Order-27.
Date-22/07/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that he applied and obtained an insurance coverage under a policy under name and style “Mediclaim Policy” being policy No.0310002812P301712979 issued by the OP2 on 10-01-2013 and accordingly issued a policy certificate in the name of complainant and his wife namely Tandra Ray and son namely Aritra Ray as insured by giving coverage to the complainant in the event of any hospitalization benefits during the period on and from 13-01-2013 to 12-01-2014 for an overall capital sum insured of Rs.1 lakh for the complainant and Rs.75,000/- for Tandra Ray and Rs.50,000/- for Aritra Ray. It is pertinent to mention that the complainant was insured with the OP since 2000 and since then he regularly paid all the premiums to the OPs. It appears from the policy certificate itself and on possible inquiries, complainant has gathered that the principal liability to pay the sum insured under the policy solely rests upon the United India Insurance Co. Ltd. the OP1 having regard to the contract of Insurance. The proforma OP3 have acted merely as a service provider having authority to settle any claim under such a policy.
One day within the validity period of the policy complainant’s son Aritra Ray went to Disha Eye Hospital & Research Centre, Barrackpore and consulted with the doctors for his poor vision and after some tests and investigations said doctor suggested for operation of keratoconus and on 18-12-2013 he admitted there for his operation and discharged on the same day. During the aforesaid period of treatment he had to undergo various medical tests and/or investigation and operation as per advice of the doctor and incurred Rs.27,798-39 for operation and several expenditures. It is pertinent to mention that the complainant submitted all the necessary original and relevant papers and documents at the time of submitting the claim form to the office of the OP2 for consideration and approval vide claim number UN-8-2198 with claim amount of Rs.27,798-39 on 27-12-2013 but complainant got no favourable action or reply from the end of the OPs. After waiting for such a long period complainant contacted with the OPs1 to 3 but even after assurance given by the OPs, OP3 issued a letter on 28-02-2014 to the complainant intimating repudiation of the claim on the ground of terms and condition.
Finding no other alternative complainant lodged one complaint before the Consumer Welfare Officer, Kolkata North Regional Office on 06-03-2014, they sent notice to the OPs on 20-03-2014 directing the OPs to appear but OPs deliberately and intentionally avoided such notice with an ulterior motive and did not appear.
It is further mentioned by the complainant that on the overleaf of the said policy certificate issued in favour of the complainant there are some “terms and conditions” which are applicable in regard to any claim arising out of the said Mediclaim insurance but there is no mention as to the alleged condition for which the OP3 raised in their letter dated 28-02-2014 while repudiating the claim of the complainant and except this no other document supplied by the OPs.
As per Regulation No.2 of I.R.D.A. Regulations, 2002 provides that “Every insurer shall form and give information periodically the insured regarding lodging of a claim arising in terms of the policy and the procedure to be followed by him to enable the insurer to settle a claim early”…. Therefore, it is the bounden duty on the part of the OPs1 to 3 to inform the complainant regarding the alleged conditions at the time of intimation of her claim for settling her claim but without doing the same they rather repudiated the claim by invoking the said conditions and such conduct on their part is contrary to the settled principle of law, for which by filing this complaint complainant prayed for redressal before this Forum.
On the other hand OPs 1 and 2 by filing written statement has submitted that the insured is a policy holder under the platinum policy being Policy No.031000/28/12/P3/01712979 of the OPs from 13-01-2013 to 12-01-2014 for sum insured of Rs.50,000/- and admitted to Disha Eye Hospital and Research Centre on 18-12-2013 and the insured submitted claim for Rs.27,998/- for corneal collagen cross linking riboflavin done in a case of keratoconous rt eye as reflected from discharge summary and this is a type of congenital hereditary disorder present since birth. Complainant submitted that the present claim is related to keratoconuc of both eyes and the same was certified by the attending doctor vide certificate dated 09-01-2014 and being an inherent congenital disorder, implying the same is a form of congenital/herediatary defect. As congenital disorders are excluded peril under the policy vide exclusion clause, the claim was repudiated as per policy clause No.4.1 and 4.14 of UIIC Platinum Policy condition. It is settled position of law that if insurer repudiates a claim in good faith after due application of mind to all the matters concerning a claim, the act of the insurer cannot be challenged or questioned as an act of deficiency in service. As there is no deficiency on the part of the OPs the complaint should be dismissed.
Whereas OP3 by filing w/v submitted that he acted as per policy condition and reported the matter to Insurance Company and they have no relationship as service provider with complainant and so complainant is not consumer of OP3 for which complaint should be dismissed.
Decision with Reasons
On comprehensive study of the complaint and the written version and also after relying upon the argument as advanced by the Ld. Lawyer for the OPs we are convinced that no doubt complainant submitted a mediclaim against mediclaim policy No.0310002812P301712979 for treatment of Aritra Ray at Disha Eye Hospital and the amount of the claim was Rs.27798-38 vide claim no.UN-8-2198 but it is admitted by the OP that claim has been repudiated as per terms and condition of the existing policy and as per OPs this disease is caused due to genetic factors and for which the same was repudiated, that means it is a hereditary disease. Truth is that complainant submitted all documents and also the report of the doctor regarding doctor’s views about the particular disease that is called keratoconus and truth is that Aritra Ray the patient who is covered by the mediclaim policy has suffered from such diseases.
