DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No.  325 /2019

Date of Filing:-                        Date of Admission:-                     Date of Disposal:-

           05.11.2019                                    22.11.2019                           06.07.2023

P R E S E N T                :-    Smt. Sukla Sengupta………….President.

     :-    Smt. Monisha Shaw..………… Member.

                                         :-   Sri.  Abhijit Basu…. …………. Member.

JUDGMENT

This complaint is filed by the Complainant U/s 12, read with the Section 13&14  of the Consumer Protection Act, 1986 (as amended up to date) alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.

The brief fact of the complaint is that the Complainant No-1 obtained mediclaim policy from the New India Assurance Company Limited and his spouse being the Complainant No. 2 since the year 13/04/2005 to till date (up to 15/04/2018 individual sum insured and from 16/04/2018 under Floater Mediclaim Schedule) and last sum insured for Rs. 2,00,000/- each under new mediclaim, 2012 schedule. Accordingly, due premium was paid and the Insurance Company issued the policy. Since then till date the Complainants are under the coverage of the said policy with the O.p. No. 1 by making payment of the due premium amount continuously and the O.P. No. 1 on each and every year issued the policy copy along with its terms and conditions in favour of the insured. So, it is clear that there is no gap regarding the policy since 2005 to 2019.

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The Complainant further stated that in the year 2014 the Complainant No. 2 was treated in the ILS Hospital due to abdominal pain and the treating doctor suggested for hernia operation when her body weight was 84 Kgs. The insurance company settled the claim of the said treatment / operation lodged by the Complainant No. 1. On 16/09/2018 due to knee problem of the Complainant No. 2 the Complainant No. 2 visited Dr. Debasish Chakraborty, at Fortis Hospital when the body weight of the patient was 80.4 Kgs i.e. it was reduced from 84 to 80.4 kgs. After examining the patient Dr. Chakraborty had prescribed for hernia operation. On verbal query the Complainant No. 1 came to know that for such surgery approximately Rs. 4,00,000/- may be incurred. Though the Complainants were under the coverage of the above mentioned mediclaim policy, the Complainant No. 1 gave a second thought for incurring such hefty amount. Accordingly, the Complainant 1 contacted with the Christian Medical College, Vellore through e-mail. The Complainant No. 1 sought for an appointment on 17/01/2019 for one specialized doctor in the said stream and the different test as per their prescription was done accordingly for which Rs. 12,620/- was incurred. After seeing the all reports the CMC, Vellore confirmed for appointment and it was fixed on 18/05/2019 before Dr. Abraham Vijay. The requisites fees for such appointment was also paid. After examining the patient / Complainant No. 1 diagnosed for hernia operation and it was told by the said doctor that during hernia operation metabolic surgery is also required due to avoid further complications. It was also told by the said doctor verbally that tour surgical interventions i.e. one for hernia and other for metabolic surgery may give relief to the patient on the ground that for metabolic surgery open of abdomen will not be needed. Not only that if two surgeries taken at a time then she may get well soon at a time for both surgeries. Therefore, from the verbal discussion of doctor Vijay it was clear to complainants that in further metabolic surgery is very much required for the control of her high sugar, pressure, triglyceride which she was suffering last about 15 years otherwise the patient cannot be well physically and mentally.

The Complainant further stated that the treating doctor of CMC, Vellore told the patient that the position of hernia is very critical and for the interest of the patient the surgery of in-seasonal hernia with Metabolic Syndrome should be done at a time to avoid the future complication of the patient. The Complainant stated that such operation (hernia and metabolic surgery) was duly informed to the insurance company and the Complainant No. 1 stated in writing to the O.Ps regarding the cost of procedure to the tune of Rs. 5,00,000/- and after some time on 18/05/2019 the Complainant went to the CMC for such operations. The Complainant also stated that the insurance company verbally stated that the insurance would not provide any amount for metabolic surgery as per policy condition, but they will get reimbursement for Hernia operation.

