State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. & ... vs Mr. Debiprasad Deb & Another on 19 October, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 SC.CASE NO. FA/ 197/2011 (Arisen out of judgement dt. 23.12.10 in Case No. CDF/Unit-II/C.C.No. 177 of 2010 of DCDRF, Kolkata, Unit-II) DATE OF FILING : 08.04.2011 DATE OF FINAL ORDER: 19.10.2012 APPELLANTS 1. The New India Assurance Co. Ltd. Divisional Office 510500 Through Divisional Manager 28, C.R.Avenue P.S. Bowbazar Kolkata-700 012. 2. Regional Manager The New India Assurance Co. Ltd. 4, Mangoe Lane Kolkata-700 001. RESPONDENTS 1. Mr. Debiprasad Deb S/o Late Lalit Mohan Deb W2C-2/8/8, Phase II Golf Green Dist. Kolkata West Bengal Pin-700 095. 2. Medicare TPA Services Pvt. Ltd. Flat No. 10, Paul Mansion, 6-B, Bishop Lefroy Road Kolkata-700 020. BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE APPELLANT : Mr. N.R.Mukherjee, Ld. Advocate FOR THE RESPONDENT : Mr. Arnab Chakraborty, Ld. Advocate : O R D E R :
Mr. J.Bag, Ld. Member The preaent appeal is directed against the judgment dt.
23.12.10 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit II in their CDF Case No. 177 of 2010 in the matter of Mr. Debiprasad Deb (Complainant ) -vs-
The New India Assurance Company Limited and others (OPs). The Ld Forum by allowing a complaint filed by the Respondent No.1 directed the Appellants /OPs to pay jointly and severally the medical expenses amounting to Rs. 1,43,741/- to the Respondent No. 1/ Complainant and Rs. 10,000/- as compensation for causing undue harassment and mental agony and also directed the Proforma Respondent / OP No. 3 to pay Rs. 1000/- as cost of proceedings. All such payments were directed to be paid within a period of 30 days from the date of communication of the order failing which the OP / Proforma Respondent shall be liable to pay interest @ 10% p. a. on the total claim amount of Rs. 1,43,741/- ( one lakh forty three thousand seven hundred and forty one ) only from November 14, 2009 till the date of actual payment.
The facts and related points that have been brought up in this appeal are as follows:
The Respondent No. 1 / Complainant purchased a Mediclaim Policy of the Appellant / OP No. 1, that is , the New India Assurance Co. Ltd. in the year 1994 upon completion of all necessary formalities and has been continuing the policy upon payment of requisite premia every year and as such the policy has been renewed every year, the latest Policy No. being 510500/34 /09 /1100004999 valid from 23.02.2010 to 22.02.2011. The sum insured is Rs. 2,00,000/-. The Respondent No. 1 was assured cashless facilities in case of hospitalization for treatment purpose. The Respondent / Complainant being diagnosed in August, 2009 to have Choroidal Neovascular Membrance in his right eye by the doctors of Sankar Netralaya, Kolkata underwent Fundus Fluorescein Angiogram on 01.08.2009 was further advised to undergo Lucentis Injection which was done under local anesthesia in the right eye. He was admitted in Sankar Netralaya on 05.08.2009 and was given the said treatment. The Respondent was discharged from the Hospital on 06.08.2009. During the hospitalization the Respondent / Complainant incurred expenses to the tune of Rs. 1,28,162.75.
After detection of the disease and prior to admission in the hospital, the Respondent / Complainant duly intimated the Proforma Respondent / OP No. 3 and requested for cashless benefits. The said Op No.3 by their letter dated 31.07.2009 declined to give cashless facility, but clarified that the denial of cashless facility shall not prevent the Respondent / Complainant from seeking necessary medical attention or hospitalization. The Complainant after his discharge from the hospital lodged a claim on 01.09.2009 with the OP No.3, namely Medicare TPA Services (I) Pvt. Ltd. The said OP by a letter dated 04.09.2009 repudiated the claim on the ground that intravitreal injection of Lucentis is not payable as per NIA circular dated 19.02.2009. The Respondent pleaded ignorant about the circular dated 19.02.2009 and emphasized that there were no exclusion clauses in this regard in the policy placing the claim of the Respondent / Complainant outside the coverage of the Policy . The Respondent No.1 / Complainant was again advised on two subsequent occasions by concerned doctors to undergo similar treatment of intravitreal injection of Lucentis and incurred expenses worth Rs. 8,617/- and Rs. 6,962/-. He preferred claim for reimbursement of such amounts, but each time his claim was repudiated on the same ground that the circular dated 14/19.02.2009 was the bar to such reimbursement.
