FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is the case filed by the complainant U/s12 read with section 13 of the CP Act, 1986 against the OPs stating inter alia that the complainant No. 1 is the son of the complainant No 2. being the proposer the complainant No. 1 initiated a health insurance policy on 5 Oct 2010 in the name of his widow mother ie complainant No. 2 vide Customer Code No. AA0000733174, Intermediary Code No. LC00000000273 under the OPs on payment of required premium of the said health insurance policy. The sum assured of Rs. 2 lacs. The complainant No. 1 lastly paid a sum of Rs. 9,978/- on 30.09.2017 for the period of 6 Oct 2017 to 5 Oct 2018 before the OPs in connection with the policy No. P-190000/01/2018/008979.
It is further stated by the complainants that on 12 July 2018 the complainant No. 2 admitted at “People’s madi- Treat Pvt. Ltd. ” nursing home (Network Nursing Home under list OPs) situated at 262, N S Road, Howrah-711101 with pain at back hip due to fall injury at his residency and subsequently, discharged on 17 July 2018 and the aforesaid nursing home informed about the admission of complainant No. 2 before the OPs for “cashless” preauthorization treatment of the complainant No. 2 which was rejected by the OPs on 13 July 2018. As a result, the complainant No. 1 carried the cost of the treatment of his mother “complainant No. 2” with his own fund and paid a total sum of Rs. 68,555/- only to the nursing home for the period of 12 July 2018 to 17 July 2018.
Thereafter, complainant No. 1 submitted the claim application to the OPs along with all the prescription and medical papers issued by Dr. Padma Kalikar and Sarat Chandra Kundu issued by the Nursing Home. The OPs after verifying all the papers and documents including the aforesaid prescription issued by the Drs. They have adopted the unfair trade practice and refused the claim alleging that the complainant No. 2 was suffering from parkinsonism prior to get the health policy but Dr. Sarat Chandra Kundu against the check up the complainant No. 2 on 14.08.2018 and opined that she was not suffering from parkinsonism. The OPs finally on 11 Sept 2018 rejected the insurance policy and issued a cheque of Rs. 9,978/- in favour of the complainant No. 1. which is lying in custody of the complainant. Thereafter, without having any other alternative, the complainants sent a advocate’s letter to the OPs on 24.09.2018 which was duly served upon the OPs 1 and 2 and it is alleged by the complainant that the OPs 1 and 2 made unfair trade practice by denying the claim of the complainant on 13 July 2018 and also cancelled of the insurance policy on 28 July 2018.
Hence, the instant petition of complaint is filed by the complainant with a prayer to give direction to the OPs Insurance Co. to pay a sum of Rs. 68,555/- only for the free and post of hospitalization charges along with compensation of Rs. 30,000/- for harassment, mental pain and agony and also Rs. 10,000/- as litigation cost.
The complaints also prayed for restoration of insurance policy.
The OPs 1 and 2 have contested claim application by filing a WV denying all the material allegations leveled against them .
It is the case of the OPs 1 and 2 that the instant case is harrsive, malafide and baseless. The complainant did not come before this forum with clean hands. It is also case of contesting of the OPs 1 and 2 that admittedly the OPs 1 issued a policy “Senior Citizen Red Carpet Health Insurance Policy” in the year 2010 and the said policy was renewed time to time till the policy period of 06.10.2017 to 05.10.2018 being policy No. P/190000/01/2018/008979 in favour of the complainant No. 2 Maya Ghosh.
It is the further case of the OPs that it has been clearly stated in the subject insurance policy that “be insurance under this policy is subject of condition, clause, warranties and exclusion extra attached” and accordingly, a contract of insurance was entered into by and between the parties in policy in question. The copy of subject insurance policy is annexed as annexure “A” and the proposal form is annexed as annexure “A/1”. it is the further case o f contesting OPs that admittedly the complainant No. 2 was admitted in “People Medical Treat Pvt. Ltd.” on 12.07.2018 at 262, N S Road Howrah-711101 with pain at back hip due to fall injury at her residence and was discharged on 17.08.2018 from the said nursing home. it further case of the OPs that in their WV on perusal of documents of submitted by the complainant it appears that insured patient has been suffering from Parkinsonism / MDD since 2006 as per prescription of Dr. Padma Kalikar dated 10.12.2006 which was suppressed by the complainant at the time of inception of the policy. So, the OP/ Insurance Co. denied the claim of the complainant No. 1 vide letter dated 13.10.2018 . The OP/ Insurance Co. cancelled the policy in question vide its letter dated 28.10.2018 and refund the amount of Rs. 9,978/- only by DD dated 10.09.2018 to the complainant. Copy of said letter has annexed as annexure “C” and the copy of bank DD being No. 857638 dated 10.09.2018 of Rs. 9,978/- drawn in faovur of Santanu Ghosh is annexed herewith as annexure “D” and the copy of prescription issued Dr. Padma Kalikar on 10.12.2006 is annexed as annexure “E”. The prescription of Dr. Padma Kalikar 06.12.2014 is annexed as annexure “F”.
