w w w . L a w y e r S e r v i c e s . i n

The Manager, Claim Star Health and Allied Insurance Co. Ltd. & Another v/s Rathijit Bhattacharjee

Company & Directors' Information:- STAR HEALTH AND ALLIED INSURANCE COMPANY LIMITED [Active] CIN = U66010TN2005PLC056649

Company & Directors' Information:- STAR INDIA PRIVATE LIMITED [Active] CIN = U72300MH1994PTC076485

Company & Directors' Information:- STAR COMPANY LIMITED [Strike Off] CIN = U67120WB1927PLC005620

Company & Directors' Information:- STAR T V PRIVATE LIMITED [Strike Off] CIN = U51395UP1985PTC007023

Company & Directors' Information:- STAR OF INDIA LIMITED. [Strike Off] CIN = U99999CH1946PLC001119

Company & Directors' Information:- A. S. STAR PRIVATE LIMITED [Active] CIN = U74999RJ2016PTC056637

Company & Directors' Information:- STAR O & M PRIVATE LIMITED [Active] CIN = U74999DL2015PTC281303

Company & Directors' Information:- K. D. STAR PRIVATE LIMITED [Active] CIN = U45201GJ2011PTC067973

Company & Directors' Information:- A BHATTACHARJEE & CO PVT LTD [Strike Off] CIN = U26931WB1960PTC024683

Company & Directors' Information:- STAR LTD. [Dissolved] CIN = U99999MH1921PTC000957

    First Appeal No. A/53/2018

    Decided On, 05 April 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellant: Asis Chakraborty., Advocate. For the Respondent: Arijit Bhattacharjee., Advocate.

Judgment Text

Utpal Kumar Bhattacharya, Member

The Appellants/OPs, being aggrieved with the judgment and order dated 19.12.2017 passed by the Ld. District Forum in Complaint Case No. CC/117/2017, filed this Appeal u/s 15 of the C.P Act, 1986.

The Ld. District Forum, while allowing the Complaint Case in the impugned judgment and order, directed the Appellants/OPs to pay Rs.2,21,502/- subject to production of original documents, the receipts and prescriptions issued by the Fortis Hospital, Bangalore in addition to compensation and litigation cost of Rs. 1,00,000/- and 25,000/- respectively within a period of 2 months from the date of the impugned judgment and order. In case of non-compliance, as ordered, the entire amount of Rs.3,46,502/- should carry interest @ 10% from the date of the impugned judgment and order till realization.

Briefly put, the facts material to the case were that the Respondent/Complainant purchased the Health Optima Policy of a period of coverage from 03.12.2015 to 02.12.2016 from the Appellants/OPs. The subject policy was supposed to cover medical treatment of the Respondent/Complainant to the extent of Rs.3,00,000/-. Since the year 2015, the Respondent/Complainant started suffering from low back pain. Medication he had to receive from the local physician did him undergo. His health conditions gradually worsened and the discomfort level went to that extent that he, under compulsion, had to undergo on 14.07.2016 an MRI in Apollo Gleanigles Hospital, Kolkata wherefrom it was diagnosed that the patient was suffering from lumber spondylosis with degenerative disc disease. The pain became so unbearable that he had to rush to Fortis Hospital, Bangalore and to undergo a surgery of left L5 Fenestration and L5 S1 Disectomy on 19.07.2015 in the said hospital at Bangalore. He had a total stay of seven days there w.e.f 18.07.2016 to 24.07.2016.

During the period of his stay in the hospital his wife applied to the Appellant/OP No. 2 for cashless hospitalization and medication as per provisions envisaged under the medical insurance policy. The Appellant/OP No. 2 responded to the prayer through its letter dated 23.07.2016 asking the Respondent/Complainant for the papers relating to treatment chart of Gilbert Syndrome which, as revealed from their internal record, the Respondent/Complainant had been suffering from since last 15 to 16 years. In a further communication immediately thereafter, that is, dated 24.07.2016, the Appellant/OP denied to entertain the claim of cashless treatment on the ground that there was suppression of material facts at the time of taking the said policy by the Respondent/Complainant who did not divulge his suffering from Gilbert Syndrome for the last 16 to 17 years. The allegation being farthest from the truth, the aggrieved Respondent/Complainant filed the Complaint Case before the Ld. District Forum. Impugned judgment and order which was under challenge in the instant Appeal, originated from the said Complaint Case.

Heard the Ld. Advocates appearing on behalf of both sides.

The Ld. Advocate appearing on behalf of the Appellants/OPs drew the notice of the Bench to running page 124, being the clinical details of the Respondent/Complainant wherefrom, as submitted, it revealed that the Respondent/Complainant was a victim of Gilbert Syndrome since last 16 to 17 years. As he continued, the Respondent/Complainant had suppressed the material information at the time of purchasing the policy rendering the same void because of violation of treatments and conditions by the policy holder himself.

