State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027


S.C. CASE NO-FA/09/74



DATE OF FILING :16.2.09 DATE OF FINAL ORDER: 19.5.09



APPELLANTS/COMPLAINANTS :



1. National Insurance Co Ltd.

Krishnagar Branch, 17, M.M. Ghosh Street

Krishnagar Nadia .

2. Insurance Co. Ltd.

8, India Exchange Place,

Kolkata- 700 001.



RESPONDENTS/O.P.S : :

1. Debabrata Dey

28, R.N. Tagore Road,

Krishnagar Nadia.



2. Jayanti Dey

W/O Debabrata Dey.

28, R.N. Tagore Road,

Krishnagar Nadia.



BEFORE : HONBLE JUSTICE :

PRESIDENT : Shri Aloke Chakrabarti.

MEMBER : Shri. A.K.Ray.

MEMBER : Smt. Silpi . Majumder.



FOR THE PETITIONER / APPELLANT : Shri S. N. Dutta.(Advocate)

FOR THE RESPONDENT / O.P.S. : Shri T.Chakraborty , Sm S. Dutta ( Advocates)







Shri A.K. Ray., Member



The Appeal arises out of the order dated 18.12.08 passed by the Dist Forum Nadia in case no NAD/61/O/07 wherein the complaint was allowed on contest against the OP No-1 with cost of Rs. 3,000/- and exparte against OP No-2 without any costs. OP No-1 was directed to pay a sum of Rs. 73,732/- to any of the Complainants with interest @ 10 p.a from 6.1.07 ( date of repudiation) till 17.12.08. OP No- 1 was further directed to pay Rs. 73,372 + interest and cost of Rs. 3,000/- and compensation of Rs. 10,000/- within 40 days from the date of the order failing which all the entire amounts would attract interest @ 10 % p.a from the date of the order till payment.



2. Being aggrieved by and dissatisfied with this order the Appellants have filed the instant appeal mainly on the grounds that the CDF, Nadia did not at all consider the case of the Insurance Company made out in defence and instead of taking recourse to facts directed the Insurance Company / Appellant to pay the decretal amounts. The report of the TPA of the Appellant was ignored by the Forum below. The report of the TPA was that Smt Jayanti Dey ,the insured person, was admitted at Bellevue Clinic on 2.1.07 under Dr. Goutam Khastagir and asked for cash less facilities from Genins India Ltd (TPA) . The TPA of the Appellant did not allow cash less facility since the Complainant / Respondent was suffering from heavy menstrual bleeding for the last several years and it was a pre-existing disease as per exclusion clause (4.1 of mediclaim policy). The Complainant did not disclose any ailment being suffered by any member of his family. Hence, policy was issued in good faith for the period from 3.2.05 to 2.2.06. Though as per prescription dated 14.10.06 of Dr. Jana, Smt Dey had undergone USG in 2003, Appendectomy , Lap cholie in 1998 along with suffering from heavy menstrual bleeding for several years. The insured suppressed all this material facts and disease/ treatment taken by Smt Jayanti Dey before taking the Insured policy on 3.2.05. The policy was renewed after lapse of 11 days from the date of expiry. A fresh policy was issued for the period from 14.2.06 to 13.2.07 although pre-existing disease was not disclosed even after renewal of the policy. The said pre-existing disease of the insured came to the knowledge of the insurer only when the insured made a mediclaim.



3. Due to heavy menstrual bleeding of Smt Jayanti Dey, she was treated by Dr. Sudhangshu Sekhar Jana, Gynecologist on 4.2.06 who referred her to Dr. Goutam Khastagir after prescribing some medicines. Dr. Khastagir examined her on 14.10.06 and 9.12.06 and as per his advice Smt Dey was admitted at Bellevue at Kolkata on 2.1.07 and had undergone Laparoscopic Hysterectomy operation on 4.1.07 and she was released therefrom on 7.1.07. An amount of Rs. 73,732/- was spent by her for the treatment and she preferred a claim of this amount from OP No 1 who repudiated the claim alleging that she had pre-existing disease which she had suppressed at the time of taking the policy.



4. OP No –1 contested the case by filing a written version denying the material averments of the complaint. It was admitted that at the time of the operation of the Complainant No-2 the policy was valid. She had been suffering from heavy menstrual bleeding for several years prior to taking the policy. This was suppressed by her while obtaining the said mediclaim policy. OP No –2 (TPA) did not appear to contest the case. The case was heard by the Forum below exparte against it.



5. The Complainants have examined three witnesses in all in support of their case. They have also filed several documents. The OP No-1 has not examined any witness to substantiate their case. PW-1, Dr. Sudhangshu Sekhar Jana in his examination stated that the patient had complaint of severe menstruation and this was the symptom which was written on the left side of the prescription. This symptom may arise at any time but may not be chronic or may be chronic but may arise at any time. In his cross examination he further stated that as he had referred the patient to another doctor he did not advise her for clinical investigation. PW-2, Debobrata Dey one of the Complainants spoke in his cross examination that it was not a fact that his wife had the same disease prior to obtaining the policy. PW-3 one Dr. Tanmoy Kr Chakrobarty, retired MO (Gynecologist), posted at M.R. Bangur Hospital , Kolkata stated that variation of bleeding at the time of menstruation is a symptom not a disease . Definitely, this variation may occur differently to different persons. A lady having history of excessive or less bleeding cannot be said that she had the pre-existing disease. The lady who had already given birth to 2 issues may have or may not have pre-existing disease. In his cross examination he further stated that he differed from the opinion that the disease was pre-existing. He had perused the opinion of the 3rd party which was reflected in Genins India Ltd and opined that he did not agree with the opinion as it did not disclose the specific disease. He further averred that symptom can say that something is wrong but signs confirm the disease, not the symptoms.



6. The Forum observed that the aforesaid evidence did not disclose that the Complainant No-2 had knowledge of her pre-existing disease at the time of taking the mediclaim policy. Heavy menstruation was not a disease. It was a symptom. After the clinical examination the disease could be detected. OP No-1 was to prove that the Complainant no –2 had pre-existing diseases and she had knowledge of the same which were suppressed by her at the time of taking the policy. But OP No-1 could not prove the above contentions by any oral or documentary evidence. To the contrary, it was the Complainant’s case that she had no pre-existing disease as alleged by OP No –1.



7. We have heard the parties to this case at length and have perused the impugned judgement of the Forum below. Admittedly, the mediclaim policy was effective when Smt Jayanti Dey took admission at the Bellevue Clinic for her treatment. The Appellants relied heavily on the fact that Smt Dey was suffering from heavy menstruation bleeding for several years and this was suppressed by her at the time of taking the policy. The evidence of Dr. Tanmoy Kr Chakrobarty retired M.O (Gynecologist) was very revealing. He has categorically stated that variation of bleeding at the time of menstruation is a symptom and not a disease. A lady having history of excessive or less bleeding cannot be said that she had the preexisting disease. According to him symptom can say that something is wrong but signs confirm the disease, not the symptoms. Heavy menstruation is not a disease. It is a symptom and only after clinical examination the disease can be detected. We have no reasons to ignore the aforesaid averment. Accordingly, it is difficult for us to allow the instant appeal. The impugned order of the Forum below does not therefore suffer from any infirmity or illegality.



8. It is accordingly, ordered that the appeal be dismissed on contest without cost. The impugned order of the Forum below is affirmed.





Member Member President