DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT,
ALIPORE, KOLKATA-700 027
>> C.C. CASE NO.: 230 OF 2006 <<
DATE OF FILING: 21.12.2006
DATE OF PASSING JUDGEMENT: 30.06.2009
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Present : President : Dipak Shyam Roy
Member(s) : Amitabha Roy Chowdhury & Sharmi Basu
________________________________________________________________________
COMPLAINANT : 1. Mrs. Bratati Samaddar
alias Dutta,w/o Sri Biswajit Sammadar
and d/o Sri Rama Prasad Sengupta ,
earlier residing at P/84, Block-B, Lake Town, Rimjhim Apartment Flat no.-11,
4th floor, Kolkata – 89,P.S. Lake Town, Dist. North 24 Parganas
and presently residing at C/o. Sri Rama Prasad Sengupta,
Ram Krishna Pally, Sonarpur,24 Parganas (S), Kolkata – 150
2. Sri Rama Prasad Sengupta,s/o late Deba Prasad Sengupta
at Ram Krishna Pally, Sonarpur,24-Parganas (S),Kolkata – 150.
- >> : versus : << -
O. P. / O. PS : 1. National Insurnace Company Ltd. Division:
XI, 19, R.N. Mukherjee Road, Kolkata – 1
2. The Manager, National Insurance Company Ltd.
3, Middleton Street,Kolkata – 71
3. Standard Chartered Bank(erstwhile ANZ Grindlays Bank),
19, Netaji Subhas Basu Road, Kol-1.
4. The Regional Manager, Standard Chartered Bank
(erstwhile ANZ Grindlays Bank), 41, Chowringee Road,Kol-71
5. The Manager (Central Operations), Standard Chartered Bank
(erstwhile ANZ Grindlays Bank),Post Box No.58,58, Armenian Street,Chennai:600001
6. The Quality Assurance Manager, Standard Chartered Bank(Phone Banking)
7. The Branch Manager, Shyambazar Branch,Standard Chartered Bank
(erstwhile ANZ Grindlays Ban k), 139/C, Bidhan Sarani, Kolkata – 4.
8. Medicare Service Club Flat no.2, Paul Mansions, 6, Bishop Lefroy Road, Kol-20.
9. The Vice President, Medicare Service Club ,
Flat no.2, Paul Mansions, 6, Bishop Lefroy Road,Kol-20
10. The Manager, Medicare Service Club,
Flat no.2, Paul Mansions, 6, Bishop Lefroy Road,Kolkata – 20.
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>> J U D G E M E N T <<
________________________________________________________________________
This petition of complaint has been filed by Mrs. Bratati Samaddar alias Dutta and her father Sri Rama Prasad Sengupta against the O.P-1 ,National Insurance Co.Ltd. and 9 other O.Ps on the allegation of deficiency in service and unfair trade practice on the part of the O.Ps.
The fact of the case in brief as made out in the petition of complaint is that the O.P-1 is the Insurance Company and O.P-2 is the Manager of the O.P-1 having prime controlling authority of O.P-1 for his day to day business and activities. The O.P-3 is Standard Chartered Bank(erstwhile ANZ Grindlays Bank) . O.P nos. 4,5 and 6 are respectively The Regional Manager, The Manager, (Central Operations), The Quality Assurance Manager of the said Bank. The O.P-7 is the Branch Manager Shyambazar Branch of the O.P-3. They are the prime controlling authority of the O.P-3 for its day to day business activities for promoting the sell of the “Group Medical Plan” policies as prepared and offered for the society. The O.P-8 is a specialist claim service organisation. The O.P-9 and O.P-10 are respectively the Vice President and Manager of the O.P-8. The complainant no.1 has a Savings Account with ANZ Grindlays Bank , Shyambazar Branch ,thereafter merged with the Standard Chartered Bank and later renamed as the Standard Chartered Bank and the complainant is now maintaining her account with the O.P-7. It has now been alleged that O.P-3 along with the O.P -1and in association with O.P-8 by an way of unfair trade practice made false or misleading representation in it’s publicity concerning the need for or the usefulness of it’s goods or services given to its valuable customers false belief and faith in it’s advertisement and/or letter dated September 16, 1999. Subsequently they induced over phone sometimes in the Month of September,1999 about the performance, efficacy or length of life of it’s products or goods, that is, the said”Group Medical Plan” which is in actual not based on an adequate track record or research or proper test.
