FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that his daughter Malabika Gupta has a mediclaim policy no.100400501910002926 was admitted in I.L.S.Hospital Kolkata on 2^nd February, 2020 under-went Laparoscopy Myomectomy Surgery for her heavy periods due to Fibroids in the Uterus as per advice of her consultant Gyane and endoscopic Surgeon, Dr. Aruna Tantia on 3^rd February, 20 and was released on 5^thFebruary,2020 Pre.MRI of pelvic report doctor’s prescription, Discharge summary and surgery certificate are attached with complaint  and on submission of her mediclaim bill under complaint no.HH 112014237 she came to know verbally, without any official communication that her mediclaim amount had been repudiated under newly introduced clause no.4.3(ii) of mediclaim policy which indicates two years waiting period with 20  sub-clauses.  On enquiring about the sub-clause, he came to know verbally it is subclause 4.3(ii) (i) which relates to polycystic ovarian disease and as the ovary and uterus are two different parts in a female reproductive system, he lodged complaint through –a) e-mail on 8^th August,2020 and a hard copy of complaint along with surgery certificate was submitted on 9^th September,2020- No reply received from the respondent and again through email, complainant sent to Deputy General Manager, C.R.O-1, on 24^th Sept. 2020 – No. Reply is received from the respondent and again sent complaint through email to customer relations @nic.co.in CC to smvt@ nic.co.in- No reply is received from the respondent and again sent complaint to IRDAI : complaints @ irdia.gov.in on 20^th Oct, 2020 having ;token No.10-20-012111 – No reply is received from the respondent and finally, escalated the complaint to Insurance Ombudsman, Kolkata, under complaint no.H-048-2021-0231 dated 10^th Nov. 2020 against the respondent. And the complaint was heard ON LINE on 23^rd Feb, 2021 where he participated as the complainant and no officer, on behalf of the respondent, was present over the computer screen.  As a complainant, he mainly discussed about the sub-clause-4.3 (ii)-(i), as informed verbally, under which the mediclaim was repudiated and after receiving the judgment of the Insurance Ombudsman on 12^th March, 2021.  He came to know that the complaint is dismissed without any relief to the complainant under another changed sub clause 4.3 (ii)-(q)-Surgery of Genito Urinary system, from earlier informed verbally – Subclause 4.3 (ii)-(i) – Polycytic ovarian Disease.  The judgement of Insurance Ombudsman is attached herewith and as a complainant, he is very much surprised by knowing officially the change in subclause to 4.3(ii) (Q) –Surgery of genitor-Urinary system for the repudiation.

Now in the female reproductive system there are two openings in Female’s Pelvic Anatomy: Vaginal openings which includes Uterus, ovary and fallopian tubes and urethral openings i.e. Urethra, through which a female allowing urine to exit from the body and the two openings are completely separated and different  having no connection with each other and in Geni to-urinary system-it is composed of kidneys, ureterus urethra.  Ureters are tubes which propelurine from kidneys to urinary bladder and urethra is the tubular path that connects the bladder to the body’sexterior  allowing urine to exit the body and the surgery performed was for the removal of fibroids from the uterus which is in the vaginal opening, there was no surgery in urethral opening, i.e. urethra-allowing urine to exit the body.  The pre-hospitalization MRI of Pelvis report, Doctor’s prescription, discharge summary and post-operative USG Screening report are attached herewith and further as a complainant, complainant urged that when his daughter has repurchased the mediclaim policy after completion of one year no where it is mentioned about the inclusion of sub-clauses/annexure/attachment in/alongwith old/new policy.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs.190279/- and to pay a sum of Rs.100000/- for suffering harassment, negligence and to pay a sum of Rs.10000/- for litigation charges.

