State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. , ... vs Shri Nemai Chandra Ghosh & Ors. on 19 July, 2013
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 FA/830/2012 (Arisen out of Order Dated 31.07.2012 in Case No.CC/56/2011 of District North 24 Parganas, North 24 Parganas DF) DATE OF FILING : 05.11.2012 DATE OF ORDER:19.07.2013 APPELLANTS : 1. United India Insurance Co. Ltd., 24, Whites Road,Chennai-600014 2. United India Insurance Co. Ltd., Branch office at 7, K.B. Bose Road, 2nd. Floor, P.O. & P.S. Barasat, District 24 Parganas (North) RESPONDENTS : 1. Shri Nemai Chandra Ghosh, Son of Shri Shiba Pada Ghosh, Village Kania, North Para, P.O. & P.S.Gaighata, District North 24 Parganas 2. Vipul Medcrop TPA Pvt. Ltd. of 515, Udyog Vihar, Phase V, Gurgaon, Haryana 122016 BEFORE HONBLE MEMBER :
Sri Shankar Coari.
HONBLE MEMBER : Sri Debasis Bhattacharya.
FOR THE APPELLANTS : MS.SUMITA ROY CHOWDHURY, LD. DVOCATE FOR THE RESPONDENT No. 1 :
MS. LILA DAS, LD. ADVOCATE Sri Debasis Bhattacharya , Member Being aggrieved by and dissatisfied with the order dated 31.07.2012 in Case No. 56/2011 by the Ld. District Forum, North 24 Parganas, the OP Nos. 1 & 2 thereof have preferred this appeal. By the impugned order, the said Ld. District Forum has allowed the complaint on contest against the OPs with costs and directed the OPs jointly and severally to pay the amount of Rs.15,581/-(Rupees fifteen thousand five hundred eightyone) to the Complainant and also to pay a sum of Rs.30,000/- (Rupees thirty thousand) to the Complainant as compensation for mental agony, pain, anxiety and unnecessary harassment caused by the OPs and further to pay a cost of litigation to the tune of Rs.6,000/- (Rupees six thousand) to the Complainant in proportionate share within 30 days/one month from the date of the order, and in event of non-compliance of any portion of the order by the OPs within a period of one month from the date of communication of the order, the OPs have been further directed to pay a sum of Rs.200/- (Rupees two hundred) per day from the date of the order till its realization, as penalty, out of which 50% of such penal amount shall be paid to the Complainant and the rest 50% amount shall be deposited by the OPs in the Consumer Welfare Fund.
The case of the Complainant/Respondent No.1, in his petition of complaint, in short, is that he took an Individual Health Insurance Policy for the first time in 2006-07 and thereafter renewed the same year to year till 2010-11. During the policy period of 2009-10, having policy bearing No.031001/48/08/97/00000872, his son, Jishnubrata Ghosh fell ill and was treated by the local Doctor, who opined for surgery. Thereafter, he took his son to C.M.C., Vellore and the Doctor attached there diagnosed that his son was suffering from Deviated Nasal Septum to right and suggested for surgery, and accordingly SEPTOPLASTY under GA was done on 01.10.2009 and discharged on 07.10.2009. Thereafter, on 19.10.2009, the Complainant intimated to the OP No.2 of the fact of the operation and made an application for Mediclaim in the prescribed form and all the medical papers and other necessary documents were attached with the Claim Form on 30.10.2009. In absence of any response from the OP, he made a reminder to the OP Insurance Company on 30.04.2010 with a request for early settlement of the claim and also visited the office of the OP No.2 on numerous times and met higher officials, but all in vain. Thereafter, all of a sudden, he received a letter from the OP No.2 on 05.05.2010 repudiating the claim on the ground that the nature of the disease was congenital and in view of clause 4.1 of the policy, he was not entitled to get the claim. Accordingly, he went to C.M.C. Hospital, Vellore to take expert opinion and Dr. Rupa Vendantam, Prof. and Head of the Department, ENT Unit-III opined that it would not be correct to describe such disease as congenital. So, he made further application before the OP No.2 on 27.05.2010 with the certificate issued by the said Dr. Vendantam with a further request to settle the claim at the earliest. But, the OP No.2 on 16.08.2010 intimated that the claim was repudiated on the ground of congenital disease by the OP No.3. Thereafter, he approached the Office of the Asst. Director, Consumer Affairs & Fair Business Practices under the Government of West Bengal, but the matter was not settled and he was requested to move the District Consumer Disputes Redressal Forum by a letter dated 02.03.2010. Hence, this complaint with certain prayers.
