Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has alleged that complainant purchased one Individual Health Insurance Policy for herself in the year 1999 at the age of 39 years, presently named as Health Insurance Policy-Gold, bearing Policy No.031000/48/10/97/00001311, issued by the OP Insurance Company and initially the policy had been issued for the time period of one year only and the complainant had renewed the said policy from time to time by making payment of the yearly premiums under the terms of the said Contract of Insurance as entered by and between the complainant herein and the total sum assured against the said health insurance Policy was of Rs.1,00,000/- only.

            In the month of May, 2011, complainant had became seriously ill and she had contacted a reputed physician, namely Dr. Debasish Banerjee and the consultant physician had advised her to perform USG Scan and other pathological testing for proper diagnosis of her ailments and from the findings of the USG and also from the findings of the CT Scan Report of her whole abdomen, as performed on the 30^th May, 2011, the presence of a huge Ovarian Cyst in her right ovary had been detected and after diagnosis complainant consulted a gynecological surgeon for removal of the said huge Ovarian Cuyst/Tumor by operation and therefore, Dr. Jayanta Kumar gupata advised her for immediate hospitalization and operation.

            Accordingly, on 06-06-2011 complainant was admitted to Apollo Gleneagles Hospital of 58, Canal Circular Road, Kolkata – 700 054 and on the very next date, i.e. on 07-06-2011 she had undergone a major surgery for removal of the said cyst and from her right ovary and, as such, at the time of removal of the said huge Ovarian Cyst the concerned surgeon had also done the hysterectomy operation of the complainant as the part of the major operation and the said surgeon had also clarified regarding the necessity of performing the said hysterectomy operation in the certificate issued by him on 13^th June, 2011, stating that “The decision to hysterectomy was taken during operation due to frozen section report of borderline mucinous malignancy at the time of major surgery also needing 2 days of ICU stay postoperatively sincerely”.  Before admission complainant had also informed the insurer in this regard.

            Immediately after the operation and release submitted Mediclaim for Rs.1,21,910/- to meet the charges of the hospitalization and for operation and further Rs.20,000/- for her pre and post hospitalization expenses including the charges of USG and CT Scan together with the post operative expenses towards cost of medicines etc., but against her claim M/s. Genins India TPA Ltd. as appointed by the United India Insurance Company Ltd. had suggested the Insurer to pay an amount of Rs.25,000/- to the hospital treating her operation as a minor operation of hysterectomy under the terms of the said Health insurance Policy and totally ignoring the fact that the complainant had been admitted to the hospital as per the advice of the consultant gynecological surgeon, namely Mr. Jayanta Kumar Gupta, for a major operation that is removal of Huge Right Ovarian Cyst, which had also been clearly mentioned in her Discharge Certificate, dated 12-06-2012 issued by the said Apollo Gleneagles Hospital.  The complainant was very much dissatisfied with the decision of the TPA in settling her claim at Rs.25,000/- and, thereafter, the complainant herein had made a further claim against Health Insurance to the OP Insurance Company but that was turned down on the ground “This refers to the claim lodged by you for Abdominal Hysterectomy to the Genins TPA against which they have allowed 25% of the sum assured of Rs.1,00,000/- (which is the maximum limit for such operation)” and for which the complainant prayed for relief on the ground that OP did not properly settled the claim and it is no doubt a deficiency of service and ultimately prayed for relief.

            On the contrary the Insurance Company by filing written version has submitted that there is no deficiency in service on the part of the OPs since the claim of the complainant has been settled as per policy condition and complainant has received that amount and encashed it.

            It is further submitted that at the time of taking policy the insured intentionally suppressed her health condition as per medical report that she had undergone several operations prior to taking the policy i.e. Bone Cyst Operation in 1979, Left Ovarian Cyst Operation in 1986, Choleccystectomy in 1998, Caesarian Section operation 24 years back and if the complainant declared the same Health Insurance Policy shall not be issued to her.  But the Insurance Company on good faith and as per statements of the complainant issued the same.  However, the complainant had undergone hysterectomy on 07-06-2011 during the policy period 16-09-2010 to 15-09-2011 under present policy and during operation a tumor being removed under medical procedure for which complainant is entitled to 25% of S.I. Rs.1,00,000/- i.e. Rs.25,000/- which was duly paid to the complainant, as per policy condition.  So, complainant is not entitled to any further payment and moreover complainant managed to procure a certificate from J.K. Gupta dated 13-06-2011, which is disputed document and unless this OP shall get the Dr. J.K. Gupta in the dock, in order to cross-examine the doctor concerned, the truth shall not be revealed and OP disputed the certificate.