The Complainant further stated that as per the advice of the treating doctor of CMC, Vellore the Complainant No. 1 decided to proceed with the said two operations simultaneously though it was within his knowledge that the expenditure incurred due to metabolic surgery will not be reimbursed by the insurance company. The Complainant No. 1 got admission at the CMC, Vellore on 21/05/2019 and duly informed to insurance company as per terms and conditions and she discharged after operation on 29/05/2019. As per Complainant’s version, the Complainant paid a sum of Rs. 4,09,735/- to CMC, Vellore for treatment / surgery, the insurance company did not take any step to settle the claim after receiving the treatment paper and the insurance company issuing a letter dated 20/09/2019 and the Complainant received the letter on 16/10/2019 that the insurance company has repudiated the claim in the exclusion clause no. 4.4.6.1 of the terms and the conditions claim is not payable.

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The Complainant further stated that CMC, Vellore did not issue any bill segregating the expenditure incurred for the two surgeries they have clubbed together the entire expenditure so out of total expenditure of Rs. 4,09,735/- the Complainants are entitled to get 50% of the total expenditure and it is also stated that the Complainants are not entitled to get more than Rs. 2,00,000/- and prayed for 2,00,000/- before this Commission.

 Prayer of the Complainants:-

1. To direct the Ops to settle the Insurance claim on proportionate basis which shall not be less than Rs.2,00,000/-.
2. Give a direction upon the O.Ps to pay Rs. 2,00,000 as compensation to the Complainant on the ground of deficiency in service and unfair trade practice of Ops as the Ops have repudiate the claim in an arbitrary manner for which the Complainants are suffering from physical, mental pain and financial crisis.
3. Direction for making payment of Rs.50,000/- as litigation cost.
4. Other reliefs as deem fit.

            Having no other alternative the Complainant filed this case on 05/11/2019 before the D.C.D.R.C., Barasat, North 24 Parganas.

From the record it is evident that the O.P no.1 & 2 have filed W/V on 06/03/2021 and the case has been declared ex-parte from 13.04.2021 against the OP no.3.

In the W/V the O.P. No. 1 and 2 stated that the case is not maintainable both in law and in fact, no cause of action to file the petition under objection as against these Opposite Parties and it is purposive, harassive, motivative and also intentional. It is also stated that Forum has no pecuniary as well as territorial jurisdiction to entertain the petition of complaint. The O.Ps also stated that the insurance company boldly submits that the instant case is not maintainable and there was no negligence and deficiency in rendering service. From the documents the insurance company repudiated the claim of the Complainant justifiable as it had been observed that the Complainant no. 2 was admitted with metabolic syndrome and incision hernia recurrent and went for Laproscopy Roux en Y Gastric bypass intraperitoneal placement of mesh and the condition is a morbit obesity and the claim of the Complainant attracts exclusion clause no. 4.4, 6.1 and the case repudiated by the O.P. So, the Complainant is not a consumer and the O.Ps are not the service provider and it proven by their documentary evidence.

The O.P. No. 1 and 2 further stated that in paragraph no. 6 to 11 the Complainant No. 1 obtained mediclaim policy from the New Insurance India Assurance Company Ltd. for himself and/or his spouse being the Complainant No. 2 since the year 13/04/2005 to till date and the last sum insured for Rs. 2,00,000/- each under new mediclaim, 2012 schedule accordingly due premium was paid and the insurance company policy and/or since then till date the Complainants are under the coverage of the said policy with the OP-1 by making payment of the due premium amount continuously and/or the OP-1 on each and every year issued the policy copy. It is also admitted that there is no gap regarding the policy since 2005 to 2019 and/or in the year 2014 the Complainant no-2 was treated in the ILS Hospital due to abdominal pain and the treating Doctor suggested for Hernia Operation when her body weight was 84 kgs. And the Insurance Company settled the claim of the said treatment/operation lodge by the Complainant-1 on 16.09.2018 due to knee problem of the Complainant-2. The Complainants visited Dr. Debasis Chakravarty, at Fortis Hospital and in the mean time the body weight of the patient was 80.4 I,e it was reduced from 86.4 to 80.4 and after examining the patient Dr. Chakravarty had prescribed for Hernia Operation.

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At that time the Complainant-1 came to know that for surgery expenses will be required of  Rs.4,00,000/- . At that time the Complainant-1 contacted with the Christian Medical College, Vellore (CMC) and the Compainant-1 gave an appointment through e-mail on 17.01.2019 and the specialized Doctor prescribe for different test, after seeing the all reports the CMC, Vellore confirmed for appointment on 18.05.2019 before Dr. Abraham Vijay after examining the patient Complainant No. 2 was diagnosed for hernia operation and it was told by the said doctor that during operation metabolic surgery is also prepared due to avoid future complications.

