State Consumer Disputes Redressal Commission
Sujit Bose vs United India Insusance Co. Ltd. on 30 July, 2008
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO-300/A/06 DATE OF FILING : 22.8.06 DATE OF FINAL ORDER:
30.7.08 APPELLANTS/COMPLAINANTS :
1. Sri Sujit Bose C.O Shri Durga Atta Mill, Dr. Kalinath Road, Khalpara, Siliguri-734405 W.B. RESPONDENTS/O.P.S : :
1. United India Insurance Co Ltd.
(a) The Chairman, United India House, 24 Whites Road, Chennai-600014 (TN)
(b) The Branch Manager, 142, Hill Cart Road, Siliguri-734401. W.B.
2.
Mitras Clinic and Nursing Home, Hakimpara, Siliguri- 734001.
(Proforma Respondent/OP) BEFORE : HONBLE JUSTICE :
MEMBER : Shri. A.K.Ray MEMBER : Shri. P.K. Chattopadhyay.
FOR THE PETITIONER / APPELLANT :
P.D. Dalmia (Advocate) FOR THE RESPONDENT / O.P.S. : S. Ray Chowdhury (Advocate) Shri A.K.Ray., Member, The appeal is directed against the order dated 28.7.06 passed by the Dist Forum , Siliguri in consumer case no 36/S/05 wherein the complaint was dismissed on contest without cost.
2. Being aggrieved by the said order the Appellant has preferred the instant appeal mainly on the grounds that the Ld. Forum misconceived the whole facts and circumstances of the case and also failed to apply its judicial mind in coming to the decision. The Forum should have held that the rules, norms and guidelines as framed by the statutory body, Insurance Regulatory and Development Authority,( IRDA) is applicable on both the insurer and insured and nobody else has any right to violate those rules, norms & guidelines . Non-settlement of claim or rejection of claim within 30 days as per regulation 9(5) of Insurance amounts to deficiency in service. Insurer failed and neglected to reject the claim within 30 days as per the said regulation of IRDA. The surveyor has no role to play in the case of mediclaims as there services are required for fire, theft, pilferage , flood, loss in transit and similar nature policies. The Ld. Forum below ought to have held that the so called investigator , who had no licence from IRDA , was only appointed for the purpose of repudiation of a genuine and legal claim of the Complainant.
Moreover, the so called investigator/surveyor Mr. Chris Mansukhani did not investigate personally and so he had no personal knowledge and as such his report should not have been accepted. Mr. Mansukhani was summoned by OP no 1 but he failed to come forward before the Forum below for deposition. So, his investigation report carried no weight and should therefore be rejected. The alleged report of the investigator was not reliable as there was no name of the representative of the investigator and family members of the insured from whom the alleged mentioned information was gathered. Even the said report of the investigator was not supported by any affidavit. It was therefore nothing but a worthless piece of paper. The so called investigator had no authority to avail the service of a doctor of his choice without obtaining permission from the insurer. Thus the investigator was biased and had personal interest in availing the service of Dr. Atanu Bhattarchaya who was not a TB specialist nor a COPD specialist. This the report of the investigator and that of Dr. Atanu Bhattacharya were not acceptable when lung specialist , TB specialist and COPD specialist were readily available in Siliguri and as Mr. Mansukhani could not get favourable report from them, so he took the opinion of Dr. Bhattacharyya as per his will to safeguard his personal gain and interest. The Ld. Forum grossly erred in relying on the report of the said investigator and Dr. Bhattacharyya and on the basis of their report in rejecting the genuine claim of the Complainant / Insured. It was admitted by both the doctors that HRCT report was not final. So, the opinion of Dr. Atunu Bhattacharyya was not correct and full proof. HRCT report and discharge certificate are not sufficient to frame an expert opinion. The insurer had failed and neglected to refer the matter to the panel of medical practitioners as provided in clause 4.2 ( exclusion clause ) of the policy. There was nothing on record and there was no reliable document to hold that there was pre-existing disease and the Complainant had any knowledge of his pre-existing disease or any symptom or complaint thereof at the time of making the proposal on 7.3.02 for insurance to Op No-1. The Complainant was not suffering in the past, so how could he or his son could give past history of any ailment. Coughing of blood was sudden and the same was the Complainants present ailment or disease; accordingly it was disclosed at the time of admission. Ld. Forum was wrong in holding that the Complainant was given all drugs for bronchitis when neither the attending physician Dr. C.P. Sharma confirmed nor Dr. Atunu Bhattacharyya confirmed it,nor any treatment paper as originally produced by the proforma OP No-2 , lying on record, revealed. Foracort ( Inhaler) is the only long life medicine for Bronchitis and