Defense Case:-The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that Ms. Malabika Gupta was a National mediclaim policy holder and her policy was in effect from 27.6.2018 to 26.6.2019 – First year policy period, and 27.6.2019 to 26.6.2020 – second year policy period, that is to say that the mediclaim policy was first issued to Ms. Malabika Gupta on 27.6.2018, before which she was not covered under the National Mediclaim policy and it is brought to the kind attention of the Ld. Commission that the MRI Report dated 24.01.2020 which has been submitted alongwith the complaint petition on the page no.2 reads “Mildly bulky uterus with Multiple fibroids in subserous and predominantly intramural locations…” and it is further brought to thekind attention of the Ld. Commission that subsequently the Discharge Summary of the ILS hospitals, Calcutta dated 05.2.2020 which has been submitted along with the complaint petition on the page no.5 reads, “Final diagnosis Multiple Fibroids with endomentrial hyperplasia.. operation done: Laparoscopic Myomectomy + Dilation + Curettage + Endometrial biopsy done under GA 03.02.2020” It is further brought to the kind attention of the ld. Commission that the letter issued by one Dr. Aruna Tantia dated 27.7.2021 which has been submitted along with the complaint petition on the page no.7 reads “that Ms. Malabika Gupta, 38 years was under my treatment and underwent Laparoscopic myomectomy for her heavy periods due to fibroids” and it is an admitted fact that the said Ms. Malabika Gupta is a National Mediclaim policy holder, and as per settled law, in a contract of insurance, rights and obligations are governed by the terms of the insurance contract.  The terms of a contract of Insurance have to be strictly construed and no exception can be made on the grounds of equity.  In this regard the OP insurance co would like to draw the kind attention of the Hon’ble commission to the clause 4 of the National Mediclaim policy, which” reads as follows: “4 Exclusions: The company shall not be liable tomake any payment under the policy in respect of any expenses incurred in connection with or in respect of” and the clause 4.3 of the National mediclaim policy which reads as follows :”4.3 specific waiting period.  Following diseases / treatments are subject to a waiting period mentioned below i) one year waiting period ii) Two years waiting period…(q) surgery of genitor-urinary system excluding malignancy…”

