Samaresh Kumar Mitra, Member.

     The case of the complainant in brief is that the complainant had entered into an agreement with the Opposite Party No.1 and thereby purchased an ‘Individual Health Insurance Policy’ in the year 2010 for himself along with his wife, son and mother with the first policy inception date 15.11.2010.  The sum insured is Rs.1,75,000/- for each of the aforesaid insured persons.  Since 2010 the complainant had been regularly renewed the policy and had been paying premiums on regular basis without any interruption. The complainant has paid premium of Rs.14,377/- for the validity period  of 15^th November, 2015 to 14^th November, 2016 and 15^th November, 2016 to 14^th November, 2017 (Insurance premium was Rs.14,350/-) and accordingly the policy is valid as on the date of institution of the instant matter.

            On or about the second week of August, 2016 the wife of the complainant Smt. Rumeli Banerjee, aged about 36 years visited Dr. Jyoti Prakash Halder with pain in her abdomen and underwent to Dr. Halder for treatment.  Thereafter on 31^st August, 2016 at about 10.30 PM the wife of the complainant feeling severe pain in her abdomen and was admitted to ‘Nilima Matri Sadan Nursing Home’ at Uttarpara, Hooghly.

            After few days Rumeli Banerjee was discharged from said nursing home on 02.09.2016.  During the hospitalization various diagnosis/medical examinations were conducted upon the patient, Rumeli Banerjee and an existence of an ovarian cyst with a significant measurement was found. 

            It is pertinent to mention in this respect that immediately after the admission in the nursing home the matter was informed to the O.P. No.3 by SMS.

            After discharging from nursing home, all the original documents including bills of the nursing home, discharge certificate, internal documents of the nursing home, prescription of the doctor, bills for medicine, diagnosis report and bills for diagnosis were handed over to the Opposite Party No.3.

            The Opposite party No.3 provided one blank form purportedly issued by the Opposite Party No.1 for signature of the complainant and also one blank page for his signature.   On query the Opposite Party informed that the claim involves various nitty-gritty’s of medical examination and documentation and that he would fill up the form in a proper fashion and also fill-up blank page as a statement of claim. On 2^nd November,2016 & 12^th November,2016 the complainant received two SMS from the opposite party No.2 that they had sent two purported notices to the complainant requiring further documents and/ or explanations on the aforesaid claim. The complainant submitted that he never received such notices from the OP -2. So he personally visited the office of OP No.2 on 14th November, 2016 and enquired the matter. However the staffs of OP-2 refused to provide any information on the aforesaid matter or to provide copy of the purported notices.

            The complainant thereafter issued a notice to all the O.ps. on 2^nd February, 2017 narrating the entire facts and indicating the deficiency of service and/or unfair trade practice on their part.  On 7^th February, 2017 the complainant received a letter from the O.P. No.1 and the letter was addressed to the O.P. No.3 wherein the O.P. No.3 was asked to provide suitable response in connection with the aforesaid letter.

            It is pertinent to mention here that inspite of the complainant’s showing the deficiency in service by the Opposite Parties the Opposite Parties have not traversed any of the allegations of the complainant and thereby have admitted all the contentions and allegations of the complainant.  On the contrary they have tried to drag the matter as to discourage the complainant from proceeding further by playing various tricks such as giving false verbal assurance.  After expiry of a significant period of about 6 ½ months the complainant able to track the status of the aforesaid claim on an on-line basis from the website of the O.P. No.2 and he became shocked to see the status that the claim of the complainant is closed on 20.01.2017.

            All on a sudden on 31.3.2017 the complainant received a letter dated 03.12.2016 wherein the Opposite Party has asked various queries and documents from the complainant.  In this regard the complainant submits that Opposite Party never sent any letter in earlier and for the first time they sent such letter after expiry of seven months from the date of claim.

            The complainant became shocked, surprised and astonished to see the contents of the letter as much as the said letter requires all such documents which were provided to the O.P. No.3 long back in September, 2016.  The complainant submits that the action and/or inaction on the part of the Opposite Parties clearly constitute a deficiency in service and also tantamount to unfair trade practice.

            Finding no other alternative the complainant filed this case before this Forum for relief with a direction to pay sum of Rs.11,036/- being the claim of the complainant along with @18% interest on the sum till realization, to pay Rs.1,00,000/- as compensation for mental pain and agony and to pay Rs.50,000/- towards litigation cost along with 18% interest on the sum till realization.

 Though the notice was served upon the O.P. No.1 & 2 but neither they appeared nor filed written version to contest the case.  So, the case  heard ex- parte against the O.P. No.1 & 2.

The O.P. No.3 contested the case by filing written version denying inter-alia all the material allegations as leveled against him.  The O.P. No.3 submits that he is an agent of O.P. No.1 and the present O.P. member have already been granted medical claim in favour of the complainant.  There is no consumer relationship in between the complainant and O.P. No.3.

This O.P. further submits that he had been paid all the premiums to the O.P. No.1 after receiving premium amount from the complainant in time and this regard there is no allegation against the present O.P. No.3 by the complainant in his complaint.  So, the present case is not tenable against the O.P. No.3.  So, the present demand of the complainant against O.P. No.3 is vague and barred by law.  Hence, the present complaint against the O.P. No.3 is required to be rejected.

Complainant filed evidence on affidavit, which is nothing but the replica of complaint petition.

 Argument advanced by the complainant heard in full. The complainant filed the written notes of argument which is taken into consideration for passing final order.  

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

 1. Whether the Complainant Prodyut Banerjee is a ‘Consumer’ of the opposite party?

2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3. Whether there is any deficiency in service on the part of the OPs.?

4. Whether the complainant is entitled to get any relief as prayed for?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant Prodyut Banerjee is ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant being beneficiary is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The the complainant claimed the money expensed for the treatment of his wife who is covered by the said policy so he is the consumer of the OP No.1 Insurance Company, OP No.2 is the TPA & OP No.3 is the agent of the OP No.1, they are the service provider, so beingconsumer he is entitled to get service from the Opposite Party.

1. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the opposite parties to pay the entire claim amount of Rs.11,036/- along with interest @ 18%, compensationamounting to Rs. 1,00,000/- and litigation cost amounting to Rs.50,000/- ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

1. Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the complainant took mediclaim policy in the name  of his wife & others before the said company without any doubt.                                                                                                                                                                                                                                                                                                                                                                                                                                                       It is well settled proposition of law that a contract of insurance is based on the principles of utmost on good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts; the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

The case of the complainant is that he is the holder of Individual Health Insurance Policy of the O.P. No.1 and each of the persons covered under the policy in which Rs.1,75,000/- is the sum assured.  Complainant paid premium of Rs.14,377/- for the validity period of 15^th November, 2015 to 14^th November, 2016.  During the period the wife of the complainant Smt. Rumeli Banerjee was admitted to Nilima Matri Sadan Nursing Home,  Uttarpara on 31 st August, 2016 with a severe abdominal pain and after undergoing proper treatment and discharged from there on 02.9.2016. The said happening was informed to O.P. No.3 through SMS on 01.9.2016 and on the basis of that information O.P. No.3 sent e-mail to O.P. No.1 & 2.  Immediately after discharge from nursing home all the original documents including bills of nursing home, discharge certificate, prescription of doctor, bills for medicine, the bills for diagnosis centre and others were handed over to the O.P. No.1 through O.P. No.3 along with requisite claim form.  Inspite of receiving all required documents the O.P. No.1 failed to settle the claim of the complainant in collusion with O.P. No.2 & 3.  Thereafter the complainant served a formal notice to the OPs narrating the entire episode and indicating the deficiency of service and unfair trade practice of the OPs. The OPs have not denied and disputed the aforesaid notice of the complainant.  So, it may presume that they accepted and admitted the allegation and contention of service of notice.  After elapsing near about six months the complainant came to know that his claim has been closed on 20.1.2017.  The action and /or inaction on the OPs clearly constitute deficiency of service and unfair trade practice.  So, the complainant prays direction upon the OP to pay the insurance claim of Rs.11,036/- along with interest @18% p.a. from 02.09.2016 till date, being Rs.4139/- as the complainant has suffered notional loss due to the conduct of the O.P.  Due to non-payment of aforesaid amount for a period of about 25 months further treatment of the aforesaid Rumeli Banerjee has been adversely affected thereby exposing her imminent danger of life and health.  Various health issues arose after filing of the instant complaint on 3.7.2017 which could not be resolved for non-payment of the aforesaid amount.  As a result the family of the complainant has suffered tremendous financial problem, mental pain and agony for which he prayed a sum of Rs.1,00,000/- as compensation from the O.P.  The complainant also assailed the unfair trade practice of O.P. No.1 in connivance with O.P. No.2 & 3.  So, this Forum should impose an exemplarily cost and compensation for unfair trade practice. He referred the judgment of Hon’ble Supreme Court cited in [200(6) Supreme321, 2000 0 AIR (SC)3138, AIR(SCW) 3409]. 

O.P. No.3 by filing written version denied the allegation leveled against him and averred that he is a mere agent of O.P. No.1 and there is no jural relationship of consumer in between the complainant and O.P. No.3.  So, he prayed to reject the complaint against him. 

After perusing the complaint petition, documents in record, written version of O.P. No.3, evidence on affidavit of the complainant and brief notes of argument.  It appears from the case record that the complainant along with his wife and two others are covered under the health insurance policy of O.P. No.1. The wife of the complainant treated ovarian cyst in a nursing home at Kolkata within the policy period and expensed a sum of Rs.11,036/- including all bills of the nursing home, bills of medicine, fees of doctor and bills of diagnostic centre. Immediately after the treatment, the complainant filed the documents before the OP through its agent but his claim has not been settled for indefinite period then the complainant came to know that his claim file has been closed.

There is no dispute regarding the treatment of the wife of the complainant and the treatment of ovarian cyst done within the policy period and it is not disputed by the OPs. But the OP No.1&2 despite receiving notice did not turn up & filed no written version so the proceeding run ex parte against them vide order No.5 dated 15.2.2018.  The Xerox copy of treatment sheet as well as bills of nursing home and diagnostic centers filed by the complainant is trustworthy and the OP failed to raise any objection regarding the claim of the complainant.  The letter dated 06.02.2017 of the OP No.1 to the OP no.3 and copy forwarded to the complainant depicts that the OP No.3 did not file the documents to the TPA so the claim of the complainant delayed by the TPA. From the above letter it is crystal clear that the OP is fully aware regarding the claim of the complainant but delay caused due to non submission of documents by the OP No.3 to the OP No.1 and ultimately the claim of the complainant closed at the behest of negligence on the part of the OP for which the complainant getting no alternative sought the recourse of this Forum praying direction upon the OP. The claim of the complainant is unchallenged one. So, we may infer that the wife of the complainant who is also covered under the policy treated and accordingly filed the bills of nursing home, bills of medicine, fees of doctor and bills of diagnostic centre before the O.P. No.1 but the O.P. No.1 could not settle the claim of the complainant rather closed the claim of the complainant which tantamount to deficiency of service on the part of the O.P. No.1, Insurance Company.

It has been provided in the preamble of the Consumer Protection Act, 1986 as well that the objective of enacting the said legislation is to ensure better protection of the interests of the consumers. Once it is proved from the face of the case record as well as from the iota of evidence that the complainant did not receive the money which he expensed during his/her treatment from the insurer then he deserves to be given the compensation, keeping in view the facts & circumstances of the case.

Considering all the facts and circumstances we may hold that the complaint petition deserves to be allowed.

From the above discussion we can safely conclude that the complainant proved his case by producing sufficient documents. 

4). whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

        The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party  insurance company is liable to pay the amount expensed for the treatment of her wife along with compensation for mental pain and agony.

ORDER

Hence, it is ordered that the complaint case being No.134 of 2017 be and the same is allowed ex parte against the Opposite PartyNo.1 with a litigation cost of Rs.6,000/-.      

    The Opposite Party No.1 is directed to pay a sum of Rs.11,036 to this complainant.

  The OP no.1 is further directed to pay compensation amounting to Rs.10,000/- for mental pain and agony of this  complainant.

 OP no.2&3 are exonerated from this proceeding.

  All the payments are to be made within 45 days from the date of this order.

  At the event of failure to comply with the order  the Opposite Party No.1  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me    Samaresh Kr. Mitra, Member.