DATE OF FILING : 10-08-2012.
DATE OF S/R : 12-09-2012.
DATE OF FINAL ORDER : 17-01-2013.
Niharendu Dutta,
resident of 50/2,'L' Road, Belgachia,
District –Howrah,
PIN – 711108.------------------------------------------------------------------- COMPLAINANT.
Versus -
1. United India Insurance Company Limited,
registered & head office at
24, Whites Road,
Chennai – 600014.
2. Divisional Manager,
Howrah Divisional Office,
United India Insurance Co. Ltd.,
4/12, G.T. Road ( south ),
Howrah – 711101.
3. Heritage Health TPA Private Limited,
NICCO House ( 5th floor ),
2, Hare Street,
Kolkata - 700001.
4. Assistant Manager,
Heritage Health TPA Private Limited,
NICCO House ( 5th floor ),
2, Hare Street,
Kolkata – 700001.
5. In-charge,
Cashless Section,
Heritage Health TPA Private Limited,
NICCO House, 5th Floor,
2, Hare Street,
Kolkata – 700001.--------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.Ps., United India Insurance Company Ltd. to pay the medical expenses ( mediclaim ) of Rs. 98,697/- together with interest @ 18% per annum, compensation to the tune of Rs. 2,60,000/- for causing unnecessary harassment and Rs. 1,00,000/- for mental agony and Rs. 20,000/- as litigation costs as the o.ps. repudiated the claim of the complainant dated 08-07-2011 on misinterpretation that Respiratory Tract Infection as a preexisting disease.
The o.p. no. 2 in their written version contended interalia that the
complaint is bad for non joinder of parties ; that the complaint is not maintainable in law ; that in view of Clause 3.10 of the Policy 48 months continuous coverage by the insured is mandatory ; that the disease in dispute preexisted ; that the complainant, a patient of renal transplant is on immunosuppressant which predisposes a person to infection. So the complaint is liable to be rejected.
3. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
4. Both the points are taken up together for consideration. Ld. lawyer for the o.p. insurance company argued that the respiratory tract infection is a resultant effect of the use of immunosuppressant drugs by the complainant after kidney transplant as usual and as, such disease or symptoms comes within the definition of preexisting disease resulting ultimate repudiation of the claim by the o.p. company.
5. The complainant himself monitored his complaint. He stated that his kidney has been transplanted on 03-08-2006 and since then he is working just like a normal person and never suffered any ailment nor he is dependent on immunosuppressant durg; that the o.p. insurance company repudiated his claim on mere misinterpretation with the sole purpose to deprive him.
6. Be that as it may after going through the complaint, its enclosures, the documents relied upon by the o.p. insurance company and the brief notes of argument furnished by the o.p. insurance company, we are of the view that the instant complaint must succeed owing to following reasons :
( A ) The o.p. company repudiated the claim citing preexisting disease of Diabetes and Renal Transplantation. But the complainant was never admitted in any hospital for treatment for the two preexisting diseases. His diabetes was under control for last five years and even on the day of his admission in the Appelo Gleneagles Hospitals, Kolkata on 27-06-2011 for his treatment vide the prescription dated 22-06-2011 then was no sign of diabetic symptom. Enclosure 'K' is the test report of the blood sample showing the plasma glucose as 127 mg which was very much within the normal limit. It further shows that his creatinine level was 1.3 mg. which was also within the normal limit. This Enclosure 'K' indicates that even after transplantation of his kidney it was functioning normally.
( B ) The doctor V.V. Laxmi Narayanan, M.D. has not opined anywhere ( Enclosure A ) that the complainant was suffering from the diagnosed disease i.e. respiratory tract infection because of Diabetes or kidney transplantation. Naturally the application of 4.1 of the individual policy in this case for repudiation of his claim is thoroughly baseless. We are distressed to note that the o.p. company repudiated his claim on mere misinterpretation depriving him from his genuine claim.
( C ) Enclosure P/3 as furnished by the o.p. company containing the observation of Dr. Rajat Kr. Dutta appears to us to be a routine opinion. He never observed that the complainant was suffering from respiratory tract infection due to his preexisting disease. Naturally this Enclosure P/3 cannot stand in the way of granting the medi-claim as claimed by the complainant. On the contrary the opinion of the attending doctor ( Enclosure A ) carries much weight as he examined the complainant physically and his opinion cannot be thrown overboard and naturally the Exclusion Clause 4.1 cannot come into operation as for last 3 years he never suffered from any disease as alleged. Extra amount was charged from him as he was a patient of Diabetes. He paid the premium regularly. How his claim can be thrown away by the o.p. company? In disposing of this complaint we are of further opinion that not only the o.p. nos. 1 & 2 but the o.p. nos. 3 to 5 are equally responsible for repudiating the bonafide claim of the complainant. So the o.p. nos. 3 to 5 cannot escape the rigours of law on the pretext that o.p. nos. 1 & 2 are the sole authority to disburse the claim. It is as per the advice of the TPA that the insurance company negated the claim of the complainant.
We are, therefore, of the view that this is a fit case where the claim of the complainant shall be allowed. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 92 of 2012 ( HDF 92 of 2012 ) be and the same is allowed on contest as against the o.p. nos. 1 & 2 and ex parte as against the rest with costs.
The O.Ps. are jointly and severally directed to pay the medi-claim amount of Rs. 98,637/- to the complainant together with the interest thereon @ 12% p.a. from the date of discharge from the Apollo Gleneagles Hospitals Ltd., Kolkata, till realization.
The o.ps. jointly and severally be further directed to pay the complainant a compensation to the tune of Rs. 1,00,000/- for mental pain and prolonged harassment.