the said medicine was not used by the Complainant prior to 7.3.02 or thereafter as the same was prescribed by the attending physician Dr. C.P Sharma on 25.12.03 only for one month. At that time the Complainant developed respiratory trouble and the Foracort was stopped and discontinued on 31.12.03 as would be quite evident from the discharge certificate ( back page) and as such there was no pre-existing disease and the claim is payable by the insurer. Although 3 diseases had been mentioned in the discharge certificate but as per deposition of Dr. C.P Sharma and also from the treatment papers , it was quite evident that Dr. Sharma gave medicine for TB only and not for any other disease as mentioned in the discharge certificate. Dr. Atunu Bhattacharyya admitted that he was a cancer specialist and as such other cases of lung, TB, COPD were being referred to other specialists at Siliguri . So, his report was not complete, full, final and absolute. There are several kinds of bronchitis; but Dr. Bhattacharyya failed to say from which type of bronchitis the Complainant had been suffering which was the root cause of TB. The patient/ Complainant was attending the Dist Forum regularly and he was looking quite OK. He was not using any inhaler . So, the statement of Dr. C.P Sharma was believable that the Complainant got fully cured within 6 months.
The Complainant was not suffering in the past nor he received any treatment in the past, nor he consulted any doctor in the past , nor he had any positive knowledge of existence of any disease in his body; so there was no wrong in keeping column nos 15 & 17 of the proposal form blank which means negative answers. The observations of the Forum at page 8 of the judgement that the complainant had knowledge of his previous ailment of coughing of blood and hospitalization was wrong. Such observation was based on surmise and conjecture . It was also a wrong and baseless observation of the Forum below that previous hospitalization for coughing of blood was disclosed by the family members of the Complainant. There was no such finding of the so called investigator in his report. The Ld. Forum misunderstood the whole facts and circumstances of the case. For the first time Dr. C.P Sharma treated the Complainant ;then how could he say that the Complainant had tendency not to disclose his present or previous ailment. The insurer failed to prove without any doubt that the Complainant had willfully suppressed the facts of previous ailment at the time of making the proposal. There was no independent and unbiased finding in the report of the investigator as he failed to collect information about the Complainants health from his neighbours, friends, relatives and form the nursing home and doctors. The Forum should have believed the statement of the attending physician Dr.CP Sharma that he did not prescribe Foracort ( inhaler) for whole life to the Complainant and he did not treat him for bronchitis. He accordingly, has moved the State Commission to direct Respondent no-1 to pay a sum of Rs. 49,378/- as per bills and claim submitted with interest from 05.01.04 to 04.07.05 along with compensation of Rs. 25,000/- with adequate costs.
3. The Complainant was holder of a mediclaim insurance policy by renewal every year within time. The policy under which the instant claim arose was for the period from 7.3.03 to 6.3.04 for which he paid premium of Rs. 2,266/- on 6.3.03. Suddenly , in the morning hours on 10.12.03 bleeding started from his mouth and nose. He took admission in Mitras Clinic and Nursing Home at Siliguri at about 5.30 a.m , he was kept in ICU and was discharged from the nursing home on 25.12.03 .For his treatment at the said nursing home he had to incurr an expenditure of Rs. 49378.60/-. Claim was preferred along with necessary documents before the Siliguri branch of United India Insurance Company on 5.1.04 . OP/Insurance Company appointed one Mr. Chris Mansukhani as an investigator; the said investigator met the Complainant for enquiry about his past ailment when the Complainant replied in the negative as he did not take any medicine in the past for any ailment. This was the first time that he had to undergo any treatment. The surveyor demanded a sum of Rs. 15,000/- for submitting a favourable report. He reported the incident to the grievance cell at Channai but without any result .As the insurer failed to settle the claim within 60 days from the date of filing of the claim, the Complainant filed his case before the Forum below . OP No-1(a) /Chairman and 1 (b) Branch Manager of the Insurance Company filed a joint W.V denying all material allegations. It was alleged in the joint W.V that during investigation by their appointed investigator it was found that the Complainant had suffered from old kochs disease and HRCT chest revealed that left upper lobe fibro calcific process with traction bronchitis which was consistent with old kochs. The Complainant suppressed the said existing disease for illegal gains.