            It is further submitted that “Major surgeries” means Cardiac Surgeries, Brain Tumor Surgeries, Pacemaker Implantation, Cancer Surgeries, Hip, Knee, Joint replacement surgeries.  As per Insurance Policy Condition No.1.2 and the complainant’s case is not coming within the said meaning so, the claim of the complainant should be dismissed.          

Decision with Reasons

On indepth study of the complainant and particularly the terms and condition of the policy and further the present complainant’s claim it is found that as per settled principle of law the insured cannot claim anything more than what has covered by the Insurance Policy and the terms of the contract have to be construed strictly without alternating the nature of the contract as the same may affected the interest of the parties adversely and the clauses of an insurance policy have to be wrote as their consequential terms of the insurance policy that fixed the responsibility of the insurance company must also be written strictly.  It is settled legal proposition that while construing the terms of contract the insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words.  It is also well settled principle in view of the ruling reported in AIR 2010 SC 3400, AIR 2012 SC 2829, AIR 2009 SC 2493 etc.   Directly, in this case Ld. Advocate of the Insurance Company submitted that complainant at the time of purchasing the present policy did not disclose her previous operation and diseases and admitted fact is that complainant suppressed about her Bone Cyst Operation 1979, Left Ovarian Cyst Operation in 1986, Choleccystectomy in 1998, Caesarian Section Operation 24 years back etc. and in this regard complainant is very much silent and complainant had failed to give any satisfactory explanation for what reason at the time of purchasing present policy she did not disclose it.  And as per contract it is mandatory and if about his preexisting health condition nothing is stated in that case the complainant shall have to face the consequences if anything is searched out.  Subsequently, after purchasing of such policy by suppressing the preexisting diseases operation etc. and in this case it is proved complainant suppressed all these things at the time of purchasing this present policy and did not declare that all those operations were done and he had been suffering from several problems in her abdomen and for which no doubt complainant cannot claim any further claim.  When the present op even after considering and treating it is a fresh medical insurance policy granted Rs.25,000/- for hysterectomy operation as per clause of the contract and complainant has received it.

            But at the time of advancement of argument the Ld. Lawyer for the complainant submitted that it is a major operation and as per definition of the major operation this operation also includes a major operation as per certificate of the doctor and in support of that Ld. Lawyer of the complainant submitted one ruling reported in AIR 1987 Supreme Court and advanced argument to the effect that to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it and to include meanings about which there might be some dispute, or to bring under one nomenclature all transactions possessing certain similar features but going under different names and tried to convince that the word means indicates that definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down in definition. 

            The word includes when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include.  The words and further submitted that the definition of major surgeries cannot be restricted to only certain type of surgeries as mentioned in the insurance policy contract but any major surgery shall come under the purview of the said definition of major surgeries.

            In this regard, we have gone through the discharge summary issued by the Apollo Gleneagles Hospital for the period of 06-06-2011 to 12-06-201 and from that report it is clear that she had been suffering from hypertension, diabetes mellitus type 2 and hyper thyroid in three years prior to operation.  But it is peculiar that complainant did not disclose all these matters regarding his preexisting disease.  Then it can safely be said without any hesitation relying upon the ruling as referred that there is no necessity to decide otherwise face if it is admitted that it was major surgical operation.  On the ground the vital cause for all other diseases is hyper tension and also diabetes mellitus and hypothyroidism for three years prior to 06-06-2011 (date of admission) and undisputed fact is that the present policy was for the period from 16-09-2010 to 16-09-2011.  But from the discharge summary it is proved that complainant had been suffering from hyper-tension, diabetes mellitus 2 and hypothyrodism for past three years from the date of admission on 06-06-2011 that means at the time of purchasing present policy she had been suffering from several diseases like hyper tension, diabetes mellitus 2, hypothyroidism etc. but that was suppressed and it was purchased and now, the present complainant is claiming that she is entitled to entire claim amount on the ground that her surgery was major surgery.  Even if it is found that it is major surgery but fact remains at the time of purchase she had been suffering from preexisting disease and suffered and so complainant for non-disclosure of the preexisting disease at the time of purchasing of the policy in the month of September, 2010 the complainant has violated the terms and condition of the policy and for which no further claim can be entertained in view of the ruling as referred in the previous paras as passed by the Hon’ble Supreme Court and fact remains under any circumstances complainant cannot get any further relief in view of the non-disclosure of the preexisting diseases but truth is that complainant has accepted Rs.25,000/- that was granted by Insurance Company only to give some relief for hysterectomy and no doubt complainant accepted it then no further claim can be entertained by the insurance company and no doubt the OP insurance company rightly did not consider this further prayer and there was no good and sufficient ground to consider it and for which that was rightly rejected by the Insurance Company and there was no negligence on the part of the OP Insurance Company.

            In the result, complaint fails.

Hence,

Ordered

That the complaint be and the same is dismissed on contest but without any cost against the OPs.