The O.P further stated that in paragraph nos. 12 to 15 of this complaint that upon getting the permission letter the insurance company stated verbally that the Complainants shall not get any amount for metabolic surgery as per the policy condition but they will get reimbursement for hernia operation but it is clear in the terms & conditions of the policy that the expenditure incurred due to metabolic surgery will not be reimbursed. So the O.P Insurance Company respectfully submits that the Insurance Company never assured any policy holder as regards any settlement of claim which is excluding the exclusion clause and it deserved rejection.

The O.P Insurance Company also stated that the two operation was done simultaneously but it is clear that there is no nexus between the two operations and it is not mentioned in the discharge certificate by the treating Doctor and also  it is not mentioned that Metabolic Syndrome and Hernia Operation was urgently required, the treating Doctor took decision for one time operation.

As per version of the O.P the Complainant cannot produced the originals the entire treatment related paper at the time of final Argument. The Insurance Company is governed by the stipulated law and Exclusion Clause which is nothing but a valid contract, so it is liable to be rejected. It is also stated that there is no cause of action and it should be rejected. The instant case should be dismissed as the Complainant is failed to neglected to give intimation within stipulated period and the Complainant violated the terms and conditions of the policy and the Complainant failed to establish the deficiency in service on the part of the O.Ps and the complaint should be dismissal.

The Ops prayed for the petition of complaint is liable to be dismissed in limini.

 Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?

2. Whether the Complainant is entitled to get relief / reliefs in this case.

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of the materials along with the supporting affidavit related to documents available in the case record as well as hearing of  argument by the Ld. Advocate for the Complainant and also Ld Advocate for the Ops. We have perused the petition of complaint as well as Examination-in-Chief on affidavit filed by the Complainant and also filed by Ops. We have perused the copy of which was provided by the O.Ps with the supporting affidavit and other documents filed by the Complainant and also filed by the Ops.

After careful scrutiny of the petition of complaint, written version filed by the present O.Ps as well as the documents, which are relied upon, it is drawn in our view that the instant case is a case of insurance and the present Complainant is seeking medi claim

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and here from the petition of complaint it is revealed that as per advice of Doctor CMC Vellor, the wife of the Complainant went for surgery of incision hernia with metabolic surgery. In this context the Complainant herein in his complaint stated that information for such operation i,e along with metabolic surgery was duly informed to the insurance Company but in through scanning of all the documents filed by the Complainant no such document is found by this Commission though in his complaint the Complainant herein admitted the fact that “It was within his knowledge that the expenditure incurred due to metabolic surgery will not be reimbursed by the Insurance Company”. So there is ambiguity of the complaint wherein parties to the case are binding upon a specific contract wherein in every policy basis some terms and condition as well as exclusion clauses are there and the Ld. Commission constructing the terms of the policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties.

In this matter from the policy in question it is revealed that in the particular dispute the claim of the complaint attracts exclusion clause 4.4, 6.1 as from the document more specifically from the medical papers it is observed that the Complainant No.2 was admitted in the hospital with metabolic syndrome and incision hernia recurrent, underwent laparoscopic Roux-en Y gastric bypass with intra peritoneal placement of mesh and from the above observation of the hospital is clear suggest that the patient, the Complainant – 2 was suffering from morbid obesity and as a result in our view we are unable to accept the contention of the Complainant based on the material on record and so we do find any merit of the instant complaint as and when the op Insurance Company rightly repudiated the claim and therefore we have no hesitation to dismiss the case with no order as to cost. 

Thus all the points are disposed of accordingly.

            Under such circumstances, this commission is of view that the complainant could not be able to prove his case and is not entitled to get the relief as prayed for.

So, he is not entitled to get any relief because he is failed to prove the deficiency in service on the part of the opposite party.

Hence,

it is ordered,

            That the case being no. CC 325/2019 be and the same is dismissed against the opposite parties without any cost.

            Let plain copy of this order be given to the parties free of cost as per CPR, 2005.

       Member                                           Member                                        President