FINAL ORDER / JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The petition of complaint has been filed by the complainant U/S 35 of The C.P. Act, 2019 along with a petition U/S 34(2)(b) as the OPs- 1 and 2 are carrying their business outside the territorial jurisdiction of this Commission. The petition was allowed by this Commission. Hence, the case has been entertained by the Commission for final disposal.
The fact of the case in brief is that the complainant No-1 is the proposer of the mediclaim policy being No. 101 901 501910004149 from the OPs insurance company for the benefit of reimbursement of the cost of treatment of hospitalisation and domiciliary treatment covering herself, complainant No.-2 is the son of the complainant no.-1. The complainant No-1 proposer and the patient i.e. the complainant no.2, who undergone treatment at the Paramount nurshing home and reimbursement of the present claim filed by the complainant No-1 with the OPs insurance co.
It is further stated by the complainants that the OPs-1 and 2 are the insurance company who provide services to the consumers/proposers upon payment of stipulated premium. The OP-3 is the T.P.A. who according to the OPs insurance company, approved the claim lodged by the proposer.
It is further stated that initially in the year 2002 a mediclaim policy was issued by the OPs-1 and 2 in the name of Mr. Debasis Mitra, the husband of the complainant no-1 covering the insured persons namely (i) Debasis Mitra (himself) (ii) Mrs. Bharati Mitra, Wife (complainant no.-1) (iii) Miss Indrani Mitra (Daughter) (iv) Indrashis Mitra (complainant no.-2) upon acknowledging the yearly premium. The photocopy of the same is annexed (Annexure-A) with the petition of complaint. The complainant further stated that the said policy was renewed in every year on payment of yearly premium and gradually enhanced the sum insured for all beneficiaries. Lastly renewed being the policy No. 101901501910004149 effective from 08.08.2019 to 07.08.2020 upon payment of yearly premium of Rs.16,226/- and sum insured of Rs.2,00,000/- each for Debasis Mitra and Bharati Mitra (complainant no.-1) and Rs.1,50,000/- each for Miss. Indrani Mitra (Daughter) and Indrashis Mitra (complainant no.-2).
It is further stated by the complainants in the petition of complaint that in the meantime due to some administrative reasons, best known by the OPs-1 and 2 the name of the proposer was recorded as Bharati Mitra in place of Debasis Mitra covering sum insured for him, her husband, daughter and also son as mentioned above, without changing the nature and character of the policy.
It is the further case of the OPs-1 and 2 that initially issued the policy bond in the year 2002 and subsequently renewal of the policy issued acknowledgement of premium receipt without issuing policy bond afresh. The photocopy of the initial policy bond has annexed as Annexure-C. It is further stated that after continuation of the said policy for long 18 years, all on a sudden Indrashis Mitra i.e. the complainant No.2 and one of the insured covered under the policy fallen ill in the month of December 2019 by suffering pain in nail. Since the pain became unbearable, he consulted Dr. Anjan Dasgupta a surgeon on 17.12.2019 who after observing and clinical check up opined that “L-grow Too, - underlying abscess” and prescribed several medicines. On 20.12.2019 due to severe pain the patient again visited the doctor who after clinical observation suggested urgent operation for damage of nail bed abscess etc. and advised for admission in nurshing home. Accordingly on the very next date i.e. 21.12.2019 the patient was admitted in paramount nurshing home and operation was done under general anaesthesia by the same Dr. Anjan Dasupta.
Thereafter on 22.12.219 the patient was discharged from the nurshing home with specific advice. Discharge certificate was issued by the paramount nurshing home which is annexed as Annexure-D. Even after discharge from nurshing home the patient visited to the Doctor on 24.12.2019, 27.12.2019 and 30.12.2019 following the advice of the treating doctor. All the prescriptions are annexed as Annexure –E.
It is the case of the complainant that a sum of Rs.40,507/- has been paid by the proposer for treatment of the complainant No.2 to the nurshing home and the sum of Rs.6,349/- and Rs.4,531/- spent towards pre and post hospitalisation treatment. In total a sum of Rs.51,387/- for expenditure has been incurred towards treatment. On 10.01.2020 the complainant no.1 placed the claim of Rs.51,387/- together with all bills, vouchers, prescription etc. before the OP-1 insurance company for reimbursement of the cost of the treatment for the patient which was duly acknowledged by the OP-1 under seal and signature which has come into evidence as Annexure-F to F5. But the OPs repudiated the claim vide letter dated 22.01.2020 stating that as per Clause 4.18 of the policy as OPD basis treatment turned in IPD and circustacially the OPs repudiated the claim which is annexed herewith as Annexure-G. The complainants visited the attending Doctor and referred the letter dated 22.01.2020 then the doctor advised by strongly opposing the vague observation of the OP-3 and he made a written certificate explaining variety of his decision of operation which is annexed as Annexure-H. Thereafter the complainant vide letter dated 17.02.2020 along with the certificate issued by the attending doctor requested the OPs/insurance company to accord the sanction the claim but the insurance company again repudiated the claim of the complainant. Lastly on 19.09.2020 the complainants served a legal notice to the OPs to consider the claim but in vain, which caused harassment mental pain and agony to the complainants because the OPs arbitrarily denying the legitimate claim of the complainant hence, the case is filed by the complainant with a prayer to give direction to the OPs to pay the amount of Rs.51,387/- to the complainants along with compensation of Rs.40,000/- together with litigation cost of Rs.25,000/- in total a sum of Rs.1,16,387/-.