4. In their brief of written argument filed before us on 26.11.07 the Respondent Insurance Company stated amongst others that the Appellant took a mediclaim policy from the Respondent for Rs. 50,000/-from 7.3.02 to 6.3.03. The said policy was renewed from 7.3.03 to 6.3.04. During pendency of the policy, on 10.12.03 the Appellant was admitted to Mitras Nursing Home at Silgiuri for treatment as he was bleeding from nose and mouth . After discharge he lodged a claim for reimbursement of his alleged expenses with the Insurance Company. The claim was repudiated on the basis of documents furnished by the Appellant. It was established from the documents that he had been suffering from TB before inception of the policy. TB is the root cause of the fibro calcific process with traction bronchitis consistent with old cochs. The claim was rightly repudiated and there was no deficiency in service on the part of the Insurance Company.
5. The Forum below dismissed the complaint on contest. The Appellant did not challenge before the Dist Forum that he was not suffering from old kochs disease i.e Tuberculosis. The Appellant had suppressed his present and previous disease while taking admission to Mitras Clinic and Nursing Home . The medicines prescribed by the doctor of the said nursing home was for the treatment of bronchitis. Foracort was prescribed by the doctor as it was the only treatment for bronchitis. Dr. Atunu Bhattacharyya clearly opined that the diagnosis of Dr. C.P Sharma rightly pointed out that it was a sequel to TB in the past. The said report of Dr. Atunu Bhattacharyya was based on HRCT report and the discharge certificate of the nursing home. It was also revealed from the report of the investigator that the members of the family of the Appellant had stated that the Complainant/Appellant had suffered from TB. Dr. C.P Sharma also deposed that all tests and examinations conducted diagnosed the Appellant as a patient of TB. It was not necessary for physical examination of a person for giving opinion. It can be given by studying and examining HRCT report and treatment papers of the nursing home. The claim was repudiated on the basis of the documents , such as , HRCT report, discharge certificate and the medicines prescribed by the attending doctor. The HRCT report and the discharge certificate clearly showed that he had TB before taking the policy and the said TB was the root cause of the disease for which the Appellant had sought for reimbursement under the policy .Thus there was no infirmity in the order passed by the Forum below and the appeal should be dismissed.
6. The Appellant further stated in his appeal that the mediclaim policy in question of the Complainant (64 years) and his wife Smt Maya Bose ( 60 years) for Rs. 50,000/- each commenced from 7.3.02 to 6.3.02. There was no claim during the said period and as such the said policy was renewed from 7.3.03 to 6.3.04. A bonus amount of Rs. 2,500/- was also allowed in each case raising the policy amount to Rs. 52,500/-.
7. In the past, the Appellant suffered from no disease /ailment ; so the question of producing past record of treatment or disclosures of past disease did not arise at all. The patient /Appellant started bleeding from mouth and nose and was admitted to the nursing home. Admission sheet was prepared with the following notings :
(i) Chief complaint ; coughing of blood since one hour.
(ii) History of present illness :Sometimes suffering from cough.
(iii) Past and family history ;- Blank (the son of the Complainant, Sri Subir Bose signed the said admission sheet on 25.12.03).
(iv) Provisional diagnosis ; under investigation.
(v) Treatment on admission ; as advised by Dr. C.P. Sharma .
(vi) As there was no past and family history of any illness suffered by the Complainant then how could he disclose the past and family history. As a result the said column was left blank by the nursing home. For the attending doctor , the first and primary duty was to stop bleeding and for that purpose the Complainant was kept in ICU.
Dr. C.P Sharma, the Appellant continued , was summoned and he gave his evidence on 12.1.06. Relevant portion of his deposition was produced below for ready reference: the patient was provisionally diagnosed as a patient of Haemoptysis i.e coughing of blood. The admission sheet contained the day to day treatment of the patient from 10.12.03. In the treatment sheet dated 15.12.03 the patient was diagnosed as a patient of haemoptysis. At the time of admission the patient did not disclose any history of his present or past ailment nor did he disclose any medical treatment. The HRCT chest test did not disclose that the patient was suffering from bronchitis for the last 2 years, since it was a clinical diagnosis. The HRCT report was not final . After all tests and examination he was diagnosed as a patient of TB and accordingly anti TB drug was applied and the patient responded to it. After 6 months of taking anti TB drug he was cured; so he was given a certificate of cure. 6 to 9 months treatment cures TB Completely. Chronic bronchitis requires life long medicine i.e inhaler. He ( Dr. Sharma) did not advice the patient/Sujit Bose any life long medicine.
