State Consumer Disputes Redressal Commission
Smt. Usha Das vs National Insurance Co. Ltd. on 30 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/665/2014 (Arisen out of Order Dated 09/04/2014 in Case No. CC/334/2013 of District Kolkata-II) 1. Smt. Usha Das D/o Late Sarat Chandra Biswas, 266/1B, Unique Park, Debalaya, Behala, Kolkata-700 034, P.S. Parnasree. ...........Appellant(s) Versus 1. National Insurance Co. Ltd. Kolkata Regional Office-II, 8, India Exchange Place, 3rd Floor, National Insurance Building, Kol-1, P.S. Hare Street and Howrah Div. Office at 22, G.T.Road(South), 3rd Floor, Howrah-711 101. 2. Medsave Healthcare (TPA) Ltd. A.K. Trade Centre Pvt. Ltd., Camac Street, 3rd Floor, Kolkata -700 016, P.S. Shakespeare Sarani. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Ramprasad Bhattacharya, Advocate For the Respondent: Mr. Niladri Sekher Talukder, Miss. Tanushree Dasgupta.., Advocate ORDER Dt. 30.4.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the order dated 09.04.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in CC No. 334 of 2013, whereby the complaint has been dismissed on contest without any costs against the OP.
The Complainant's case, in brief, was as follows:
The Complainant's mother, namely, Bina Pani Biswas was insured under Sampoorna Arogya Bima Policy (Mediclaim Insurance Policy No. 153500/48/109/8500007984) which was valid for the period from 26.03.2010 to 25.03.2011. Bina Pani Biswas was diagnosed by Dr. Mainul Hossain to have been suffering from Asthmatic Bronchus - LRTI (Left Respiratory Tract Infection ) with CAD (Coronary Artery Disease ) and was admitted in Medi Citi Nursing Home. She remained hospitalized from 09.12.2010 to 14.12.2010. The Medisave Health Care (TPA) Ltd. reimbursed a sum of Rs. 12,537/- in settlement of claimed expenses of Rs.14,114/-. The policy was renewed with effect from 26.03.2011 to 25.03.2012 . The said insured was admitted in the Medi Citi Nursing Home under Dr. Mainul Hossain with diagnosis of COPD (Chronic Obstruction Pulmonary Disease) with seizure disorder and ( Hypertension) for the period from 30.11.2011 to 08.12.2011 and the TPA extended cashless benefit for Rs. 15,000/- for the disease of Acute Bronchitis as noted in the discharge summary. After discharge from the nursing home on 08.12.2011, she was again ill due to severe cold and was admitted to Labbak Medical Centre under the advice of Dr. Mainul Hossain for treatment. TPA denied cashless benefit referring to the Exclusion Clause 4.1 of the policy in regard to pre-existing diseases. The insured died on 23.12.2011 due to 'Cardiac Respiratory Failure in a Case of Hemorrhagic with acute exacerbation of COPD'. A sum of Rs. 64,169/- was paid to the nursing home and other expenses for CT Scan, Ambulance hiring and purchase of medicine had been incurred . A total claim of Rs.90,118/- was sent to the TPA along with claim form on 14.02.12. The TPA asked for a certificate from the treating doctor who had issued such certificate on 21.03.2012 and the same was forwarded to the TPA . But thereafter no response has been received . In another certificate the said treating doctor noted that the patient was suffering from HTN with CAD and COPD. As the Insurance Company neglected to settle the claim in spite of furnishing of all necessary documents , a consumer complaint was filed before the Ld. Forum below.
The OP Insurance Company by filing a written version contended, inter alia, that the complaint was not maintainable as the concerned TPA, being Medsave Health Care (TPA) Ltd., ought to have been made a party separately rather than as an analogous body. As per IRDA rules and guidelines , the entire decision in respect of such settlement of claim is taken by the TPA. It was also denied that no reply was sent to the Complainant in the matter of her claim, as the TPA in their letter dated 28.03.2012 expressed their view in writing that the disease in question was pre-existing and the claim was not admissible as per exclusion clause 4.1 of the policy and the letter , though addressed to the Insurance Company, was sent by Fax to the Complainant. The TPA has not been made a party by the Complainant. The Insurance Company is not responsible for any deficiency in service as complained about by the Complainant.
Ld. Forum below after having considered all material facts and upon hearing of the Ld. Lawyer for the Complainant and after perusal of the letter of the TPA dated 28.03.12 intimating that as per discharge summary and as per documents, the deceased insured suffered from Left Respiratory Tract Infection for two years which was pre-existing in nature at the time of taking the policy for the first time and the Complainant did not disclose that her mother suffered from such diseases as were pre-existing as provided under clause 4.1 of the policy, observed that the disease for which treatment of the insured took place was pre-existing at the time of taking the policy. The complaint was dismissed.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the Appellant has come up before this Commission with a prayer for setting aside the impugned order and for allowing the original complaint.
