupees Two thousand)only.

The complainant do get an award of Rs.17,725/-(Rupees Seventeen Thousand Seven Hundred and Twenty Five) against the OPs.

The complainant do get further awarded of Rs.5,000/-(Rupees Five Thousand)only against the OPs in the head of deficiency in service and/or unfair trade practice, harassment and mental pain and agony of the complainant.

The OPs are jointly and severally liable to pay the aforesaid litigation cost of Rs.2,000/-(Rupees Two thousand)only and the awarded sum of Rs.22,725/-(Rupees Twenty Two Thousand Seven Hundred and Twenty Five) in total to the complainant with-in 30 days from the date hereof failing which it will bear interest @8% P.A. till realisation and the complainant shall be at libarty to put this order into Execution in accordance with law.   

                         Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgement/sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.