8. In his cross examination Dr. Sharma deposed inter alia that Mr. Bose ( Appellant /Complainant) was not a patient of bronchitis and as such he was not given treatment for bronchitis. For bronchitis there must be symptom for more than 2 years. Only treatment for bronchitis is inhaler and he never prescribed inhaler for the patient. After discharge , he was asked to use inhaler for one month as at that time he was suffering from respiratory trouble. No a fact that the patient was suffering from bronchitis COPD and as such in the discharge certificate he advised him to use inhaler for one month.
9. The Appellant further submitted that on behalf of the Respondent /Op No-1 two witnesses viz Mr. Chris Manshukani ,the investigator, and Dr. Atanu Bhattacharyya were summoned .The investigator Sri Chris Manshukani failed to attend the court on the date fixed. Dr. Atanu Bhattacharyya was not a panel doctor of the Insurance company. But his services were utilized by the said investigator to give him his opinion regarding pre-existing diseases suffered by the Complainant/Appellant. Dr. Bhattacharyya gave his opinion on the basis of only two documents , viz , Xerox copies of discharge certificate and HRCT report. He did not examine the Complainant , nor did he peruse the treatment papers; his deposition would speak of it. In the cross examination he admitted that he was a specialist in cancer and not in TB,COPD and old Kochs. HRCT report ( Exhibit- B) did not reveal that the patient had been suffering from bronchitis during the last two years. He further deposed that he did not know whether the Appellant/Patient was suffering from bronchitis. It was not possible on his report to give opinion without examining Sujit Bose and his treatment papers as to whether he was suffering from Pulmonary Cox and chronic obstructive Pulmonary diseases during the last two years from the date of detection i.e 10.12.03 and his report was not absolute.
10. We have heard the parties to this case at length and have perused the impugned order along with other written submissions. The Ld. Counsel for the Appellant filed a decision of the National Commission reported in 1(2008) CPJ 501 (NC) wherein it was inter alia held that 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 Insurance Company relies on their clause 4.1 of the policy in a malafide manner to repudiate the claims. No claim is payable under the mediclaim policy as every human being is born to die and the diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. In any case , it is the contention of the Complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the preexisting disease.
11. Ratio of this case is applicable to a great extent to the instant case. The mediclaim policy in question of the Complainant and his wife ( both senior citizens) was taken wef 7.3.03 for one year. There was no claim during the said period. As such the policy was renewed wef 7.3.03 to 6.3.04 along with a bonus of Rs. 2500/-. The Appellant did not suffer from any disease or ailment. No conclusive documentary evidence could be filed in this regard by the Insurance company. Opinion of the treating doctor, viz, Dr. C.P Sharma who gave his evidence on 12.1.06 was not considered properly by the Forum below which mostly relied on the HRCT report and the deposition of Dr. Atanu Bhattacharyya. Evidently Dr. Bhattacharyya did not examine the patient at any time nor did he peruse the treatment papers. He simply came to a decision on the basis of the HRCT report and Xerox copy of the discharge certificate. He was engaged by the investigator Sri Manshukani for offering his medical opinion. Admittedly he was not a specialist in TB, COPD and old Kochs. He was a specialist in Cancer .We have already delineated the deposition of this doctor in the earlier paragraph. According to him HRCT report was not final and he did not know if the Appellant was suffering from bronchitis and his report was not absolute.
12. As a result, it is very difficult on our part to disallow the appeal as the impugned judgement of the Forum below obviously suffered from infirmities. In the light of what has been discussed above and from the records available before us, in our opinion, the Complainant has proved that he was unaware of the disease at the time of taking the policy.
13. It is accordingly ordered that the appeal be allowed in part on contest without cost. The impugned order of he Forum below be set aside. The Respondent Insurance Company is directed to pay a sum of Rs. 49,378/- as per bills and claim submitted by the Appellant along with interest @ 8% p.a from the date of filing of the complaint before the Forum below till full and final payment within 40 days from the date of communication of this order. We however, award no compensation or cost.
LCR be returned with a copy of this order.
Member Member