The OPs-1 and 2 have contested the case by filing a WV denying all the material allegations levelled against them. It is the case of the OPs that the present case is harrassive one and the complainants have no cause of action to file the same. It is stated by the OPs that the complainant no.2 Indrashis Mitra was diagnosed with grown toe nail abcess on 17.12.2019 and was advised to be admitted in the paramount nursing home where the treating doctor was attached and the operation was done with general anaesthesia and the patient stayed overnight in the said nurshing home. It is stated by the OPs-1 and 2 that the patient undergone OPD based treatment and did not require overnight stay for hospitalization unless extent emergency due to any shortcoming operation procedure and the patient did not report to have suffering any pre existing aliments for which overnight stay was needed in nurshing home for observation and there is no note of mandatory pre anaesthetic check up before administration of general anaesthesia on the patient and the nature of operation usually performed under local anaesthesia and not under general anaesthesia so they have rightly repudiate the claim of the complainants vide letter 22.01.2020 under 4.18 of Execution Clause. The Complainants again placed the claim on 17.02.2020 annexing the certificate of attending doctor which was also turned out by the OPs vide letter dated 05.03.2020 as per OPs case the complainants have no cause of action to file the case therefore the question of giving compensation and any tentative cop of proceeding does not arise at all and the petition of complaint is liable to be dismissed with exemplary cost.
The OP-3 did not contest the case. Hence, the case do run ex parte against the OP-3 vide order no. 7 dated 29.01.2021.
In view of above facts and circumstances, it has to be decided by the Commission:-
- Whether the case is maintainable as per law?
- Have the complainants any cause of action to file the case.
- Are the complainants consumer?
- Are the OPs service provider, if so, is there any deficiency in service on their part?
- Are the complainants entitled to get relief as prayed for?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of the materials as well as evidence on record it appears that the case is well within the pecuniary as well as territorial jurisdiction of this Commission.
It is the case of the complainants that she initially in the year 2002 he purchased a mediclaim policy for her husband Debasis Mitra and continued the same on payment of the yearly premium regularly. Subsequently, all on a sudden due to some administrative reason the Ops insurance company recorded the name of the complainant in the place of her husband as policy holder no.-1 but the nature and character of the policy remained unchanged. The present complainants i.e. complainant no.-1 and complainant no.-2 paid premium as proposer for the period of 08.08.2019 to 07.08.2020 of Rs.16,226/- only covering the sum assured of Rs.2,00,000/- each for the complainant no.1, and her husband Debasis Mitra and Rs.1,50,000/- each for her daughter Indrani Mitra and her son i.e. complainants no.2 Indrashis Mitra.
From the evidence of the complainants it is evident that in the month of December, 2019 the complainant No.-2 Indrashis Mitra was suffering from serious pain in his nail for which he consulted one Dr. Anjan Dasgupta a qualified consultant surgeon and after clinical check up the Dr. observed that the complainants no.2 was suffered from “L-grow Too, - underlying abscess” and he prescribed several medicines but ultimately on 21.102.2019 he was admitted in the paramount nurshing home as per Dr.’s advice and on the same the nail was operated by the attending doctor under general anaesthesia. He was discharged on the very next dated i.e. on 22.12.2019. At the post operative stage the complainant no.2 visited the attending doctor on several occasions a sum of Rs.51,387/- in total was spent for the treatment, operation and nurshing home charge for the complainant no.2 . Then on 10.08.2020 the complainant no.1 being proposer of the policy in question submitted the claim in the prescribed format along with all original invoices to the OP-1 for reimbursement of the cost of the treatment but on 22.01.2020 the OP-1 insurance company repudiated the claim of the proposer as per recommendation of the OP-3 i.e. TPA Heritage Health Pvt. Ltd. under clause 4.18 of the policy as “OPD basis treatment turned to IAD”. thereafter from the evidence on record it is revealed that on 13.02.2020 the attending Doctor issued a certificate explaining the circumstances advising for admission in the hospital and for immediate operation which was informed to the OP-1 insurance company vide letter dated 17.02.2023 and 05.03.2020 with a prayer to review or reconsider the matter but in vain. Then the legal notice dated 19.09.2020 but the OPs insurance company did not response the same hence the case is / was filed by the complainants on 13.10.2020 which is well within the period of limitation and from which it is revealed that there is / was sufficient cause of action for the complainant to file this case.