Now the Merriam Webster dictionary defines “Genitourinary”as of or relating to the genital and urinary organs or functions”.  The procedure that the claimant Ms. Malabika Gupta underwent was ‘Laparoscopic myomectomy for her heavy periods due to fibroids’as per letter issued by one Dr. Aruna Tantia dated 27.07.2021, and other documents that have been submitted by the complainant.  The term myomectomy has been defined by the university of California San Francisco (UCSF) as Ä myomectomy is an operation to remove fibroids while preserving the uterus”.  As per the Britannia encyclopaedia, the uterus of a female body is a part of the genital/reproductive system.  From the above it is clear that the procedure of laparoscopic myomectomy is one that involves the Genito-urinary system of the female body, which is the exact nature of procedure that the claimant herein Ms. Malabika Gupta had undergone.  As per the clause 4.3 of the National mediclaim policy, for any claim arising for such a procedure i.e. genitor-urinal surgery there is a specific waiting period of two years from the incumbency of the first policy period.  As per the documents the procedure was conducted on 03.02.2020 which falls within the second year of the policy period i.e 27.6.2019 to 26.6.2020 and accordingly the claim of Ms. Malabika Gupta, the claimant herein had been repudiated very rightfully, and adhering to the terms and conditionsofthe insurance policy contract to which both Ms. Malabika Gupta and this op insuranceco is bound by and as such there is no deficiency of service or malpractice or harassment or negligence by the OP insurance co to the policy holder as has been alleged by the complainant.  In this regard, the op insurance co would beg leave to draw attention of the Hon’ble commission to the Award of the insurance Ombudsman which are described in the w/v.  The Hon’ble Insurance ombudsman has very rightfully, and in adherence to the terms and conditions of the policy observed that the procedure undergone by the claimant falls within the two years waiting period as per policy exclusion clause and as such the same does not come under the purview of policy coverage that is to say that the claim has been dismissed and that there has been no deficiency of service ormalpractice or harassment or negligence by theOp insurance co to the policy Holder, as has been alleged by the complainant and thecomplaint isnot entitled to any amount as claimed for and theclaim isfalse mala fide unjust, illegal, ultra vires to the termsand conditions of the insurance policy contract and manufactured for the purposes ofwrongful gain and is liable to dismissed by the Hon’ble commission with costs op further submits that the claim of the petitioner is not payable as per condition of policy the amount of claim by the petitioner is false fabricated, misconceived, illegal, with mala fide intentions and for wrongful gain.  Thus the petitioner is not entitled to get any claim from this op party as because deficiency of the service does not arise at all.  The statements which are not specifically admitted are denied by this op and the claimants are put to strict to thereof.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Bandel, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the victim patient Malabika Gupta is the daughter of the complainant.
2. It is also admitted fact that said victim Malabika Gupta has her mediclaim policy under the op insurance company.
3. There is no controversy over the issue that  the said mediclaim policy no. is 100400501910002926.
4. There is no dispute over the issue that the above noted mediclaim policy renewed and/ or continued even upto 5^th February, 2020.
5. It is admitted fact that said Malabika Gupta was admitted to ILS Hospital Kolkata on 2^nd February, 2020.
6. It is also admitted fact that the said daughter of the complainant was admitted in the said hospital for her heavy periods due to Fibroids in the Uterus as per advice of her consultant Gyane and endoscopic Surgeon, Dr. Aruna Tantia.
7. There is no controversy over the issue that said Malabika Gupta daughter of the complainant under-went Laparoscopy Myomectomy Surgeryfor her heavy periods due to Fibroids in the Uterus as per advice of her consultant Gyane and endoscopic Surgeon, Dr. Aruna Tantia.
8. There is no dispute over the issue that said daughter of the complainant was released from the hospital on 5^th February, 2020.
9. It is admitted fact that the daughter of the complainant had to undergo post operation treatment and also had to undergo clinical examinations as per advise of the doctor.
10. It is also admitted fact that the complainant had filed claim before the op insurance company claiming medical expenses.
11. There is no controversy over the issue that the said claim of the complainant was repudiated on the ground that the locking period of two years was not over.
12. There is no dispute over the issue that the op insurance company repudiated the claim and thereafter the complainant had lodged several complaint before the op insurance company and to its senior officers but without having any result.
13. It is admitted fact that the complainant thereafter lodged a complaint to the insurance ombudsman on 12^th March, 2021 but the said complaint was also turned down.
14. It is also admitted fact that the complainant finally instituted this case against the op insurance company by claiming Rs. 1,90,279/- and compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/-.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that the op insurance company inspite of existence of valid insurance policy has repudiated the claim of the complainants’ daughter which is nothing but deficiency of service but on the other hand the op insurance company has taken the defence alibi that the claim of the complainants’ daughter is not admissible as per terms and conditions of the insurance policy and so it has been rightly rejected by the op insurance company and for that reason there is no deficiency  of service on the part of the op insurance company.

For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords between the parties and also for the interest of the disposal of the point of consideration nos. 4 and 5, this District Commission after going through the evidence on record and also after examining the documents filed by the contesting parties of this case finds that at the time of admission of the victim (complainants’ daughter) in the hospital and at the time of conducting surgery there was valid insurance policy  and in this regard It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del). Moreoverthe definition of service which is embodied in Section 2 (o) of the Consumer Protection Act, 1986 is very much important.Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service in the matter of not granting claim ofRs. 1,90,279/- to the complainant. So, the above noted issues and/ or points of consideration nos. 4 and 5 which is adopted in this case are decided in favour of the complainant of this case. But this District Commission also finds that the complainant has failed to justify their claim of compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- by placing cogent evidence and so this District Commission is of the view that the complainant is only entitled to get compensation of Rs. 10,000/- for deficiency of service and litigation cost of Rs. 5000/- from the op.

In the result it is accordingly

ordered

that the complaint case being no. 69 of 2021 be and the same is allowed on contest against opposite party but in part.

It is held that the complainant is entitled to get his claim of Rs. 1,90,279/- and compensation of Rs. 10,000/-and litigation cost of Rs. 5000/-from the op.

Opposite party is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.