On the other hand, the case of the OP Nos. 1 & 2/Appellants in their W.V. is that these OPs performed its part and after consideration of the documents and the facts, the OP Insurance Company repudiated the claim of the Complainant with all justifications and these OPs were never negligent. The nature of the disease as disclosed in the medical papers was congenital and the same does not come within the ambit of the policy and clause 4.1 specifically. Thus, OPs have reason that the opinion obtained from Dr. Rupa Vendantam has certainly obtained by influencing the said Doctor and in spite of that the said Doctor does not say that such disease was not congenital. So, these OPs were never negligent and deficient in rendering service towards the Complainant. For that, the case be dismissed with cost.
It is to be seen if the impugned order suffers from any inherent defect so as to refute the same by way of reversal.
Decision with reasons.
Ld. Advocate for the Appellants has submitted that it is a case of Deviated Nasal Septum which is a congenital one, not covered under the policy and in the report of the Doctor submitted by the Respondent No.1, she was not sure if it is congenital or not. So, Respondent No.1 miserably failed to establish his case and his claim was rightly repudiated. Though the Ld. District Forum is not having any medical expertise, how it arrived to the view that Deviated Nasal Septum was not a disease at all, but it is only an abnormality or deformity of the bone of the nose and it is an erroneous conclusion. It is for the Respondent No.1 to prove that he is entitled to get the reimbursement for the coverage. Further, if it is not a disease, then there would not be coverage also. The cashless benefit was not given. Furthermore, after 19 days of operation, the Respondent No.1 informed the Insurance Company. But, it was proper for him to make an intimation before operation. There is no documentary evidence for giving Rs.30,000/- (Rupees thirty thousand) as compensation to the Respondent No.1. As repudiation was correctly made, so question of mental agony etc., does not arise and also litigation cost. The penalty of Rs.200/- per day was imposed beyond jurisdiction as the Insurance Company has got right to go for appeal and, as such, the same is arbitrary. It is also the mandate of the Honble Supreme Court that there should not be any charity of the public money. Honble National Commission also opined in certain cases that the compensation is not to be given only for enrichment of the consumer.
On the other, the submissions of the Ld. Advocate for the Respondent No.1 is that no document is filed by the Insurance Company to the effect that Deviated Nasal Septum is a congenital disease.
There is no proper documentation from the side of the Appellants to make out and substantiate the point that Deviated Nasal Septum is a congenital disease. As per report of Dr. Rupa Vendentam, it may be congenital or not to be so. So, it cannot be said as a hard and fast rule that the disease and/or deformity of Deviated Nasal Septum is a foolproof congenital disease. The Appellants did not venture to produce any medical expert opinion by themselves to say it with certainty that the said disease and/or deformity is a congenital one. Therefore, the findings of the Ld. District Forum in this sphere is correct and should not be brushed aside. But, apart from the amount of the main medical claim of Rs.15,581/-, the other direction of the Ld. District Forum as to compensation and litigation cost along with penalty are required to be modified. Compensation should stand at Rs.10,000/- and the litigation cost of Rs.5,000/- and the penal compensation is revoked.
In the result, the appeal succeeds in part.
Hence, Ordered That the appeal be and the same is allowed in part on contest against the Respondent No.1 and ex parte against the Respondent No.2 but without any order as to cost. The impugned order is modified as below:
The OPs jointly and severally are directed to pay the amount of Rs.15,581/-, a sum of Rs.10,000/- as compensation and litigation cost of Rs.5,000/- to the Complainant within a period of 45 days from the date of this order.
MEMBER MEMBER