. The complainant no.1 sent fully filled up enrolment form by complying all the formalities which was sent by the O.P-3 to the complainant with his letter dated 16.9.1999 and as per the said medical plan the complainant was to pay a monthly premium of Rs.180/- only in total for the group comprised of herself and her parents breaking the said nomenclature as Rs.80/- + Rs.50/- + Rs.50/- only to the O>P-8 through the O.P-3 with annual coverage of Rs.50,000/- only against the said Medical Insurance coverage. The O.P-1 deducted the first monthly premium on 20.10.1999 to the tune of Rs.180 only from the savings bank account of the complainant and the O.P-1 continued to doing that in regular and monthly instalment basis. The O.P-8 sent a letter dated 13.12.1999 to the complainant no.1 stating that the membership of the members of the group were effective from the first realization of monthly premium . Though on the other hand, in the membership cards, it was written that date of implementation was 1.11.1999. It has now been alleged that the O.P-8 neither sent any Insurance Policy to the complainant nor they let the complainants know the terms and conditions ,salient features ,time stipulation of such Insurance coverage despite specific and repeated requests made by the complainants which according to the complainants is nothing but deficiency in service and unfair trade practice by the O.P-8. On 7.12.1999 Manasi Sengupta ,the mother of the complainant no.1 got seriously ill and she was admitted in Gamma Century Health Care Private Ltd. and was treated there from 8.12.1999 to 14,12,1999. On 14.12.1999 she was shifted to Peerless Hospital for further treatment from where she was discharged on 24.12.1999. The complainant filed bill of Rs. 40,882.20 along with voucher, prescription, Memo etc spent for her treatment but the claim was rejected and the documents were returned by the O.P-8 and it was intimated that date of enrolment of the complainant was 1.12.1999 ,referring certain clauses of key features of medical plan ,without sending any such key features. The complainants have now alleged that the O.P-1 and 3 discarded the said mediclaim saying that as per clause of key features of medical claim the complainants have to wait for a period of at least one month before he can raise any valid claim and as the date of enrolment of Manasi Sengupta was 1.12.1999 and the date of admission to the hospital was 8.12.1999, no such claim could have been raised against her treatment. According to the complainants such rejection was not proper and the letter of rejection was objected to by the complainants. The complainants had to again admit Manashi Sengupta to Peerless Hospital on 11.1.2000 ,where she had been treated till 29.1.2000 when she was finally discharged and thereafter the complainants took her back to home. Despite all efforts made by the complainants, on 3.12.2000 Manashi Sentupa died. The complainant no.2 vide his letter dated 15.1.2001 informed the O.P-8 about the said death of Manashi Sengupta. The lawful demand of mediclaim in respect of deceased Manashi Sengupta was refused by O.P-8 vide its letter dated 15.2.2001 on the ground that it could not be entertained due to pre existing conditions as there operations are guided by GIC norms and inspite of their best efforts it would not be possible for them to violate the same, however abnormal, they might seem to be. It has also contended therein that no policy is issued for the Group Medical Plan. They have arranged to cancel the membership of Manashi Sengupta and subsequently arranged to adjust the premium accordingly. The complainants have alleged that the bank statements for the period from July 19, 2001 to October 19, 2001 as issued by the O.P-3 indicate that even after intimation in writing regarding the death of Manashi Sengupta the said unlawful deduction had been going on. Finally, after demise of Smt. Manashi Sengupta the complainant vide their letter dated 18.11.2002 and 22.11.2002 raised a consolidated mediclaim afresh of the expenditure of treatment of Manashi Sengupta amounting to Rs. 1,20,621/- . Again the said claim was rejected by the O.P-8 vide its letter dated 26.11.2002. This time O.P-8 raised some grounds which are ;
(1) The Insurance covers for the complainants commenced from 1.11.1999.
