District Consumer Disputes Redressal Forum

Dakshin Dinajpur

Surya Sen Sarani Municipal Building, 1^st Floor, Balurghat Dakshin Dinajpur Pin - 733101.

Telefax: 03522-270013

Consumer Complaint No.: 03 / 2007

Order No. 19

Dt. 16.07.2008

Present (1) Sri S. K. Ghosh - Presiding Member

(2) Samiksha Bhattacharya - Lady Member

Counsel(s) (1) Sri Bidyut Kr. Roy - Advocate for the complainant

(2) Sri Goutam Das - Advocate for the OP.

This is to consider an application U/s 12 of the C.P. Act, 1986 filed by the complainant praying for bonafide claim amount of Rs.1,43,971.55 only with accrued interest towards his medical treatment and for compensation of Rs.5,000/- only towards mental pain and agony.

Facts of the case, in brief, is that the complainant is a Mediclaim Policy holder with OP NIC vide Insurance Policy Certificate vide No.:100301/48/05/8500000742. The said policy was also covered all the family members of the complainant viz. Kakali Banik (wife), Trishita Banik (daughter). That all on a sudden on 25.08.2005 the complainant felt in sick and he was admitted into the District Hospital Balurghat, Dakshin Dinajpur on the same day wherein he was treated under Dr. Saikat Kundu for two days and thereafter the complainant was referred to Kolkata for further treatment. The complainant was admitted in S.S.K.M. Hospital, Kolkata on 29.08.2005 wherein he was treated upto 09.09.2005.

It is for the first time that the complainant was suffering from heart ailment and accordingly plantation of pacemaker of the complainant was done on 05.09.2005 through surgery by Dr.S.S. Chatterjee in S.S.K.M. Hospital, Kolkata and the complainant was discharged on 09.09.2005. The complainant spent a sum of Rs.1,43,971.55 towards his medical treatment. The complainant submitted his claim application on 01.11.2005. The OP NIC made correspondence with the complainant asking him to submit some information / papers for processing and settlement of claim. Accordingly the complainant submitted all the relevant papers, information as desired by OP NIC. The opposite party repudiated the claim alleging that the ailment of the complainant was pre-existing by their letter dated 23.11.2005. The OP again sent a letter on 24.05.2006 stating that the claim of the complainant is still under process and asked the complainant to submit the documents once again relating to his treatment. The complainant sent a reply on 11.06.2006 and subsequently sent so many reminders on several occasions for getting the claim amount. But in vain. The complainant also served demand notice to the OP through his Ld. Advocate on 20.11.2006 which was duly received by the OP NIC on 22.11.2006. But in spite of receiving of the said notice the OP kept mum about the matter. Hence the application.

The OP NIC contested this case by filing written version stating inter alia that the OP NIC always made correspondence with the complainant through letters. The OP NIC asked the complainant to submit relevant medical papers for processing the claim and also for consideration of claim. The complainant failed to provide medical documents generated between the period from 25.08.2005 to 29.08.2005. The TPA observed that the claim is not payable for submission of insufficient medical documents. OP NIC sent all medical papers to panel Doctor viz. Sri Tapan Kr. Chowdhury who opined that all medical papers of Balurghat Hospital from 25.08.2005 to 27.08.2005 are very much required. On 23^rd December 2005, the OP NIC repudiated the claim as the medical opinion was given by the panel Doctor that it was a pre-existing disease. Moreover, the complainant did not supply all papers to the TPA or OP NIC and hence the claim is not payable to the complainant. The amount claimed by the complainant is too high the complainant suppressed the truth and within 2 months from the date of commencement of policy the complainant went to Hospital for his treatment. Thus, it is pre-existing disease and hence the complaint is liable to be rejected. The OP NIC stated that there is no gross negligence or deficiency in service on the part of OP NIC.

In view of the contentions of the both parties following points arose for consideration :-

1. Whether the consumer-complainant is entitled to get any relief as prayed for?

2. Whether there is any deficiency in service or gross negligence on the part of OP ?

Decision with reasons:

Point Nos. (1) & (2): Both parties file relevant documents at the time of hearing which are kept with the record.

We have considered the submission of both sides with reference to the materials on record.

We heard contentions of Ld. Counsels for both parties and perused all material documents produced before us with reference to relevant provisions of law. The Ld. Forum perused the stay in certificate, District Hospital, Balurghat, Dakshin Dinajpur issued by Medical Officer, District Hospital Dakshin Dinajpur. It appears from the said certificate it is clear that the complainant was admitted in the said hospital on 25^th August 2005 under the treatment of Dr. Saikat Kundu, and he was discharged from the hospital on 27.08.2005. The complainant was suffering from vertigo symptomatic sick sinus syndrome. The Ld. Forum also perused the graph in respect of E.C.G. of the complainant. The Ld. Forum draws the attention in the prescription dated 25.08.2005, requisition Form in respect of Echo-Cardiography and X-ray of chest dated 26.08.2005. The Ld. Forum summoned the Superintendent, District Hospital Balurghat, Dakshin Dinajpur and asked to appear positively in person or by duly authorized agent before this Forum on 20.05.2008 along with all original treatment sheet of Shri Pronab Kr. Banik. The Superintendent, Balurghat Sadar Hospital is present before the Ld. Forum on 20.05.2008 along with all original treatment sheet of Shri Pronab Kr. Banik, complainant in this case. The Ld. Forum perused all original treatment sheet of the complainant such as : -