The OP-1 and 2 further stated in the WV that the insurance Co. is not bound to make payment in case of incorrect information supplied by the incorrect information supplied by the insured person at the time of initiation of policy in question because insurance is a contract based on utmost good faith by which both the parties the insured and insurer are bound. It is alleged by the OPs-1 and 2 in their WV that there was no single instance of deficiency in service on their part because the insured person did not submit the actual information at the time of initiation of the policy in question rather the dispute arise due to non disclosure of the material facts in the proposal form. The insured person suppressed the pre existing disease so as per contract as well as rules and regulation of the insurance co they could not be able to satisfy the claim of the complainant which should not be considered as on the part of the OPs and the complainant is miserable failed and neglected to satisfy the query of the OPs. Thus, the complainant is not entitled to get the relief as prayed for and the petition of complaint is liable to be dismissed with exemplary cost.
The OP-3 did not appear before this Forum even after receipt of notice at any point of time. Thus the case is run ex parte against the OP-3 vide order dated 17.01.2019.
In view of the above stated pleadings the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Have the complainants any cause of action to file the case
- Are the complainants a consumer?
- Is there any deficiency in service on the part of the OPs?
- Are the complainant entitled to get relief as prayed for?
- To what other relief or reliefs are the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
It is the case of the complainants that the complainant no.1 being the son of the complainant no.2 was the proposer of the policy in question who made a health insurance policy on 05.10.20210 in the name of his mother i.e. the complainant no. 2 Maya Ghosh vide Consumer Court No. AA0000733174, Intermediary Court No. LC0000000273 under the OPs. The complainants submitted all the required papers along with prescriptions dated 10.12.2006 and 06.06.2010 issued by Dr. Padmakali Kar and Dr. Sarat Chadra Kundu respectively in the name of complainant no.2 before the Ops prior to inception of the policy.
The complainant further stated that he obtained the policy in question on payment of required premium of Rs.9,978/- lastly paid on 30.09.2017 for the period of 06.10.2017 to 05.10.2018 being policy No. P/190000/01/2018/0089789 and the sum assured was of Rs.2,00,000/- .
It is admitted fact that the OPs issued the subject policy being Policy No. P/190000/01/2018/0089789 dated 05.10.2010 after considering all the rules and regulations and the required documents submitted by the complainants on receipt of the required premiums. It is also admitted fact that the sum assured of the subject policy was of Rs.2,00,000/- and the OPs have renewed the policy year after year i.e. ill 30th September, 2017 for the period of 06.10.2017 to 05.10.2018 on receipt of required premium being satisfied with the documents filed by the insured person / complainants.
So, when admittedly the complainants obtained the health insurance policy for the complainant no.2 on payment of the required premium from the OPs since then the complainant is a consumer as per provision of CP Act, 1986.
On a close scrutiny of the material on record it is found that this Forum has got the ample jurisdiction to try this case on the point of territorial and pecuniary jurisdiction and the complainants have filed this case within the period of limitation from the date of cause of action.
On the basis of discussion made above, it opined by the Forum that the case is well maintainable in the eye of law and the complainant has / had sufficient cause of action to file this case.
from the facts and circumstances as well and evidence on record of the case it appears that since inception of the subject health insurance policy the OP insurance co. merrily renewed the policy year to year since 05.10.2010 till 05.10.2018 without any sort of problem but problem arose as and when the complainant no.2 fallen ill due to fall injury at her residence and got admission at “People’s Medi – Treat Pvt. Ltd.” Nurshing home (network nurshing home) under the list of OPs. situation at 262, NS Road, Howrah-711101 with pain at back hip. The nurshing home informed the matter to the OPs and discharged the complainant no.2 from the nurshing home on 17.07.2018. The complainants claimed for “Cashless” preauthorization treatment relating to the complainant no.2 but that was repudiated by the OPs on 13.07.2018. It is also evident from the evidence on record both in affidavit in chief filed by the parties and documents that the complainant no.1 paid a sum of Rs.68,555/- to the nurshing home at his own accord for the treatment of complainant no. 2. It is allegation of the complainant no.1 and the adduced complainant that Srabani Ghosh Pan who added in this case in place of complainant no.2 Maya Ghosh who died during pendency of this case, that they submitted all the documents along with the medical prescription issued by Dr. Padmakali Kar in the year 2006 and the latest in 2014 i.e. 06.12.2014 along with other documents to the OPs at the time of initiation of the subject policy and the OPs initiated the policy and issued the policy certificate to the complainants being satisfied with the documents filed by them. So at this stage when the complainants submitted the claim for the treatment cost of original complainant no.2 the OPs cannot repudiate the same.