(2) The disease of the demised member was a pre existing one prior to starting of the Insurance Coverage, In their support they relied upon one medical report of Urine Test dated 28.10.1999 .
The complainant raised objection vide there letters dated 12.10.2002,13.12.2002 to the O.P-3 and O.P-8 respectively and contended that said test was done as a routine check up and the said test was not connected with the fatal ailment of the demised member for which she ultimately succumbed. They asked the medical papers to be examined by independent panel of doctors to ascertain whether disease of Smt. Manashi Sentupta was a pre existing disease or not but the O.P-8 did not pay heed to that contention of the complainant. The O.P-3 was informed about the unfair trade practice of the O.P-8 but the O.P-3 shrugged off their responsibility by showing the O.P-1 as the principal and the inducer or the O.P-8 as the claim service provider and advised the complainant to persuade with them for the said mediclaim but not with the O.P-3. Even after death of Manashi Sengupta , drawing monthly insurance premium continued from January 2001 to January 2004 and after repeated reminders O.P-3 and O.P-8 stopped withdrawing Rs.180/- but started to withdraw Rs.150/- from the Savings Account of the complainant no.1. Though they are entitled to withdraw only Rs.130/- per month, they started to withdraw Rs.154/- per month from February, 2004 and it continued till August, 2006. The O.P nos. 2 and 3 finally credited sum of Rs. 1200/- only on 18.3.2004 towards refund of the excess insurance premium. The complainants have contended that from their letter dated March, 16, 2004 it will be evident that there was self confession of the O.P-3 about their negligence which goes to the root of deficiency of service amounting to unfair trade practice. The complainant lodged complaint with the O.P-3 claiming compensation for a sum of Rs.1 lac for their hardship, deficiency in service, sufferings and harassment but the O.P-3 vide its letter dated 30.3.2004 indicates non acceptance of the said claim by their key decision makers after consideration of all factors. It has been further alleged that all on a sudden the O.P no.1 by letter dated 7.11.2003 informed the complainant for the first time that the O.P-1 was given to understand from the O.P-8 that they had arranged for insurance in the year 1999 through New India Assurance Co. Ltd. From the letter of Divisional Manager of Div. no.XI of the National Insurance Co. Ltd it was confirmed that the Divisional Manager of Div. no.XI of O.P-1 was controlling the affairs with O.P no.8 and after receipt of that information, the complainant raised their strong protest to the O.P-1 vide their letter dated 15.12.2003. The complainants have further contended that in every case of Group Insurance, issuance of both Membership Card and Policy in all cases is a must. They have further alleged that the other third party administrators used to issue policy along with membership card in support of its valuable service but in this case O.P-8 did not issue any policy indicating the name ,address, place, sum assured, rate of monthly premium and the period of validity etc, despite repeated requests by the complainants. On the other hand the O.P -8 by its letter dated 15.12.2000 denied the requirement of issuance of any such policy because the membership cards are the sufficient identity of the membership of Insurance Policy. According to the complainants, it is also an unfair trade practice. They have further alleged that neither the O.P-3 nor the O.P-8 took any pain to explain the rules, regulations and the norms of the insurance before the complainants who being a lay-man had no knowledge about the same and when the complainants raised the details of mediclaim before them, they started to raise all sorts of technical and legal impediments to their best endeavour which is also an unfair trade practice on their part. The complainants registered complaints to the Ld. Insurance Ombudsman and Banking Ombudsman and the said respective statutory authorities appreciated the bonafide of the complaints but owing to the