From the WV as filed by the OPs-1 and 2 and from the evidence on record as filed by both the parties in this case as well from their written argument as well as oral argument it is palpably clear that admittedly the complainants purchased the mediclaim policy being No. 101 901 501910004149 from the OPs insurance company for the benefit of reimbursement of the cost of treatment of hospitalisation and domiciliary treatment covering herself, her husband, her son and daughter. So it is clear that complainants got the mediclaim policy from the OP insurance company since long back and it was renewed by the OP insurance company on so many times on payment of required premium which is also admitted by the OP insurance company. Since then the complainant is a consumer under the OP insurance company and the OP insurance company is the service provider.
In view of the discussions made above, it is proved that the consumer and service provider relation in between the complainants and OP insurance company is established beyond all reasonable doubt.
From the WV and written argument of the contending OPs it appears that admittedly the complainant no.2 was suffering from nail pain and he visited the attending surgeon who advised him for operation of his “L-grow Too, - underlying abscess”. The operation was done by the attending surgeon under general anaesthesia and thereafter he was discharged from the nurshing home on 22.12.2019.
It is case of the complainants that a sum of Rs.51,387/- has been spent for the operation and treatment of the complainant no.2 and then on 10.01.2020 the complainant no.1 placed the claim before the OP insurance company for his policy bearing No. 101 901 501910004149 which was effective from 08.08.2019 to 07.08.2020 on payment of yearly premium of the Rs.16,226/- and sum assured was Rs.2,00,000/- each for the complainant no.1 and her husband and Rs.1,50,000/- for the Indrashis Mitra (complainant no.2) and her daughter Indrani Mitra (Annexure –B). Initially in such the proposer was the husband of the complainant i.e. Debasis Mitra (Annexure-C) and subsequently the Insurance company at his own accord placed the name of the complainant as proposer instead of her husband Debasis Mitra (Annexure-A & C). Photocopies of the Acknowledged receipt of the premiums paid by the complainant has come in evidence as Annexure-B
It is alleged by the complainants that in spite of submitting the claim along with all required documents (Annexure F to F5) the OP-1 insurance company vide its letter dated 22.01.2020 repudiated the claim as per recommendation of the OP-3 TPA Heritage Health PVT. Ltd. (Annexure-G).
It is the claim of the OP insurance company that the Operation and treatment could be done in OPD instead of being an inbed patient again it could be done under local anaesthesia instead of general anaesthesia. In spite of consulting the discharge summery issued by the nurshing home authority and also certificate of the attending surgeon the OP insurance company has repudiated the claim.
In view of the Commission the attending Doctor being a surgeon is the best person who can take that decision whether the alleged operation would be done either under general anaesthesia or under local anaesthesia but the OP insurance company with an intension to deprive the policy holder has taking the plea to repudiate the claim of the complainant. The OP insurance company on receipt of the premium from the complainant for a long time cannot repudiate the claim of the complainant and they should rely upon the expert opinion that is the discharge summery and certificate of the attending surgeon but they did not pay any heed to the prayer of the complainant and they repudiate the claim which caused negligence harassment mental pain and agony to the complainants. Thus such conduct of the OPs is amount to deficiency in service on the part of the OPs.
In view of the discussions made above, it is opined by this Commission that the allegation of the complainants that there is deficiency in service on the part of the OPs-1 and 2 which caused negligence harassment mental pain and agony to the complainants is proved without any doubt and the OPs insurance company is hereby liable to pay compensation for their deficiency in service to the complainants
Thus on the basis of the discussions made above it is decided by this Commission that the complainants could be able to prove his case beyond all reasonable doubts and is entitled to get the relief as prayed for.
All the points are thus decided favourably to the complainant.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed against the OPs-1 and 2 with cost of Rs.1,000/- (Rupees one thousand) only.
The complainants do get the decree as prayed for.
The OPs-1 and 2 are directed to pay a sum of Rs.51,387/- (Rupees Fifty One thousand Three hundred and Eighty Seven) only either jointly or severally to the complainants within 45 days from the date of order.
The OPs-1 and 2 are further directed to pay compensation of Rs.10,000/- (Rupees Ten thousand) together with litigation cost of Rs. 5,000/- (Rupees Five thousand) only either jointly or severally to the complainants within 45 days from this date of order.
If the OPs-1 and 2 failed to comply the decree within the stipulated period as mentioned above the complainants would be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