The Respondent No. I / Complainant having no other alternative lodged a consumer dispute complaint with the Ld. District Forum. In spite of due service of notice the Appellant / OP-1 and Proforma Respondent / OP-2 did not appear before the Ld. District Forum. The OP-3, namely, Medicare TPA Services (I) Pvt. Ltd. appeared and filed a written version denying and disputing the material averments. The Proforma Respondent / OP -3 took the plea that the TPA can deny the cashless facility when the process carries a high risk, adding that Intravitreal injection of Lucentis is not payable as per NIA Circular dated on 19.02.09. Hence the claim is rejected as per Policy norms. They also referred to another Circular bearing No. HO/ HEALTH/ CIRCULAR/04/2009IBD ADMIN: 14 DATED09/02/ 09 and vouched for repudiation of the claim of the Respondent / Complainant. No copy of the circular, however, appears to have been forwarded by the authorised agency of the Insurance Company to the Complainant.
The Ld. District Forum observed that the insurance company remained unrepresented all along and the Proforma Respondent / Op-3 preferred to stay away from the proceedings after submission of their written version. They took note of the repudiation letters issued by the OP No. 3, contents of which have been mentioned above. They also observed that no copy of the NIA circular could be placed by the OP-3 along with their written version and the Policy brochure is quite silent with regard to the exclusion of such eye treatment as has been mentioned in the repudiation letters. The impugned judgment was passed ex parte and the Appellant preferred to come up with the Appeal.
In their Memo of Appeal the Appellant-Insurance Company has argued that (1) the complaint suffered from misjoinder of parties as the Appellant, New India Assurance Company Ltd., was not to be made liable for the alleged repudiation of the claim of the insured complainant by the OP No-3 who is an independent authority to deal with the claim and that (2) no appeal being preferred before them by the Complainant against the repudiation as per clause 13 of the Policy terms and conditions, the decision of the Proforma Respondent / OP-3 not being ratified by them in appeal did not stood final.
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Decision with Reasons :
We have gone through the Memo of Appeal along with the complaint and annexures thereto and the impugned judgment, perused the written arguments submitted by the Appellant and the Respondent No. -1 and heard the Ld. Advocates appearing for both the Appellant and the Respondent. It reveals from Clause 1.0 of the Mediclaim Policy (2007), which is mainly relied upon by the Appellant appearing before us, that the Insurance Company undertakes, subject to fulfillment of conditions therein, to pay to the Hospital / Nursing Home / Day Care Centre or reimburse the insured person through the Company / Third Party Administrator (TPA) such expenses as would be admissible. Under Clause 13.0 the expression TPAs are authorized to repudiate claims if they are not admissible as per the terms and conditions herein may be put the other way round to suggest that TPAs are not authorized to repudiate claims if they are admissible as per the terms and conditions as explicitly stated in the Policy. The terms and conditions of the Mediclaim Policy (2007) as they stood prior to and at the time of entering into the insurance contract by the Insurance Company and the Respondent are such as have neither been amended by the Insurance Company no brought to the knowledge of the Respondent. What the Ld. Advocate appearing for the Respondent tried to impress by citing the judgment of the Honble Supreme Court 1997 /0/ AIR (SC) 408 / (1996) 2 CPC(SC) 310 /(1998) @ CLT (SC) 1996/7JT 503/ 1996/SUPREME 620 United Insurance Co. Ltd. vs-
M.K.J. Corporation , is
5. It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties.Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary . Just as the insured has a duty to disclose, similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured
6. The duty of good faith is of continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent. The materiality of a fact is judged by the circumstances existing at the time when the contract is concluded There is no whisper, nothing of a sort under Clause 13.0 of the Mediclaim Policy (2007) that the Third Party Administrator could repudiate claims of the insured with reference to any future circular going beyond the terms and conditions of the said Mediclaim Policy. The Insurance Company can not disown their responsibility to ensure that the contract as mutually agreed to and as not altered till date is carried out in good faith. The repudiation of the claims of the Respondent / Complainant by the Proforma Respondent / OP-3 by citing a circular which goes against the terms and conditions of the concerned Policy is an example of deficiency of service and of unfair trade as well on the part of both the Appellant and the Proforma Respondent herein. We are not agreeable to interfere with the impugned judgment in the circumstances as stated.
Hence, it is ORDERED that The Appeal be and the same is dismissed on contest without any cost. The impugned judgment stands affirmed.
MEMBER MEMBER