technicalities expressed their incapability to proceed with the said proceedings but made some valuable observations and Ld. Banking Ombudsman directed the O.P-1 to give thorough review of the matter but the O.P-1 paid no heed to such direction. The complainants also approached the Chairman ,Governing body, Insurance Council (GDIC) Mumbai but they advised the complainants to seek redressal either through the consumer court or Civil Court. In the meantime the O.P-8 vide its letter dated 29.8.2006 asked for a fresh authorization from the complainant no.1 indicating the proposed switch over from the National Insurance Co. Ltd to United India Insurance Co as their new insurance provider with higher rate of insurance premium giving retrospective effect from 1.7.2006, stipulating 10.10.2006 as the last date of providing such authorization. The complainants by sending letter tried to know from O.P-8 whether membership card issued by the O.P-8 in active league with the O.P nos. 1 and 3 was still in force but no response was received. Thereafter the complainants sent notice of demand for justice and desired not to continue with the said mediclaim policy. The complainants also made requests to O.P-1 not to transfer their membership as per wishes and wrongful gain of the said O.P. It has now been alleged that O.P-1 with the active league and association of O.P nos. 1 and 3 is trying to transfer the said mediclaim policy from the hands of O.P-1 to another Insurance Company i.e. United India Insurance Co. The complainants have now prayed for ;
(a) Compensation of Rs. 5 lacs from the O.P-8 for defects in Group Medical Plan and for its deficiency in service that resulted unfair trade practice to the complainants.
(b) Compensation to the tune of Rs. 5 lacs from the O.P-1 for defects in the goods and/or the same mediclaim policy for its negligence and deficiency in service that resulted in unfair trade practice .
(c) Compensation to the tune of Rs. 5 lacs from the O.P-3 on the same ground.
(d) The judgement and order directing the O.P-8 to pay penalty to the tune of Rs. 50,000/- only to the complainants on account of their mental agony, sufferings, distress and loss.
(e) An order directing the O.P-1 to pay penalty to the complainant for a sum of Rs. 50,000/- on account of their mental agony and distress.
(f) Direction upon the O.P-3 to pay penalty to the tune of Rs. 50,000/- to the complainant on account of their mental agony, distress and retardation which extended to injury and loss.
(g) For return of Rs. 1552/- which are the charges paid in excess along with interest @ 24% p.a and the other incidental charges.
(h) For permanent injunction against the O.P-8 from transferring the policy to any other Insurance Co.
(i) For litigation cost including the Advocate and Counsel fees.
Point for decision in this case is:
(i) whether the claim is maintainable
(ii) whether this Forum has territorial jurisdiction to entertain this case
(iii) whether the case is barred by limitation
(iv) whether the case suffers from non joinder of parties.
(v) whether there is deficiency in service or unfair trade practice on the part of the O.Ps in this case,
(vi) whether there was any defect in group medical plan resulting in deficiency in service on the part of the O.P-8,
(vii) whether the complainants are entitled to get compensation for defects in group medical plan or deficiency in service form O.P-8.
(viii) whether the complainants are entitled to compensation from O.P-1 and 3 also on the same ground
(ix) whether the complainants are entitled to get penalty from O.P 1,3 and 8 for the alleged mental agony, distress and harassment to the complainants
(x) whether the complainants are entitled to get a decree for Rs. 1552/- towards extra charges paid in excess towards premium with interest @ 24% p.a and the increased incidental charges thereon.
(xi) whether the complainants are entitled to get an order of injunction against the O.P-8 from transferring the policy to another Insurance Company.
(xii) whether the complainants are entitled to get litigation cost
(xiii) to what are the reliefs, if any, the complainants are entitled .
