State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO.: FA/2008/498 DATE: 05.03.2009



DATE OF FILING: - 30.12.2008



APPELLANT : New India Assurance Company Limited,

8, C.R. Avenue, 4th Floor, Barick Bhawan,

Kolkata-700 072.



RESPONDENT : Sri. Rabindranath Chatterjee,

S/o Late Pulendra Nath Chatterjee,

1, Tilak Road, Kolkata-700 029.





BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A. K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Sri. Prasanta Banerjee, Advocate.



FOR THE RESPONDENT : Sri. Biswajit Roy, Advocate.





-ORDER-

S. Majumder, Member.





This appeal has arisen out of the judgment passed by the Ld. District Forum, Kolkata, Unit-II, on 10.09.2008, in its case no-158/2007, wherein the Forum below allowing the complaint on contest without any cost has directed the OP to pay a sum of Rs.1,00,000/- to the Complainant in settlement of his claim for reimbursement of medical expenses relating to his mediclaim policy along with interest @8% p.a. from 25.04.2007 i.e. from the date of filing the complaint before the Forum below to the date of final payment.



The brief fact of the case of the Complainant before the Forum below was that he purchased mediclaim policy from the OP fro the period from 12.07.2005 to 11.07.2006 and the sum insured was of Rs.1,00,000/-. He took the policy for the first time on 12.07.2000 and thereafter renewed the policy every year till July, 2007. The Complainant filed the complaint for adjudication of claim settlement since decline by the Medicare Services, which was filed before the OP on November, 2005 towards recovery of Rs.100,000/- out of Rs.2,30,000/- and odd for the expenses incurred for the treatment of triple vessel coronaery artery disease at Rabindra Nath Tagore international Institue of Cardiac Sciences. After having intensive diagnostic check up the doctor-in-charge at the said Hospital Dr. Sudip Banerjee came to the finding there is pre-existing disease namely Coronary ailment and hypertension on the patient though no such diseases were never diagnosed and or was within the knowledge of the Complainant since the inception of the mediclaim policy in the year 2000 and, thereafter, at the time of subsequent renewals till hospitalization. Being declining the claim by the OP the Complainant wrote to the Divisional Manager of the OP on 22.08.2006 requesting to reopen the claim in reference to the mediclaim policy. It is stated that the reports of Medicare was done without basis, which is not at all tenable. The OP without applying their mind to the documents in connection with operation associated with the claim, tantamount to deficiency in service. Due to unfair trade practices adopted by the OP, the Complainant suffered tremendous mental pressure apart from financial losses. Finding no other alternative the Complainant filed the complaint before the Forum below praying for direction upon the OP to pay him the sum assured of Rs.1,00,000/- along with interest and litigation cost etc.



Being aggrieved by the above-mentioned judgment the Op-Appellant has preferred the present appeal before this Commission contending that regarding suppression of pre-existing disease of the Complainant the Appellant filed an Affidavit of the doctor which was not challenged by the Complainant by filing counter affidavit. The ld. Counsel for the Appellant has submitted that the contention of the Forum below is not correct that the Appellant has failed to adduce any evidence. The Appellant has further argued that after considering the papers and documents filed by the Complainant the claim was repudiated and as per the opinion of Dr. Subhendu Banerjee the Complainant was suffering from hypertention for about 10 years. Therefore the claim was rejected on the ground of pre-existing disease, which is a strong predisposing artery disease. The insured at the time of taking out the policy suppressed the material facts. So in repudiation of the claim as there was no deficiency in service on behalf of the Appellant, the present Respondent is not entitled to get any amount towards reimbursement due to pre-existing disease and any cost and interest. According to the Appellant the judgment passed by the Ld. Forum is erroneous, illegal and liable to be dismissed and the Appellant has prayed for allowing this appeal.



For adjudication of this appeal we called for the LCR. On careful perusal of the record, documents and the LCR it is seen by us that the Appellant repudiated the claim of the Complainant on the ground of pre-existing disease and thus the complainant filing the complaint challenged the said repudiation. The present Appellant being the OP filing written objection has stated that the Complainant was suffering from hypertension for 10 years i.e. before the date of taking out the mediclaim policy. The OP before the Forum below filed an evidence on affidavit by Dr. Subhendu Banerjee, where the said doctor has mentioned that the Complainant’s disease was a pre-existing one and he was suffering from hypertension for last 10 years. The Appellant took the plea that the Complainant did not challenge the evidence filed by the doctor by filing counter affidavit, but in this respect we are of the opinion that on what basis Dr. Banerjee opined that the disease was pre-existing that document is not before us. We have carefully gone through the LCR, from where it is evident to us that no cogent document, prescription was filed by the OP from where it will be cleared to us that the Complainant was suffering from pre-existing disease. The Appellant has merely alleged that the disease of the Complainant was pre-existing one without adducing any cogent papers and documents. As the allegation came on the side of the OP-Appellant, onus lies on the Appellant to prove that the Complainant was actually suffering from hypertension for last 10 years, as pre-existing disease, before taking out the mediclaim policy. But in this respect the Appellant has failed to satisfy us. We have carefully gone through the repudiation letter dated 18.04.2006 where it is written that the policy is third year, but at the time of his claim the policy was in the fifth year, as the policy was taken for the first time in the year, 2000 and it renewed every year till the date of filing of the claim even after that till the year 2007. It has been mentioned in the said letter that ‘As per Doctor note the patient had hypertension for 10 years and as per the clause 4.1 of the policy condition the claim is not payable due to pre-existing disease’. In respect of the repudiation letter we are of the view that there was no basis of such repudiation, the claim has been repudiated on the basis of a doctor’s note, but on what basis the doctor has drawn the above-mentioned opinion, it is not clear to us as there is no documents, prescription before us from which we can draw the conclusion that the disease was pre-existing. As the Appellant has failed to adduce any cogent document in support of their contention the appeal fails on contest without any cost and as the judgment passed by the Ld. Forum below does not suffer from any infirmity or irregularity, we are not inclined to interfere with the same.



Hence it is ordered that the appeal be dismissed on contest without any cost and the judgment passed by the Forum below is affirmed. The appeal be disposed of accordingly. The office is directed send down the copy of this judgment to the Forum below and issues the same upon the recorded Advocates of both the parties free of cost forthwith.





(S.Majumder) (A.K. Ray) (Justice. A. Chakrabarti)

MEMBER MEMBER PRESIDENT