Complainant by filing this complaint has alleged that complainant purchased one Individual Health Insurance Policy having Policy No.030800/48/12/97/00002529 with a further coverage from 16.07.2012 to midnight on 15.07.2013 for his mother Smt. Gita Balial, as part of the running policy from the op.  within the coverage period the mother Smt Gita Balial suffered injury and had to undergone Medical Care and was admitted in I.L.S. Hospital at DD 6, Section-I, Salt Lake City, Kolkata-64 due to an accidental fall and dislocation thereafter of her shoulder and the matter was intimated to the op and the concerned agent was intimated on 09.07.2012 at early morning before taking admission thereafter she was admitted in I.L.S. Hospital under Dr. Subhasis Deb.

          On 27.07.2012 the complainant submitted that claim form along with bank details and deposited with the op no.1 through op no.2 by annexing the claim for a sum of Rs.35,357/- towards medical expenses.  Fact remains that the complainant’s mother Gita Balial admitted on 09.07.2012 and discharged on 11.07.2012 under the coverage of the Individual Health Insurance Policy as senior citizen and so entitled to benefit of the Rule 1.2 of the policy.  Subsequently on 18.08.2012 the mother of the complainant prayed for disbursement of Medical Bill along with a cancelled cheque and a declaration of the Accounts which the op received on 24.08.2012 followed by a second reminder dated 25.08.2012 which was issued by the op no.2 and ultimately the op violated the provision of clause 1.2 of the policy directly credited to the bank account with Rs.16,177/- without any prior intimation from out of the total Bill of Rs.35,357/-.

          Subsequently op no.2 by their letter dated 06.09.2012 intimated that op has settled the claim amount of Rs.16,177/- as full and final settlement and also given a details of deductions and it is significant to mention that alleged deduction cannot be made in settling the claims as complainant is well within the parameters of clause 1.2, A. B. C. D. and E though in terms of the provision the op cannot deduct the same.  But anyhow op did it.  So, demand notice was sent through his Ld. Lawyer on 18.10.2012 for demanding of disbursement of the claim amount which op received it but did not respond and for which op committed deficiency in service and negligent manner of service and for that reason complainant has prayed for relief.

          On the other hand op Insurance Company by filing written statement has submitted that the Individual Health Insurance Policy having Policy No. 030800/48/12/97/00002529 was effective from 16.07.2012 to 15.07.2013 having coverage of Rs.1 lac was issued in favour of the insured complainant subject to the fulfillment of the terms, conditions and exclusion clauses of the policy and accordingly after receipt of the claim amount, complainant in respect of Rs.35,357/- the matter was considered and settled as per terms and conditions and exclusion clause of the policy and accordingly after due consideration and application of mind, a sum of Rs.16,177/- was disbursed as full and final settlement of the claim after deducting the amount from the claim deed which are not admissible under the policy and it was settled vide letter dated 06.09.2012 and that deduction has been made as per clause 1.2C and 1.2 D of the Policy and the details of deduction has well been explained and clarified on 06.09.2012 and fact remains that op has no negligence or deficient manner of service but service was duly given and everything was done and settlement was done finally as per clause of the policy.

                                                 Decision with reasons

          After hearing the Ld. Lawyers for the complainant and the op and also considering the admitted position of fracture caused to her shoulder and she was admitted to I.L.S. Hospital and further fact is that claim was submitted by the complainant’s mother and complainant in respect of claim of Rs.35,357/- and the said claim was decided finally by the Heritage Health TPA Pvt. Ltd. after applying the terms and conditions of the policy and also the exclusion clause and Heritage Health TPA Pvt. Ltd. released a sum of Rs.16,177/- out of total claim of Rs.35,357/- given details of deduction and in the said details of deduction TPA specifically mentioned why that deduction has been made as per clause and accordingly they have deducted a sum of about 50% and odd of claim.