Finding of the Forum :
The complainant no.2 furnished his evidence on affidavit and he was cross examined. He furnished all the copies of letters and correspondences relating to their Group Medical Plan . Written notes on argument have also been furnished on behalf of the complainants. The O.P-8,9 and 10 also furnished written notes on argument. We have heard the argument and perused the evidence adduced and the documents furnished in this case. From the facts of the case it is clear that this complaint has been filed not on a single allegation but alleging several grievances ,praying for different reliefs. In other words, this complaint has been filed out of several causes of action stating bundle of facts with prayer for redressal of those grievances. The grievances of the complainants for convenience of discussion may be summarized as follows :- (i) Inducement of complainants making representation by O.P-3 in collaboration with O.P -1 and O.P-8 adopting unfair trade practices for obtaining Insurance Policy named Group Medical Plan and subsequently issuance of membership card only without any insurance policy. (ii) Illegal repudiation of mediclaim of Manashi Sengupta since deceased and non disposal of further consolidated claim in regard to the treatment of deceased Manashi Sengupta. (iii) Illegal deduction of excess of insurance premium on the head of demised member Manshi Sengupta even after giving information of her death by the O.Ps. (iv) Non consideration of the complainants’ prayer for not transferring their mediclaim policy from the O.P-1 to United India Insurance Co. (v) Non consideration of the complainants’ disagreement to pay enhanced monthly insurance premium. (vi) Non payment of the long pending mediclaim and also for non payment of compensation for the complainants’ harassment. The specific case of the complainants is that the O.P-1,2,8,9 and 10 while acting in consonance with the O.P 3,4,5 ,6 and 7 sometimes in the month of September, 1999 floated a group medical plan for the customers of O.P-3,4,5,6 and 7 and other family members wherein the O.P-1 and 2 was acting as a principal insurer as the provider of the said group medical plan while the same was administered and made available by the O.P 8,9 and 10 who allegedly claimed to be a specialized claim service organisation who process the claim to ensure that all benefits are paid promptly. Being allured and induced by the O.P 1 to 10 who falsely represented and advertised in a misleading way that the service on their part are of a particular standard of quality, grade, style of model, the complainant no.3 opted for such group medical plan for herself and for her parents after deduction of first monthly premium from her account on October, 20,1999 by the O.P 3,4,5,6 and 7 on behalf of the O.P-1 ,2,8,9 and 10. The Insurance Policy Certificate was never issued in favour of the complainants by the O.P nos. 1,2,8,9 and 10 but the coverage of such Insurance policy was confirmed by the O.P nos. 8,9 and 10 who acted as the third party claim administrator (TPA) on behalf of the O.P nos. 1 and 2. The O.P-8 stated in writing that the membership of the complainants under the coverage of such medical insurance are fully effective from the first realization of the monthly premium. From the Annexure A ,the letter dated16th September, 1999 from the ANZ Grindlays Bank it appears that the said Bank sent proposal to their eligible customers to avail the insurance coverage of group medical plan and requested them for enrolment and to send the enrolment form to the Medicare Service Club and the last date for sending such form was fixed on 10.10.1999 and from the printed provisions of cover issued by the O.P-1, the National Insurance Co. Ltd. to the ANZ Grindlays Bank it appears that the said group medical plan was guaranteed for customers upto the age of 65 years and among the family members between the age at 3 months upto 70 years and it was available at special rates. It further appears that the enrolment form was filled in by the complainant no.1 for her self and for her parents and the amount of premium was Rs.80/- for complainant no.1 and Rs.50/- each for her parents and it was sent on 5th October, 1999. From the letter dated 16th September, 1999 it also transpires that after the enrolment form has been processed a membership card will be issued and sent to each person as evidence of cover. The benefits which were offered included claim processing, domiciliary hospitalization benefit, direct payment to participating hospitals or nursing home etc. After perusal of those documents we find that though the O.P-3 arranged this insurance schemes, there was an offer and acceptance between O.P-1 and complainant and the O.P-8 was Medicare Service Club i.e. third party. The letter dated 13th December, 1999 issued to the complainant by the O.P-8 discloses that membership