In this regard practically we have gathered from several articles of different professors of Discipline of Ophthalmology, University of Auckland, (New Zealand) that the prevalence of keratoconus has been reported to vary in different studies and there are many factors influencing prevalence of the said diseases for exposure to environmental cofactors and also in some cases different genetic predisposition and after research it is confirmed on recent comparative study of Britain that there are a fourfold greater incidence of keratoconus in Asians from the Indian subcontinent, compared to white Caucasians living in the same geographical area and this and other reports also demonstrate racial differences in disease severity and rate of progression. If other racial differences are demonstrated, such populations, especially if small, may prove invaluable in future molecular genetic studies. It is specifically mentioned that without video-keratography reasons of keratoconus disease cannot be properly detected and identified.
Anyhow, cause of keratoconus is a complex disorder but there is positive relationship between eye rubbing and keratoconus has been suspected for decades. Certainly rubbing behaviour is strongly associated with the disease.
But anyhow in this case OPs have tried to convince that it is a hereditary disease due to genetic predisposition. But after worldwide research made by several doctors of different Universities they have accepted the final research theorization of Mathew Edward and Simon Dean of Discipline of Ophthalmology, University of Auckland, and they have confirmed that keratoconus can arise in those whose only recognized risk factor is eye rubbing without clinical evidence of atopy and association between rubbing and the pathogenesis of keratoconus is unknown but it has been suggested that some environmental factor is there for which continuous eye rubbing is caused by the patient. National Eye Institute of United States reported that it is the most common corneal dystrophy affecting about one in 2000 Americans and practically people of South Asian Countries are suffering kerotaconus as Caucasions. Research of German ophthalmologist Albrecht von Graefe, British surgeon William Bowman, French physician Eugene Kalt have confirmed that starting of 20th Century this disease has been increased and at the same time to make that research of kerotaconus has both improved understanding of the disease and greatly expanded the range of treatment option and in fact, all the researchers after thorough research and after examining different types of patient confirmed that it cannot be stated as hereditary but genetic factor is there. But it must be searched out that the said disease is being carried by his forefathers or from mother’s side. But researchers have stated that it is impossible to search out and to come to a conclusion that it is hereditary. But they have confirmed that in some areas genetic factor is there but without examining a patient’s father, grandfather, mother and mother-side father etc it cannot be stated that it is hereditary or genetic but from their research work it is proved that in some countries like Tasmania, Finland and other Asian countries this disease is being increased for environmental cause when that is the fact then it is clear that there is no such report submitted by the OP that complainant no doubt is suffering from the present disease due to inheritance from his father and grandfather etc., whatever it may be and genetic basis is unknown till now. At the same time the doctors examined and treated the patient has not confirmed that the present patient’s father, mother, maternal grandfather, and grandmother or grandfather have their such sort of sufferings and without proving the sufferings of patient’s father, grandmother, grandfather or maternal grandfather, grandmother etc. there is no scope to come to a conclusion that the patient is suffering from such disease what he inherited from his parents side. At the same time the aforesaid doctors of different countries have come to a conclusion that genetic basis of this disease is unknown up to this stage butthe said researchers have come to a conclusion that “it is foreseeable that over the next decade molecular genetics may reveal firm evidence on the nature of genetic inheritance of keratoconus in specific populations”. So, they have come to a conclusion up to this stage that kerotaconus is a de-generative disorder of the eye. So, we are confirmed that the observation and findings of the doctors of the OP that it is a genetic disease is completely baseless and without any foundation and in this regard we have given emphasis upon the final research work of Mathew Edward and Simon Dean of Discipline of Ophthalmology, University of Auckland, and other doctors and researchers whose name has already been mentioned who held from American Institute or of British or French or Germany. In the above observation we are convinced to hold that without proper study of the worldwide research by the doctors in field in determining the cause in such a disease OPs somehow or otherwise repudiated the claim stating that it is a genetic disease but it is not at all genetic when particularly there is no such material to show that this patient is suffering from the present particular disease in his eye and/or his parents or his predecessors are also suffering from it when there is no such proof in support of that, so the decision of the OP is completely groundless and for which we find that the claim of the complainant ought to have been allowed by the OP when we are confirmed that it is not a genetic disorder of the patient. In the light of the above observation we are inclined to allow this complaint by holding that the repudiation is baseless and without any medical foundation.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.2,000/- against the OPs.
OPs 1 and 2 are hereby directed to pay a sum of Rs.27,798/- finally to the complainant treating it as final settlement of the mediclaim as submitted by the complainant for reimbursement of the treatment cost of Aritra Ray treating that claim as finally settled by this Forum.
OPs shall have to pay the said amount including litigation cost within one month from the date of this order positively failing which for non-compliance of the Forum’s order OPs1 and 2 shall hve to pay penal damages at the rateRs.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OPs are reluctant to comply the order in that case penal proceeding u/s.27 shall be started against them and for which further penalty and fine shall be imposed.