Ld. Advocate appearing for the Appellant / Complainant submitted that Ld. Forum below wrongly held that the policy which was valid from 26.03.2011 to 25.03.2012 was a new or fresh policy. In fact, the policy which was obtained for the period from 26.03.2010 to 25.03.2011 was renewed upon payment of due premium and at that point of time there was no question of submission of such information as were not asked for. Ld. Forum below did not consider the material facts and the order was passed without giving any opportunity of hearing to the Complainant . There was ex parte argument in respect of hearing of the complainant. There was no suppression of any material fact at the time of taking the Insurance Policy which was valid on 26.03.2011 to 25.03.2012. On the contrary, TPA was silent over the settlement of the claim in spite of several correspondences and visit by the Complainant to the office of the TPA as well as the office of the Insurance Company. No reply accepting or denying the claim has been received from the Respondent which is a clear deficiency in service on the part of the OP. Ld. Advocate also argued that two earlier claims were settled by the OP Insurance Company without raising any question about any pre-existing disease and when the third claim was submitted , the TPA appears to have raised such question with an ulterior motive to deny the claim . Ld. Forum below passed the impugned order without taking into consideration , the such material fact. The impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent Insurance Company submitted that the appeal does not have any merit as the purported claim comes under the scope and ambit of the exclusion clause of the policy for which any claim is liable to be repudiated. It is the settled principle of law that every insurance policy is a contractual obligation between the parties and is binding upon both parties. The terms and conditions of the policy can not be ignored by any one of them. In the present case, it is evident that the insured suppressed her existing diseases of hypertension and respiratory illness which were existing at the time of taking the first policy but which were not disclosed by the insured at that time. Ld. Forum below considered the material fact of suppression of pre-existing diseases and rightly adjudicated the complaint. There is no ground for setting aside the impugned order.
Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint, the written objection filed on behalf of the OP Insurance Company, the affidavit-in-chief on behalf of the Complainant and the policy papers, apart from correspondences between the OP Insurance Company and the TPA.
There is no dispute that the Appellant had obtained an Insurance Policy which was renewed for the period from 26.03.2011 to 25.03.2012. The Complainant's mother was admitted in the hospital under the care of Dr. Mainul Hossain for the period from 30.11.11. to 08.12.2011 with diagnosis of COPD with HTN. The discharge certificate issued by the Medi Citi Nursing Home is corroborative of such fact . In that case, the TPA sanctioned cashless treatment for Rs. 15,000/- without any objection as to the exclusion clause of pre-existing disease. In their claim pertaining to the treatment of the insured for the period from 11.12.2011 to 23.12.2011 , the diseases as mentioned in the medical prescription by Dr. Mainul Hossain were AECOPD with HTN and seizure disorder, which were taken as pre-existing diseases and the claim appears to have been denied on that ground. The grievance of the Complainant was that once the claim for treatment of those diseases was entertained , subsequent claim for treatment of such diseases should have been entertained by the TPA, the policy having been renewed without break. In spite of writing to the TPA as well as the policy issuing office on 15.09.2013 nothing has been heard from either of them. Such act on the part of the Respondents in regard to the claim of the Complainant is a deficiency in service .
Ld. Forum's observation that a new policy was taken by the Complainant w.e.f. 26.03.2011 for one year and the Complainant did not disclose that the insured had been suffering from left respiratory tract infection with CAD and asthmatic bronchitis does not appear to be correct , in so far as the policy in question was neither a fresh one nor a new one. The policy was a renewed one and all necessary information as collected by the Respondent Insurance Company was with the Insurance Company themselves. No document showing that the insured failed or neglected to supply any new information was produced by the Insurance Company before the Ld. Forum below.
The fact goes that the Insurance Company, as alleged by the Complainant / Appellant, has not sent any repudiation letter in spite of repeated request from the Complainant /Appellant. It was only a correspondence from the side of the TPA addressed to the National Insurance Company Ltd, Divisional Office , Howrah, stating that the hospitalization was for treatment of COPD as per the discharge summary and the disease being pre-existing at the time of taking the policy for the first time , exclusion clause No. 2.1.1 of the policy was applicable and the claim was not admissible . The said letter dated 28.03.2012 is, as pointed out by the Appellant , found to have been faxed to the Complainant Appellant on 17.09.13.
It is found that when the first claim or the second claim in respect of reimbursement of hospitalization expenses was submitted for cashless benefit , no question about pre-existing disease was raised. But, when after a gap of 3 days only after the discharge of the insured from the nursing home on 08.11.2011 and the insured was admitted again in another nursing home because of her suffering from similar nature of diseases , the TPA neglected to consider the claim on such ground as not convincing. In the said circumstances, we are not inclined to hold that the Insurance Company had very valid reason to repudiate the claim. Ld. Forum's order suffers from material irregularity and legal infirmity. In that view of the matter , the impugned order deserves to be set aside . Hence, Ordered that the appeal be and the same is allowed and the claim of Rs. 90,118/- as raised by the Complainant shall be paid by the Insurance Company within a period of 40 days form the date of this order , failing which interest @ 8% shall be paid on the said amount from the date of this order till full realization. The impugned order is set aside. There shall be no order as to costs.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER