Date of filing of the case : 01.10.2018
Date of Disposal of the case : 28.10.2022
Final Order / Judgment dtd.28.10.2022
- This is a complaint u/s 12 of the consumer protection Act 1986 lodged by aforesaid complainant namely Ranta Chakraborty through her husband Sumbhu Nath Chakraborty by executing a letter of authorization before this Commission against Branch Manager M/S Star Health and allied Insurance Company Limited alleging deficiency of service.
- Complainant alleged that he is the consumer and OP is the service provider under the consumer protection Act 1986.
- Fact of the case as it transpires from the petition of complaint that complainant had purchased a Medical Insurance Policy amounting to Rs.2,00,000/- name and styled as SENIOR CITIZEN, RED CARPET HEALTH INSURANCE POLICY. Complainant incurred medical expenditure amounting to Rs. 3,11,676/-. Insurance company repudiated that claim of the complainant is not acceptable on the reason of not discloser of pre-existing decease. Before granting of policy OP was satisfied with the prescription of doctor for pre-existing decease and after receipt of the policy amount of Rs. 10,000/- gave the aforesaid policy.
Complainant was hospitalized and medical operation was done for dislocation of left arm and continued further treatment.
As per clause of the policy complainant was entitled to Rs. 2,00,000/ ( two lakhs) from the OP.
4. Complainant prayed the following reliefs:-
(a). Payment of insurance sum of Rs.2,00,000/- from the OP.
(b) Interest @ 12 % per annum.
5. (a). OP contested this case by filing W/V contending inter-alia that present complaint is not maintainable it its present form , complainant has no cause of action to file this case , complaint is misconceived, malafide and motivated one, complaint is bad for defect of parties, complaint is barred by law of limitation, complaint is barred by principle of estoppels, waiver and acquisance.
He also denied the allegation of petition of complaint.
(b). He admitted that complainant is a medical policy holder in respect of policy No. P/191132/01/2018/001175 for the period from 21.12.2017 to 20.12.2018 against the proposal of the Complainant subject to the term condition, limitation and exception to the policy.
In the present case it was found from the related documents that the policy holder has not declared details chronic in fact in both basal ganglia and in fronto parietal region, small vessal ischemic changes (relating to Ms/Mrs. Ratna Chakraborty) which was found to be pre-existence at the time of taking the policy of the first time during 21.12.2017 to 20.12.2018 and which is amount to non disclosure of material fact. Notice was given to the policy holder for cancelling of the above policy and as per terms and condition of the policy OP cancelled the said policy with affect from 26.05.2018.
As the alleged policy was cancelled by the OP so there was no question of consider of any benefit in respect of the said policy. Alleged policy was already cancelled, as such there was no relation in between Complainant and the OP so, and Complainant is not entitled to any benefit under the provision of C.P. Act. There was no any laches and /or any deficiency in service on the part of the OP.
7. (a) the following points have been framed for discussion :-
POINTS:-
- Is the case maintainable?
- Has the complainant any cause of action to file this case?
- Is the case barred by any law?
- Is the complainant consumer and OP is the service provider under the Consumer Protection Act 1986?
- Is the complainant entitled to get the reliefs as prayed for?
- To what other relief or reliefs is the complainant entitled ?
8 (a) To prove the case Mr. Shambu Nath Chakraborty, on behalf the complainant filed one statement supported by affidavit on 12.04.2021( affidavit sweared on 01.04.2021).
OP files questionnaires and Mr. Shambu Nath Chakraborty, gave answer of the questionnaires. One Sudesna Bhattacharya on behalf of OP filed an affidavit in chief along with some documents.
Subsequently on 29.06.2022 Mr. Shambu Nath Chakraborty, also filed one statement supported by affidavit and with some document.
8(b) Complainant produced the following documents:-
i. Argument at the hearing on 01.08.2022
ii. Senior Citizens Red Carpet Health Insurance Policy. (Xerox)
iii. Reminder for returned of documents. (net copy)
iv. Copy of prescription of Ratna Chakraborty dtd. 21.07.2017, 08.12.2017, 02.01.2018. (Xerox)
v. Discharge certificated dtd. 16.01.2018. ( Xerox).