card of group medical plan was issued to her and it was categorically stated therein that the said membership was fully effective from the 1st month of premium realization and even the identity of her has already been established through the member ship number and the Medicare Services Associates at Calcutta will arrange for all medical assistance and support of her membership number and reference. From the ‘PROVISIONS O COVER ,GROUP MEDICAL PLAN’ issued by National Insurance Company ltd. for ANZ Grindlays Bank Customer, it transpires that it was clearly stated “Once you enrolled under the Plan, you will receive your policy and Membership Card (s) by post, which you may examine for 14 days. If you are not completely satisfied – for any reason – simply return the policy and Membership Cards within 14 days. You will be under no obligation whatsoever , and any payment you may have paid, will be refunded or adjusted to your account. It was also clearly mentioned therein that Insurance is provided by National Insurance , arranged by ANZ Grindlays Bank and the Group Medical Plan is administered by Medicare Services Club, a wing of Medicare Services (India) Pvt.Ltd. Now the stand taken by the O.P-8 , that no insurance policy is issued and the membership card is sufficient evidence of the insurance coverage cannot be accepted and for non issuance of insurance policy and even refusal to issue such policy, amounts to deficiency in service on the part of O.P-1, O.P-8. Not only that, in absence of such insurance policy, the complainant got no scope to examine the terms and conditions of the said Group Medical Plan. The O.Ps now cannot unilaterally retreat from their original commitment and state that key features of medical plan is sufficient in this regard as the same was never sent to the complainant. In fact keeping the insurer completely in the dark about the “pros and cons’ of the insurance policy is not only deficiency in service but also unfair trade practice on the part of the Insurance Company, and the Service provider Medicare Service Club, for which the complainant can claim compensation. Inducement was made to the customer of the Bank, and offer was from O.P-1 which was administered by O.P-8 and for this deficiency in service only they are responsible . We find no element of inducement on behalf of the O.P-3 excepting the use of their name and the offer made to its customer. It may be that afterwards some disputes arose, but from all these it cannot be held there were false representation, and illegal inducement. The complainants here are not illiterate person, it was also their duties to make proper enquiry before accepting the offer. After Manashi Sengupta ,the mother of the complainant no.1 suddenly fallen ill and had to be admitted in the Gamma Century Healhcare Pvt.Ltd and thereafter to Peerless Hospital, a bill of Rs. 40,842.50 was submitted to the O.P-8 but the by letter dated 4.1.2000 the O.P-8 regretted to admit that claim on the ground that her date of enrolment was on 1.12.1999 and date of hospitalization of Manshi Sengupta was on 8.12.1999 after a week of becoming their member. The reason for such not admitting the claim has been shown that as per their rule given in key features of medical claim at page 12 waiting for a period of one month is required before any claim is lodged. The Ld. Advocate appearing for the complainant submits that this key feature of medical plan was never supplied to the complainants and his group medical plan was effective from the 1st month of premium realization and their premium was realised from the bank . From Page 34 of Annexure B which is the statement of account of the complainant no1 in ANZ Grindlays Bank it transpires that on 20.10.1999 Rs.180/- was debited to Medicare Service Club and from the letter dated 13.12.1999 written to the complainant no.1 by the Medicare Services Club ,where it has been clearly stated that their membership is fully effective from the first month of premium realization and by that letter they sent membership cards to the complainants. The O.P-8 has no where disputed said letter issued by them to the complainant no.1. After taking into consideration the bank account and the aforesaid letter there remains no doubt to hold that the Group Medical Plan which was floated by National Insurance Co, the O.P-1, to the customers of O.P-3 Standard Chartered Bank was effective from 20.11.1999 i.e. from 1st month of premium realization. Manashi Sengupta, the mother of the complainant no.1 fell ill and was under treatment from 8.12.1999 to 24.12.1999 and a mediclaim of Rs. 40,842/- was raised for her treatment but the same was rejected on the plea that date of allotment with Medicare Service Club was on 1.12.1999 and there was no waiting period of one month which is required before the claim can be lodged which was not justified. We are therefore of the