In this respect the OPs have stated in their WV that the complainants suppressed the material facts and they did not furnished all material information required in respect of a risk and in respect of materials fact they have citied a case law which is referred in (2009) 8 SCC 316, wherein in the case of Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. The Hon’ble Apex Court has held that “material fact is to truly understood to mean any fact which influence judgment of prudent insurer, in deciding whether to accept the risk or not. If the prosper has the knowledge of such fact he is obliged to disclose the fact particularly while answering the question in the proposal form …..”
In the instant case the OPs have annexed prescription of Dr. Padmakali Kar issued in the year 2006 and 2014 wherein MDD plus/ parkinsonism was mentioned so, it is obvious that the complainants have furnished all required documents to the OPs at the time of initiation of subject health policy and it is expected that the OPs have initiated the subject policy in favour of the insured person after considering all the documents as submitted by the insured person to them and admittedly years together they have renewed the policy with the information and documents as filed by the insured person so relying up on the view of Hon’ble Apex court this Commission is of view that the complainants have supplied all the document which was available to them including the prescription of dr. like Dr. Padmakali Kar regarding the information about the health condition of the complainantno.2 since deceased and the OPs issued the insurance policy in favour of the insured and person being satisfied with the information and documents as submitted by the insurer ad for a considerable period they have renewed the policy till midnight of 05/10/2018 on receipt of the premium of Rs.9978/-. No problem was there to the OPs to renew the policy in question but problem arose as and when the complainant no. 2 fallen ill and got admission at the “People’s Medi – Treat Pvt. Ltd.” Nurshing home (network nurshing home) under the list of OPs. situation at 262, NS Road, Howrah-711101 with pain at back hip due to fall injury.
The complainant no.1 being the proposer of the policy placed the claim for Cashless” preauthorization treatment relating to the complainant no.2 but the OPs repudiated the same.
This is their unfair trade practice because all on a sudden they wake up and found that there was a suppression of material facts in respect of the pre existing disease of the complainant no.2. But at the time of initiation of the policy they have considered the prescription issued by Dr. Padmakali Kar in the year 2006 because it was the time to meet the claim of the insured person.
Now a days It appears to us that it is regular phenomenon on the part of the insurance companies they used to issue the policies to the insured persons on received of the required premium without making any examination by their paneled doctors and when the insured persons placed the claim they repudiate the same by taking the unfair plea of suppression of “Pre existing disease” which has been done by the present insurance co of this case also but it cannot be indulged by this Forum.
From materials as well as evidence on record it is palpably clear that the complainants have requested the OP insurance co. on several occasions to allow their claim but the OP insurance co not only repudiated the legitimate claim of the complainant but also rejected the insurance policy and for eye wash issued a cheque of Rs.9978 in favour of complainant no.1 towards the premium paid by him. Such conduct of the Ops is amounting to deficiency in service. In order to expand their business this insurance cos. used to issue the policies to the insured persons on receipt of the premiums but at the time of meeting their claim they used to repudiate the same on any flimsy ground mostly on suppression of the ‘pre existing disease’ which has been done by the present OPs against the complainant of this case. So the conduct of the OPs shows that they were negligent to perform their duties to the insured persons and if for the argument shake we consider the plea of the OPs that there was so called suppression of ‘pre existing disease’ of the complainants no.2 at the time of initiation of the subject health policy then it is proved beyond all reasonable doubt that the OPs insurance co. did not perform their duty and did not examine the documents as filed by the insured person at the time of the initiation of the subject policy and the insured persons cannot suffer for the negligent and unfair act of the OPs. In that case the OPs insurance co. is liable to compensate the insured person like the complaint of the present case and also liable to make payment of the claim as made by the complainants.
In view of discussions made above, it is held by this Fora that there was sufficient deficiency in service on the part of the OP insurance co. i.e. OPs 1and 2 and also unfair trade practice which they made again complaint and hence, complainants could be able to prove their case beyond all reasonable doubts against the OPs and are entitled to get the relief as prayed for.
All the points of consideration are considered and decided in favour of the complainants.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed on contest against the OPs-1 and 2 and ex parte against the OP-3 with cost of Rs. 5,000/-.
The OPs-1 and 2 are directed to pay a sum of Rs.68,555/- only as medical expenses of the complainant no.2 since deceased from the period of 12.07.2017 to 17.07.2018 to the complainant either jointly or severally within 45 days from this date of order.
The OPs-1 and 2 are further directed to pay compensation of Rs. 15,000/- (Rupees fifteen thousand) only for mental pain and harassment to the complainants along with litigation cost of Rs. 10,000/- (Rupees five thousand ) only either jointly or severally within 45 days.
The OPs-1 and 2 also directed to withdraw the letter dated 28.07.2018 issued by them to the complainant with within 45 days from this date of order id the complainants will be at liberty to execute the decree as per law in a separate proceedings.
Let a copy of this order be handed over to the parties free of cost.