` vi. Documents of Institutes of Neurosciences Kolkata dtd. 11.08.2018. ( Xerox).
vii. Documents of Institutes of Neurosciences Kolkata dtd. 31.01.2018. ( Xerox).
viii. Documents of Institutes of Neurosciences Kolkata dtd. 31.01.2018. ( Xerox).
ix. Documents of Institutes of Neurosciences Kolkata dtd. 15.01.2018. ( Xerox).
x. Documents of Institutes of Neurosciences Kolkata dtd. 14.01.2018. ( Xerox).
xi. Documents of Institutes of Neurosciences Kolkata dtd. 11.08.2018. ( Xerox).
xii. Documents of Institutes of Neurosciences Kolkata dtd. 11.08.2018. ( Xerox).
xiii. Documents of Institutes of Neurosciences Kolkata dtd. 13.01.2018. ( Xerox).
xiv. Documents of Institutes of Neurosciences Kolkata dtd. 12.01.2018. ( Xerox).
xv. Documents of Institutes of Neurosciences Kolkata dtd. 13.01.2018. ( Xerox).
xvi. Documents of Institutes of Neurosciences Kolkata dtd. 08.02.2018. ( Xerox).
xvii. Letter of S. N. Chakraborty dtd. 09.02.2018. ( Xerox).
xviii. Documents of Institutes of Neurosciences Kolkata dtd. 17.02.2010. ( Xerox).
xix. Documents of Institutes of Neurosciences Kolkata dtd. 07.02.2010. ( Xerox).
xx. He also failed original prescriptions of Dr. Tapan Trivedi dt.21.06.2017, 19.07.2017 ,18.10.2017 and 08.12.2017.
8(c) Complainant filed BNA in support of the case along with some documents.
OP also filed BNA in support of the case along with some documents.
DECISION WITH REASONS
Point no. 1 :- At the time of hearing contesting OP did not raise any point alleging that the case is non maintainable. Moreover on perusal of pleadings, evidence and documents of both the parties we do not find that the case is non maintainable.
Accordingly, we are of the opinion that the present case is maintainable in its present form.
Point no:-2
Complainant alleged in the complaint that he was entitled to get policy amount i.e
Rs.2,00,000/- from the OP but did not get the same from the OP, hence he filed this case before this commission on 20.09.2018 which was registered before this commission on 01.10.2018.
On perusal of record we find that Complainant filed this complaint within the statutory period.
Accordingly we are of the opinion that the complainant has cause of action of file the present the case.
Point no. 3:-
During the hearing OP did not alleged that the case is barred by limitation. Moreover on perusal of case record we find that complainant has filed this case within the period of limitation.
Accordingly, we find that complainant filed this case within the period of 2 years from the date of first cause of action i.e 02.04.2018.
Accordingly, we are of the opinion that the present case is not barred by limitation.
Point no.4 and 5 :- These points are taken up for consideration. At the time of hearing Ld. ADV. for the OP argued before this Commission that the present case is defective one and same is not tenable at all. He further argued that Ranta Chaktobarty is the insurer of the alleged medical policy. She paid the insurance amount and procured the policy but she did not lodge the present complainant by putting her signature in the petition of complaint. He further argued that in the petition of complaint name of the complainant has noted as Ratna Chakraborty but her husband S.N. Chakraborty put signature over the petition of complaint. He further argued that due to this defect present complaint has no leg to stand.
In reply Mr. S.N. Chakraborty, husband of the complainant submitted that his wife namely Ratna Chakraborty purchased the alleged medical insurance policy. Said policy was issued on 21.12.2017.After issue of the aforesaid policy she was fallen over land on 01.01.2018 and continued her treatment before Institute of Neuroscience Kolkata. She continued prolonged treatment there but she has no capacity to move. If she had capacity to move then she could come to this Commission for filing of the petition of complaint. As she had no capacity to appear before this Commission physically she authorized him to lodge this complaint and executed letter of authorization in his favour duly authenticated by Notary Public.
We have carefully gone through the said document and find that policy holder of the alleged policy Ratna Chakraborty executed the said letter of authorization in favour of her husband Shri Sumbhu Nath Chakrabory. She stated in the letter of authorization that Shri Sumbhu Nath Chakrabory shall conduct her case in all respect, shall file evidence, shall sweared affidavit and shall do lawful work in respect of the case on her behalf.
The Consumer Protection Act 2019 is a beneficial legislation. This act has been enacted for the protection and interest of the consumers and for getting timely and affectively justice in respect of consumer disputes. In the present case husband of the policy holder being authorized person lodged the present complaint on behalf of his wife namely Ranta Chakraborty.
In view of the aforesaid discussion we do not find any illegality. Accordingly, we do not find any merit in the submission of Ld Adv. for the OP and same is not accepted.
On perusal of the pleadings of both the parties we find that it is admitted position that complainant after payment of premium amount Rs.9,978/-purchased one policy namely SENIOR CITIZEN, RED CARPET HEALTH INSURANCE POLICY vide no.P/191132/01/2018/001175 from the office of OP and OP issued the said policy dtd. 21.12.2017.
Said document has produced before this commission. On perusal of the said document we find that period of insurance from 21.12.2017 10.00 hours to midnight of 20.12.2018.
It is also admitted position that said policy was purchased from the office of OP on 21.12.2017 and commencement of risk was started from 21.12.2017.
Complainant purchased the aforesaid policy after paying one time premium i.e Rs.9,978/- and policy was valid for one year i.e up to midnight of 20.12.2018.
It is the contention of the complainant that being policy holders of the aforesaid policy she is the consumer under OP and OP is a service provider. It is the case of the complainant that during the policy period i.e within the period 21.12.2017 to 20.12.2018 complainant was fallen and sustained injury and she was admitted at Institute of Neuroscience Kolkata on 11.01.2018 and she was treated there till 16.01.2018 and incurred expenditure amounting to Rs. 23,651/- . She was also admitted in Institute of Neuroscience Kolkata and surgery was done there and relating to the said surgical operation she was treated there as indoor patient for the period from 28.01.2018 to 17.02.2018 and incurred expenditure amounting to Rs.2, 68, 622/-. She incurred total expenditure amounting to Rs. 2, 92,273/-. She claimed the insured amount from the OP during the treatment period as cashless facility but OP vide his letter dtd. 08.02.2018 denied the cashless facility and by the said letter directed the Complainant to go for reimbursement. Subsequently when complainant claimed policy amount of Rs.2, 00,000/- from the OP as reimbursement then op denied the reimbursement vide his letter dtd. 17.04.2018. In the letter dtd. 08.02.2018 OP denied the cashless facility alleging that patient is a known case of Parkinsonism.
In letter dtd. 17.04.2018 OP denied the reimbursement and alleged that in the document of Institute of Neuroscience Kolkata it has mentioned that treatment of complainant is follow up case of Parkinsonism. In the said letter it has alleged that decease parkinsonism was within the knowledge of complainant and she suppressed the same at the time of purchase of policy for the period from 21.12.2017 to 20.12.2018.
I have carefully gone through the discharge certificate of the complainant relating to her treatment from 11.01.2018 to 16.01.2018 at Institute of Neuroscience Kolkata. In the said document it has noted that complainant was presented before them with the complaints of fall followed by disorientation for 10 days.
During treatment period they advised some investigation and pathological examination.
I also find that city scan was done at Institute of Neuroscience Kolkata on 12.01.2018. After city scan of brain Dr. found “old lacunar infarcts are noted in both bassal ganglia. Patchy ischemic changes is noted in both fronto- parietal white matter”.
It is the case of the complainant that at the time of aforesaid examination of city scan of brain it was detected that complainant is a patient of Parkinsonism.
It is the case of the OP that at the time of purchase of policy complainant was suffering with Parkinsonism and she suppressed the said fact before them.
On careful perusal of medical prescription of the complainant dtd. 21.06.2017, 19.07.2017, 18.10.2017 and 08.12.2017 we find that complainant was continuing her treatment before Dr. Tapon Trivedi.
Said Doctor examined the complainant on 21.06.2017, 19.07.2017, 18.10.2017 and 08.12.2017.
During the examination of the complainant on those 4 days Dr. Tapan Trivedi did not found any symptoms of Parkinsonism.
If Dr. Trivedi found the symptoms of Parkinsonism during his treatment period then he would definitely noted the same in his prescription.
On careful perusal of prescription of Dr. Trivedi we do not find any such note.
On perusal of prescription of Dr. N.K.Roy dtd. 02.01.2018 we find that complainant was fallen on the previous date i.e on 01.01.2018 and for that reason she came before the said Doctor.
Aforesaid city scan of brain was done of 12.01.2018.
So, it can be said that till 08.12.2017 complainant had no symptom of Parkinsonism.
Said symptom was at fast detected on 12.1.18 at the time of city scan of brain before Institute of Neuroscience Kolkata . I find from the prescription dt. 02.01.2018 that on 01.01.2018 complainant fallen on the land and sustained swelling injury over occipital region. So, it may be that on that time complainant sustained brain injury and became the patient of Parkinsonism. Doctor of Institute of Neuroscience Kolkata at the time of issue of discharge certificate noted that after examination of the patient it was detected that complainant is a patient of Parkinsonism with demancia- vascular.