opinion that the rejection of that mediclaim was unethical ,whimsical and unreasonable without any acceptable ground. Therefore, it will be just and proper to give direction upon the O.P-8 to process that claim and recommend the same to the O.P-1 with whom the Insurance policy was made and the O.P-1 must make arrangement for payment of the same after due scrutiny determining the admissible amount. It further appears that after the sad demise of Manashi Sengupta another consolidated bill amounting to Rs. 1,20,621/- was also submitted by the complainant but the same was rejected on the ground of pre existence of the disease. The O.P-8 repudiating the said claim has stated that such diseases which have been in existence at the time of proposing the insurance . Pre existing condition means any injury which existed prior to the effective date of the insurance. Pre existing condition also means any sickness or its symptoms which existed prior to the effective date of the insurance policy, whether or not, the insured persons have knowledge that the symptoms were relating to the sickness complications arising from the pre existing disease will be considered part of that pre existing condition. It has been further contended in that letter that from the papers it was evident that Manashi Sengupta’s ailment existed prior to the start of the insurance cover and it is evident from the report of Dr. Tribedi and Roy which is dated 28.10.1999 and they returned the papers as those were in photocopy and it was not acceptable to the principal. Rejection of the bill of medical treatment of Manashi Sengupta on the ground that the insured have to wait for a period of one month after obtaining the insurance does not appear to be tenable as because she became ill after more than one month when the first premium amount was paid. It appears that after death of Manashi Sengupta the complainants submitted claim of Rs. 1,20,621/- but the said claim was rejected on three grounds. Viz. (i) , the Insurance cover commenced from 1.11.1999 (2) from the report of Dr. Tribedi and Roy it was seen that Manashi Sengupta’s ailment existed prior to the start of insurance cover (3) the claim was submitted with the documents which were all photocopies and those were not acceptable to them. The Medicare Service Club returned all the 193 pages of documents to the complainants, on those grounds. We have already held that the date of commencement of the insurance cover of Manashi Sengupta was not from 1.11.1999 but it commenced from 1st day of premium realization i.e. from 20.10.1999 and it is corroborated by the letter dated 13.12.1999 written by the O.P-8 which clearly states that the membership was effective from 1st month of premium realization. Regarding second ground of pre existence of the disease, the Ld. Advocate for the complainants has contended that the said claim was illegally repudiated and has contended that the Hon’ble Apex Court and the Hon’ble National Commission in numerous judicial pronouncements have been pleased to hold that simply because the insured got seriously ill after taking the insurance policy shall not automatically give rise to the presumption of pre existing disease as usually presumed by different insurance companies for their suitable explanation. The Ld. Advocate has further contended that the Hon’ble National Commission has been further pleased to hold that nobody in the world is free from diseases and as such wile deciding the issue of pre existing disease, the court must consider the demeanor of the insured person on record and the conduct of the insurer regarding explanation of exclusion clause to the insured by the insurer prior to opting for insurance coverage. It has been further pleased to hold that it is the paramount duty of the insurance company or the authorities formed thereunder to give reasons for rejecting the claim of the insured to prove any shadow of doubts regarding prior existence of disease in the body of the person against whom insurance claim was made. The Ld. Advocate has further argued that the O.Ps neither in their written version nor in their evidence have uttered a single word about the pre existence of disease in the body of late Manashi Sengupta. According to him, the Insurance Policy and Insurance Coverage upon the demised member have been admitted by the O.Ps and the documents produced regarding her treatment have proved the case of the complainants and O.Ps have failed to disprove such evidence. The Ld. Advocate appearing for the O.P-8,9 and 10 has argued that Manashi Sengupta died due to pre existing disease which is amply proved from the report of Dr. Tribedi and Roy. Considered the above submissions advanced by the Ld. Advocates of both sides. Regarding the date of coverage of the insurance policy in regard to the deceased, we have already passed our opinion. No doubt regarding rejection of