The Ld. Advocate drew the notice of the Bench to running page 129, being the correspondence dated 23.07.2016 of the Appellant/OP made to the Respondent/Complainant wherein the Respondent/Complainant’s treatment chart and consultation paper in respect of Gilbert Syndrome which he was found to have been suffering from as, allegedly, revealed from the internal verification of record, were demanded. The Appellants/OPs’ next correspondence dated 24.07.2016 repudiated the Respondent/Complainant’s demand for clearance towards cashless treatment.

Referring to running page 136, being the proposal form of the Respondent/Complainant, the Ld. Advocate, continued that the said proposal, in its continuation at running page 137, revealed that the Respondent/Complainant had denied his suffering from any kind of disease when, in fact, he was an old patient of Gilbert Syndrome.

As the Ld. Advocate continued, by suppressing the disease which he appeared to have been suffering from prior to his purchasing the policy, the Respondent/Complainant committed a serious offence of suppressing the material facts.

The Ld. Advocate, in support of his submission, cited some decisions of the Hon’ble National Commission wherein the Hon’ble National Commission was pleased to upheld the repudiation of claim by the Life Insurance Companies in cases where existence of the pre-existing disease of the insured, established beyond doubt, were suppressed.

Ld. Advocate, with the above submission, prayed for the Appeal to be allowed setting aside the impugned judgment and order.

Ld. Advocate appearing on behalf of the Respondent/Complainant, contrary to the above submission, drew the notice of the Bench to para 29 of the complaint and submitted that the unbearable low back pain compelled him to take decision of following the doctor’s advice of undergoing surgery for getting relief. He further drew the notice of the Bench to running page 39 being the admission history and physical assessment of the Respondent/Complainant issued by the treating hospital to submit that nothing about patient’s suffering from Gilbert Syndrome was mentioned in that paper.

The Ld. Advocate continued to submit that the Appellants/OPs Company representative visited the Respondent/Complainant in the hospital after operation. The Respondent/Complainant, who was at that time in a semi conscious step under the influence of the medicines, on being asked, had probably informed that representative about a homoeopath’s apprehension years back about his probable suffering from Gilbert Syndrome.

Referring to running page 79, being the certificate of the treating doctor, the Ld. Advocate continued further that the patient was not suffering from Gilbert Syndrome. The Appellants/OPs, as contended, took the Respondent/Complainant’s information into credence more than that the treating doctor’s diagnosis revealed although they could not produce any documentary evidence to disprove the diagnosis made by the treating doctor.

The Ld. Advocate referred to para 9 of the complaint and submitted that a claim for an amount of Rs. 2,21,502/- was preferred before the Appellants/OPs for disbursement and all required documents in original were furnished along with the said claim leaving no original documents to be furnished to the Appellants/OPs once again in compliance of the directions in the impugned order. The Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned order.

Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides. It appeared that there was no other point of contradiction barring and expecting the sole point of suppression of facts of his suffering from Gilbert Syndrome from the young age on the part of the Respondent/Complainant as alleged in the complaint.

We did not find any document of evidentiary value in the record substantiating the fact of the patient had any history of pre-existing disease like Gilbert Syndrome. The certificate of treating doctor, running page 79, was rather contradictory to the findings of the Appellants/OPs. The certificate was speaking about the facts that the Respondent/Complainant was not having any related problem like to Gilbert Syndrome. It was also explicit about the fact that Gilbert Syndrome was an enzyme abnormality which had no bearing with the illness that the patient had been suffering from.

The Appellants/OPs appeared to have been carried away by an information of a mere statement reportedly made by one homoeopath decades back about the Respondent/Complainant’s suffering from Gilbert Syndrome and that too after being told on repeated interrogation by the said patient himself who was in a semi conscious state at that point of time under the influence of medicines.

We are afraid we are unable to consider the repudiation of claim a tenable decision and tend to corroborate the decision of the Ld. District Forum so far as allowing the payment of the claim is concerned.

We, however, do not agree with the directed proviso of submissions of relevant documents in original what the Respondent/Complainant has informed to have been submitted already with the claim proposal. The communications dated 23.07.2016 and 24.07.2016 made by the Appellants/OPs also have emphasized on submission of no document other than the profile of the Respondent/Complainant in respect of his treatment of Gilbert Syndrome, a disease still unsubstantiated that the patient has ever suffered. This indicates that the Appellants/OPs have no demand in respect of any other document in support of the claim of the Respo

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ndent/Complainant. We are also of the opinion that, in the impugned order, the costs and compensation at a higher side have been directed to be paid by the Appellants/OPs to the Respondent/Complainant. Accordingly, we intend to modify the impugned judgment and order. Hence, ORDERED that the Appeal be and same is allowed in part. The Appellants/OPs are directed to pay jointly and severally an amount of Rs. 2,21,502/- to the Respondent/Complainant. They are further directed to pay jointly and severally a compensation of Rs. 40,000/- and litigation cost of Rs. 10,000/- to the Respondent/Complainant. The entire order has to be carried out within a period of 45 days from the date of the impugned judgment and order, failing which, simple interest @ 9% p.a. shall accrue to Rs. 2,61,502/-, being the total of the amount to be paid and the compensation amount, from the date of default till the amount is fully realized. Impugned judgment and order stands modified accordingly.