          But in this case moot question is whether the complainant is entitled to entire claim amount as per bill submitted by the complainant.  In this regard we have gone through the policy wherefrom it is found that the complainant’s policy being No. 030800/48/12/97/00002529 has its coverage from 16.07.2012 to midnight 15.07.2013 for Smt. Gita Balial and it was Individual Health Insurance Policy of 2010 and in the said policy it is specifically mentioned that terms and conditions shall be applicable as per respective individual claim and as per terms and conditions and the policy conditions are also filed by the complainant which is tagged with the complainant’s Individual Health Insurance Policy – 2010 and wherefrom we have gathered that there is a specific note in the said policy to that effect “ the amount payable under 1.2 C and D above shall be at the rate applicable to the entitled room category in case the insured person opt for a room with rent higher than the entitled category as in clause 1.2 above the charge payable under clause 1.2 C and shall limited to the charge applicable to the entitled category.  This will not be applicable in respect of medicines and drugs and implants and no payment shall be made under clause 1.2 C other than as part of the hospitalization fees and it is specifically mentioned in clause 1.2 A to the effect room admitting nursing expenses as provided by the hospital or nursing home not exceeding 10% of the sum assured per day or the actual amount whichever is less.  This also includes nursing home care, RMO charges, fluids and blood transfusion charges and administration charges and similar type of expenses etc. and intensive care unit admission not exceeding of the sum assured per day or actual amount whichever is less.

          So, considering the terms and conditions of the policy attached with the said policy of the complainant’s mother, it is clear that complainant and the op are bound by the terms and conditions of the policy and in the policy conditions it is specifically mentioned.  Then complainant cannot anyway challenge the legality of the said clause or condition of the policy.  But peculiar factor is that at the time of advancement of argument, Ld. Lawyer for the complainant challenges that such a clause is unconstitutional.  But in this regard we have already relied upon one ruling reported in 2013 (4) CPR 165 (NC) wherefrom we find that parties shall be strictly governed by the policy condition and no exception and relaxation can be made on the ground of the equity.  Not only that the Forum has no legal jurisdiction to deviate from the clause and Consumer Forum cannot alter and modify the terms and conditions just because Consumer Forum considers such a clause is unreasonable and in this regard we have relied upon one ruling reported in 2010 (4) CPR 35 (NC) wherefrom we have gathered that Consumer Forum cannot alter or modify the terms and contract just because consider such a clause to be unreasonable. 

          So, considering the above ruling we are convinced to hold that this present Forum has nothing to do or to alter the clause as enumerated as terms and conditions of the policy by which both the parties are guided.  Now the question is whether op violated the terms and conditions of the policy and deducted the same?  In this regard we have gone through the detailed report of the op which was sent to the complainant and wherefrom we have gathered that in the said detailed report communicated on 06.09.2012, it is found that details of deduction are noted very perfectly and mentioning the cause for deduction and clause of the policy. 

          So, apparently after applying our judicial mind and conscience and on comparative study deduction as noted in the letter dated 06.09.2012 which was received by the complainant and also the clause and condition as enumerated in the policy, we are convinced to hold that apparently op did not act illegally.  But they followed the terms and conditions of the policy and deducted the said amount and ultimately settled the claim by sending a sum of Rs.16,177/- out of total claim amount of Rs.35,357/-.

          In this regard we have also gone through the policy condition and the present materials and it is found that complainant falls in the exclusion clause.  So, Insurance Company is not liable to make any further payment and another factor is that parties of the contract of the Insurance are bound by terms and conditions of the policy and in this regard another ruling reported in 2011 (2) CPR 173 (NC) is completely applicable and that judgement was passed by Hon’ble Justice of Supreme Court Justice Ashok Bhan.

          In the result we have gathered that op did not act illegally, op discharged their duties and rendered their service very perfectly and not only that they did not act by placing all materials in darkness and back behind the knowledge of the complainant.  But op replied giving details of the deduction out of the total claim.  But truth is that the settlement amount after deduction has already transferred to the complainant’s account.  So, negligence and deficiency on the part of the op is not at all proved.  At the same time it is also proved that parties are guided and governed by the terms and conditions of the policy and the Forum cannot anyway alter any terms and conditions as unreasonable because Forum has no constitutional authority and if actually complainant is dissatisfied about the terms and conditions or clause and thinks that it is unconstitutional, in that case complainant may appear before the Hon’ble High Court challenging the validity of the clause in the constitutional bench for deletion of those clauses and declaration that those clauses are unconstitutional.

          Fact remains nowadays it has become a practice of some Forum to entertain such sort of complaint and to pass some relief.  But it must be kept in our mind that we are guided by the rule of law.  The Forum cannot go behind the rule or the judgement of the higher Forum and fact remains for such reason many cases are being filed by the Mediclaim Policy Holders challenging the policy clause.  But it is unfortunate and practically in previous occasion from some other bench they got such relief for which it is filed.  But it must be kept in our mind that the Forum is not here and there for declaring any terms and conditions illegal void and decided against any contract etc.  But Forum is here and there to consider whether there is any deficiency and negligence in service.

          But in this case that is not at all here and there in the complaint for which the complaint bears no merit and in the result, the complaint fails.

          Hence, it is

                                                          ORDERED

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