So, during the treatment at Institute of Neuroscience Kolkata for the period from 11.01.2018 to 16.01.2018 it was detected that complainant Ranta Chakraborty is a patient of Parkinsonism with demancia-vascular. Before the said treatment complainant Ranta Chakraborty was continuing her treatment before doctor Tapan Trivedi and on that time Doctor Tapan Trivedi did not get any symptoms that complainant Ratna Chakraborty was suffering with Parkinsonism with demancia-vascular.
So, it is clear before the commission that at the time of purchase of aforesaid medical policy i.e on 21.12.2017 or immediately before that date complainant Ranta Chakraborty was not suffering with Parkinsonism with demancia-vascular and complainant Ratna Chakraborty became the patient of Parkinsonism with demancia-vascular after the date of purchase of aforesaid policy.
This commission is on the further view that at the time of issue of aforesaid medical policy OP had enough opportunity for arrangement of medical examination of the complainant Ratna Chakraborty by a competent doctor as per their choice but they did not do so. Even they did not make any arrangement for medical investigation of complainant Ratna Chakraborty for detection of any decease under the supervision of medical officer as per their choice but they did not do so. On perusal of the proposal form(xerox) produced by the OP it appears before the commission that complainant Ratna Chakraborty honesty confessed that she was suffering with diabetes , high blood pressure and cholesterol .
On perusal of letter of the OP dt. 10.02.2018 and 17.04.2018 we find that OP refused the cashless facility as well as reimbursement alleging that complainant was suffering with Parkinsonism with demancia-vascular at the time of purchase of policy on 21.12.2017 but they failed to prove the said allegation by independent documentary evidence or independent oral evidence.
We have stated earlier that this commission did not find any evidence that complainant Ranta Chakroborty was suffering with Parkinsonism with demancia-vascular at the time of purchase of aforesaid medical policy i.e on 21.12.2017.
Accordingly we find that OP failed to establish the justified reason by which they refused the reimbursement of insurance claim of the complainant.
Entire dispute in between insurer and insured. In view of the section 2 i.e definitions of C.P.Act 1986 it is clear before us that OP is the service provider and complainant is the consumer. There points are thus decided in favour of the complainant.
In view of the aforesaid discussion we are of the opinion that op without any valid reason refused the reimbursement or the medical insurance claim in favour of the complainant Ratna Chakroborty by their letter dt. 17.04.2018.
Having considered the pleading of both the parties, evidence on record, document of the parties and after consideration the brief notes of argument of both the parties, and oral submissions of both the parties, we are of the considered view that complainant Ranta Chakraborty is entitled to policy amount i.e amount of Rs. 2,00,000/- out of his total medical expenditure amounting to Rs. 23,651/-+ Rs.2,68,622/= Rs.2,92,273/-(Two lakh ninety two thousand two hundred seventy three) relating to her indoor treatment before Institute of Neuroscience Kolkata for the period from 11.01.2018 to 16.01.2018 and 28.01.2018 to 17.02.2018 in connection with medical insurance policy for the period from 21.12.2017 10.00 hour to midnight of 20.12.2018 .
Point no 6:- This point is taken up for consideration. But on careful perusal of pleadings of both the sides, evidence on record and BNA of the parties we are of the considered view that complainant is not entitled to any other relief or reliefs. This point is thus disposed of.
All the points have disposed of.
Having considered the entire matter we are of the view that Complainant Ratna Chakraborty is entitled to policy amount of Rs.2,00,000/-( Two lakh only) along with further interest @ 9% per annum from 17.04.2018 (i.e from the date when re-imburshment was refused) till the date of actual payment from the O.P. Due to aforesaid deficiency in service on the part of the OP complainant compelled to come before this Commission and the present litigation has arisen.
Accordingly, we are of the opinion that the complainant in entitled to cost of Rs. 10,000/- for the present litigation.
Hence, it is,
Ordered,
That the present case vide No. CC/ 164/2018 be and the same is allowed on contest against OP with cost to Rs.10,000/- to be paid by the OP in favour of the complainant within 30 days.
OP is further directed to pay Rs. 2,00,000/- ( two lakh only) along with interest @ 9% per annum from 17.04.2018 ( i.e from the date when re-imburshment was refused) till the date of actual payment in favour of complainant Ratna Chakraborty as compensation within 30 days failing which complainant Ratna Chakraborty shall have liberty to put this order into execution.
Let a plain copy of this final order be supplied to the parties / their Ld. Advocates / agents forthwith free of cost or send by ordinary post.