1. The record of In-patient issued by Medical Officer, Balurghat District Hospital dated 26.08.2005 as well as counter signature of the visiting staff Kali Banik,

2. History sheet & clinical notes of the complainant dt. 25.08.2005, 26.08.2005 etc.

3. Referral card vide Regd. No. 20206 dated 27-08-2005 showing the referring Hospital i.e. Balurghat District Hospital,

4. Data by referring M.O.

5. E.C.G. Graph

6. Prescription dated 25.08.2005

7. Requisition form in respect of Echo-cardiography and X-ray of chest dated 26.08.2005

8. Admission and discharge certificate of District Hospital Balurghat, Dakshin Dinajpur etc.

From the above discussion, it is clear that the complainant was treated under Dr. Saikat Kundu for two days and thereafter the complainant was referred to Kolkata for further treatment.

The complainant was admitted into S.S.K.M. Hospital, Kolkata on 29.08.2005 wherein he was treated up 09.09.2005. It is also admitted fact that the complainant is a Medical Policy holder with OP NIC vide Insurance Policy Certificate vide No.100301/48/05/8500000742 wherein the policy period stating 13:45 on 20.06.2005 to Midnight of 19.06.2006.

From the above discussion it is clear that the complainant was medically treated during the policy period mentioned above. The Ld. Forum perused the repudiation letter dated 23.12.2005 vide claim ID Kol 61737 wherein the reason for rejection was recorded in the following manner :-

“As per our medical opinion the present hospitalization is for the management of an ailment, which is related to a pre-existing condition. Hence we regret to inform that your claim is repudiated.”

In this regard it is the view of the Ld. Forum that generally it is not possible for all normal human beings to know the symptoms of disease in his / her human body at the time of commencement of the policy. In this particular case, the complainant is a normal human being having no knowledge of medical science. So it is our view that the complainant became aware of his illness after investigation of different Doctors not before the commencement of said policy. So it does not amount to suppression of material facts of prior illness in the proposal. It is the duty of OP Ins. Co. to prove that the complainant became aware regarding his ailments before commencement of the said policy by adducing evidence specifically. But the OP Ins. Co. fails to do so. Moreover, any opinion or report obtained by the Ins. Co. for the settlement of Insurance claim has no evidentiary value before the Ld. Forum. In this instant case the Insurance Co. had failed to establish that the complainant was having a heart disease prior to taking the policy. Thus, the Insurance Co. was deficient in service for not settling the claim of the complainant properly. It is also the view of the Ld. Forum that in a given case person filing up the proposal Form may also suppress giving the name and address of the family Doctors, or in a yet another given case such person desiring to be insured may not have a family doctor and or may not have gone to any Doctor for any disease which he might have suffered in the past but then such eventualities do not exempt Insurance Co. from taking the necessary precautionary steps in process of finding out whether the proposer suffers from any disease at the time of filling up the proposal Form by referring him to the trusted Doctor of its choice on Company’s panel so as not to be taken by surprise and duped at the end. That particular duty was not performed by the OP Ins. Co.

Moreover it is found that some disease may be silent in nature and the patient cannot feel any pain or any physical problem. Sometimes, some diseases are to some extent mild in nature that the patient cannot aware regarding his/her ailments.

Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Ins. Co. relies on their clause 4.1 of the policy in a malafide manner to repudiate all the claims.

No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.

From the above discussions the Ld. Forum hold and conclude that it is not a case of pre-existing disease and it is our view that the consumer-complainant is entitled to get relief as prayed for as well as there is a gross negligence and deficiency in service on the part of OP NIC as the repudiation of claim is not proper and justified. Point Nos. (1) and (2) both are decided accordingly on the basis of aforesaid findings.

O R D E R E D

That the Consumer Complaint No. 03/2007 is allowed on contest with cost of Rs.1,000/- assessed by the Ld. Forum.

That the OP NIC is hereby directed to pay claim amount of Rs.1,43,972.00 towards medical expenditure and compensation of Rs.1,000/- within 45 days from the date of order.

That the OP NIC is hereby further directed to pay claim amount of Rs.1,43,972/- + cost of Rs.1,000/- + compensation of Rs.1,000/- i.e. total of Rs.1,45,972/-(One lakh forty five thousand nine hundred seventy two) only within the prescribed period of time. If not paid within the prescribed period of time the total amount shall bear interest @ 8% p.a. till full payment.

That the case could not be disposed of within the specified period of time as the Ld. Advocates took adjournments in several times.

Let a copy of this order be supplied to the parties free of cost.

By order of this Forum

I agree,