Ld. Advocate(s)

                                                For Complainant: Mukbul Rahaman

                                                For OP/OPs : Rajkumar Mondal

                        Date of filing of the case                        :04.07.2022

                        Date of Disposal  of the case                   :26.07.2024

Final Order / Judgment dtd.26.07.2024

           The repudiation of the claim of the complainant  dragged him to file the present case against the OP. The concise fact as narrated in the complaint of this case is that the complainant Sudip Kumar Roy purchased mediclaim policy on 30.03.2015 vide policy no. 0200396599 of TATA AIG insurance in his personal name and for his daughter Aishwarya Roy and spouse Jhuma (Goswami) Roy. The said policy was renewed from time to time up to 21.04.2021. The OP did not hand over the policy paper for the period 20.09.2020 to 20.09.2021. But the premium amount was deducted due to covid-19 . Subsequently, the said Mediclaim policy was ported to Star Health and Allied Insurance Company being OP no.1 from 22.04.2021 to 21.04.2022 vide policy no P/191132/01/2022/000293 previous policy number was 0238455397 of Star Health and Allied Insurance Company Limited in the name of the complainant Sudip Kumar Roy and  his spouse and defendant child  with coverage of Rs. 10,00,000/- and it was valid for 22.04.2021 to 21.04.2022. Before purchasing the said insurance policy the complainant and other insured were Sound Health. During continuance of the last policy on 21.04.2022 the daughter of the complainant namely Aishwarya Roy fell ill due to being pain and swelling both lower limbs. She was medically treated at AMRI Hospital Kolkata and admitted on 20.06.2021 and discharged on 26.06.2021 and again admitted at Medica Super Specialty Hospital Kolkata on 23.08.2021 and discharged on 30.08.2021. Therefore, the complainant claimed cashless benefit under the said policy through AMRI Hospital Kolkata and Medica Super Specialty Hospital, Kolkata   but the OP no.1 Star Health and Allied Insurance denied the said claim on the ground that after scrutiny of the details claim of the insured is not admissible on the ground that TMT report which was before inspection of Policy. This was not disclosed during Policy inspection. So the claim cannot be paid. So the request for cashless treatment is denied. Thereafter, the complainant paid all the bills to the hospital and submitted all documents for reimbursement of mediclaim. Total amount of bill paid by the complainant is 2,69,797/- out of which Rs. 83,548/- to AMRI Hospital and Rs.1,86,249/- to Medica Super Specialty Hospital  Kolkata. The complainant sent all the bills and medical documents to OP no 1 but they did not repay the bill. The OP no. 1 thereafter, sent the letter on 21.10.2021 by which the claim of the complainant was rejected. The said repudiation of the claim is not proper because first policy was started in 2015 and it was ported from TATA AIG Insurance. The OP therefore, acted in a manner which caused harassment, mental agony and suffering. So the present case is filed. The cause of action arose on 21.10.2021 for rejection of the claim. The complainant prayed for an award for Rs. 2,69,797/-  together with interest towards actual medical claim, Rs. 1,50,000/- towards loss and damages, harassment and mental agony  and litigation cost.

 The OP no. 1 contested the case by filing W/V wherein they challenged the case as not maintainable on the ground that it is bad for defect of the parties and there is no cause of action. Positive defence case of OP no. 1 is that the complainant along his spouse and daughter purchased insurance policy for Rs. 10,0000/- for a period 22.04.2021 to 22.04.2022 .It was ported from TATA AIG Insurance . The claim was raised during 4 month of policy. The Insured Ms Aishwarya Roy was admitted for treating Systemic Lupus Erythematosus (SLE) Nephritis with Anemia and Thrombocytopenia   at AMRI  Hospital.

 OP no. 1 was approached for availing cashless facility at that time the initial amount claimed was 90,000/- .  On scrutiny certain queries were raised through letter dtd. 21.05.2021 demanding some documents. Subsequently the reminder was sent by letter dtd. 26.06.2021 to submit the documents along with discharge summary, final bills past treatment papers and indoor case papers. But after perusing the document the claim was denied. Thereafter, the complaint submitted the document for reimbursement of medical expenses for Rs. 38,150/- after scrutiny it was observed from prescription dtd. 19.06.2021 that insured   has headache which was treated as Migraine for past 3 months since the Month of 2021. So the insured was already symptomatic of SLE prior to taking the policy which was not disclosed since inspection. OP acted within the parameter of policy condition. The proposer had a duty to disclose material fact before buying the insurance policy. He should provide correct details regarding the pre-existing diseases.   As per clause 3 (1) of the policy expense related to the treatment of pre existing diseases shall be excluded until expires of 48 months of continuance coverage. The terms and condition of the Policy were explained to the complainant at the time of proposing the policy. There is no deficiency in service. So the OP no. 1 claimed that the case is liable to be dismissed with cost.

 OP no. 2 also contested the case by filing W/V wherein they denied the allegation. Positive defence case of the OP no. 2 is that there is no allegation against OP no. 2 TATA AIG insurance company and as such there is no deficiency in service. OP no. 2 is not necessary party to this case.  The Present claim is not applicable against OP no.2. There is no cause of action against OP no. 2. OP no. 2 worked within the terms and condition of the subject policy. The OP no. 2 claimed that the case is liable to be dismissed against the OP no. 2.

 After going through the entire case record, pleading of the parties the commission considers that following points should be ascertained for proper adjudication of this case.

Points for Determination

Point No.1.

Whether the present case is maintainable in its present form and prayer.

Point No.2.

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

Point No.3.        

To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

Ops challenged the case as not maintainable on the ground that the present case is bad for defect of the party. In course of argument Ld. Defence counsel did not advance any argument in regard to maintainability of this case. However, it is admitted fact that the complainant purchased the insurance policy from the OPs which was ported to OP no. 1 from OP no.2. So there is a relation of consumer and seller.

 Both the parties reside within the territorial jurisdiction on of this Commission. The amount of relief claimed in the instant case falls within the purview of this Commission.

 Accordingly, having considered the fact and circumstance and the observation made here in above the Commission finds that there is no legal hindrance to the maintainability of this case. Accordingly, it is held that the present case is not barred under any provision of law.

 Therefore point no. 1 is answered is affirmative and decided in favour of the complainant.

Point No.2 and 3

 Both the 2 and 3 are very closely inter linked with each other and as such these are taken up together for brevity and convenience of discussion.

 It is the admitted fact that the complainant ported insurance from OP no. 2 to OP no. 1. The complainant in order to substantiate the case proved the following documents in course of trial of this case.

 No. 1: Original policy of TATA AIG in the name of complainant,  his wife Jhuma (Goswami) Roy and daughter Aishwarya Roy.

NO. 2: Policy certificate of TATA AIG for 2016 to 2017.

No. 3:  Policy certificate of TATA AIG 2017 to 2018.

 No. 4:  Policy certificate of TATA AIG 2018 to 2019.

 No. 5: Original copy of policy certificate of Star Heath.

 No. 6 :Discharge certificate of AMRI hospital.

 NO. 7: Bill for Rs. 83,548/- of AMRI hospital.

 NO.8:   Discharged summary of Medi super facility hospital.

 NO. 9: Bill of M super facility hospital for Rs. 1,86,248/-

 No. 10: The reimbursement of medi claim dtd 06.09.2021.

 NO. 11: Repudiation letter dtd. 21.10.2021

 No. 12: Copy of Aadhaar card.

  The entire case of the complainant centres around the main points that the claim was repudiated by the op no. 1 on the ground of non- discloser of previous disease. Best documents in this regard is Annexure 11 which is the repudiation letter issued by Op no. 1 Star Health Allied Insurance Company Limited dtd. 21.10.2021. After perusing the said document it transpires that the claim was repudiated due to not non-discloser of pre-existing disease. OP no. 1 company stated inter alia that as per the condition no.12 in the policy, the company  may cancel this policy on the grounds of non discloser of material fact  as declared  in the proposal  form/ claim form at the time of  claim  and  non cooperation of the insured by sending 30 days.

 Ld. Adv for the counsel argued that insured may come to new insurance company by means of porting but he must disclose the previous disease.

 Ld. Defence counsel argued that the complainant or insured daughter had no knowledge about the pre existing disease. He further argued that minor headache is ever existence by and large over most of the people. It cannot be considered as a pre- existing disease. 

In order to ascertain the real claim of the complainant let us have close scrutiny of the medical documents. The complainant proved the medical certificate of the insured.  As per annexure: 6 medical certificates (discharge certificate) of AMRI disclosed the disease as SLE Systemic Lupus Erythematosus (SLE) Nephritis with Anemia and Thrombocytopenia. The prescription of Dr. Sima Dutta Roy disclosed about headache for last 2 to 3 months. The said insured patient was medically treated by Dr. Sima Dutta Roy on 19.06.2021. 3 month back to that means since March 2021 the insured had headache but the original insurance was registered / purchased on 30.03.2015 and it was continued from time to time with OP no. 2 TATA AIG till 22.04.2021. So at the time of registering the insurance policy she had no occasion to feel about any headache and any ailment. So the plea of the op no. 1 that the complainant had knowledge about the disease of the insured is not acceptable.  Insured was ported to OP no.1 on 22.04.2021. The cause for which the claim was repudiated is questioned by the Ld. Adv for the complainant on the ground that porting is the continuation of a insurance policy. It is not new insurance policy.

 Argument is reasonable and acceptable. When the original policy was purchased the insured had no knowledge about the pre existing disease.

 Porting of insurance policy is continuation of the original policy and as such even if for the sake of argument if it is presumed that on 22.04.2021 the insured had headache, it cannot be attributed upon the complainant that he voluntarily suppressed the said pre-existing disease.  An ordinary person cannot diagnose cause of headache. Most of the people suffer minor headache for different reasons occasionally.  Doctor  is the best person  to find out the reason as such headache until and unless  the acute disease  is detected, the  other  side effect of the  main disease  may not be  known to the insured  until and unless the Doctor diagnose it. Ld. Adv for the complainant argued that the actual disease is SLE Nephritis with anemia and Turombocytopenia. In the medical prescription there is no mentioning about the said pre-existing disease.

 OP no. 1 could not substantiate that the complainant had knowledge about the said disease of the insured. The OP no. 1 repudiated the claim on the ground that insured patient had SLE for more than 3 months but the medical prescription and other documents do not disclose that the said disease is pre-existing for more than 3 months. Moreover the prescription of Dr only discloses about headache for 2 to 3 months and it was treated. Migraine is common disease among the female.

 Ld. Adv for the complainant rightly argued that the OP could not substantiate that the insured had pre-existing disease which was within the knowledge of the  complainant .

 Ld. Adv for the complainant further referred to one decision reported in 2021 (3) C.P.R 409  where in Hon’ble NCDRC held that disease  insured not suffering from any disease  at the time obtaining policy. The appellant issued ported mediclaim in continuation of the original policy. The period of 2 years expired. Policy was questioned for the first time in repudiation letter. Not proved that disease insured concealed about his disease in proposal form.

 Hence reimbursement of claim upheld.

 The said case law squarely applied here and it is relied on.

  Thus having assessed the entire evidence in the case record and the observation made here in above the commission comes to the finding that the complainant successfully proved the case against OPs up to the hilt.

  Thus the OP no. 1 had acted with the complainant in a manner which tantamounts to deficiency in service. In the result points no. 2 and 3 answered in affirmative and it is decided in favour of the complainant.

 Consequently the complainant case succeeds on contest with cost.

Hence,

It is

Ordered

that the complaint case no.CC/21/2023 be and the same is allowed on contest against the OP no. 1  with cost of Rs. 5,000/-  and dismissed against   OP no. 2. The complainant do get an award for a sum of Rs. 2,69,797/- together with interest  @ 12 % per annum from OP no. 1 from 30 .08.2021, Rs. 50,000/- towards deficiency in service and mental pain and agony and Rs. 5000/- towards litigation cost . OP no. 1  is directed to  pay Rs. 3,24,797 + interest as above  to the complainant within 30 days from the date of passing the final awards till the date of its  realisation failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the final  awardtill the date of its realisation.

All Interim Applications (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.         

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)        ................................................

                                                                                                                          PRESIDENT

                                                                    (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

                                                                                                   .......................................................................                                                 

MEMBER                                                                

(NIROD  BARAN   ROY  CHOWDHURY)