the mediclaim on the ground of pre existing disease the Hon’ble Apex Court as well as the Hon’ble National Commission have taken very strict view against the Insurance Companies. But in this case to examine whether there was pre existing disease of Diabetes , it is necessary to examine the medical papers of Manashi Sengupta, mainly the Bed Head Ticket, Prescriptions and the Death Certificate to explore the real cause of death of Manashi Sengupta. But unfortunately we find that neither the Bed Head Ticket nor the Death Certificate issued by the doctor indicating the cause of death has been produced for proper appreciation of the issue. There is no materials on record to prove that the complainants have suppressed material information while submitting the enrolment form. It was incumbent upon the Insurance Company to examine the insured persons by their own doctors before the proposal for insurance was accepted especially when two members of this Group Medical Plan were aged persons. Hon’ble National Commission in the decision reported in CPJ 2006 Page 494 has been pleased to observe that unless and until patient has undergone long treatment including hospitalization and undergoes operation etc. , in near proximity of taking policy cannot be accused of concealment of material facts .It has been observed therein that “We have taken the views in large number cases that diseases like hyper tension ,diabetes etc are so common are always controllable and until and unless patient has undergone long treatment including hospitalization and remains in hospital for days and undergoes operation etc in the near proximity of taking the policy cannot be accused of concealment of material fact. We have also taken a view that Insurance Companies are also expected and supposed to subject the insured medical examination in order to rule out those diseases which are common and half of population is suffering from such diseases and they are no more known as diseases to rule out the possibility of availing wrongful claim against medical Insurance Policy”. In the case of Pravin Damani Vs. Oriental Insurance Co. Ltd. reported in 2006 (3) CPR 295 (NC) where the Hon’ble National Commission has been pleased to hold that in case of pre existing disease it is necessary to be looked into that the policy holder/patient was aware of the said disease and it should within his/her knowledge. Simple blood report of sugar contained showing the percentage of sugar high on a particular date in absence of any other document to prove the patient was suffering from diabetes or she died of diabetes , we must hold that the repudiation of the claim was not justified. That apart report of Dr. Tribedi & Roy is dated 28.10.1999 whereas insurance premium was debited on 20.10.1999 and as such it was detected after taking the policy. Regarding the submission of photocopies only we are sorry to say that in that case the original documents could have been asked for their scrutiny/examination. We are therefore of the view that the three grounds on which the mediclaim was rejected were not justified and the O.Ps should review that claim and arrange for payment of that part of the bill which are admissible as per the terms and conditions of the Insurance Policy ,which was never issued. The documents furnished before us have proved that even after demise of Manashi Sengupta the Insurance Premium was realised at the old rate without any deduction on account of her death. We also find that against such illegal deduction of excess amount of premium, the complainant had to make several correspondences and ultimately Rs. 1200/- was refunded to the complainants as the excess amount of premium collected for Manashi Sengupta ,since deceased. It is also evident that immediately after her hospitalization it was reported to the O.Ps and after her death it was also reported but instead of taking any action the amount of premium was realised without any deduction. We accept the view of the bank that they acted only as following the instructions of the concerned parties and they work as a payment mechanism of the entire transaction and they have no other role to play in this matter but her continuance of deduction certainly amounts to deficiency in service on the part of the Insurance Company as well as the Medicare Services Club. We are therefore of the opinion that for the harassment and mental agony which the complainant had to face for this deficiency in service also, the complainants are entitled to get sufficient compensation. In absence of the entire bank statement it is not possible for us to calculate the exact excess amount collected and whether the amount refunded was correct or not. However, we direct the O.P-3 to recalculate this issue and return the complainants if any further amount is due on this score and the O.P -8 shall send immediate instruction to the Bank in this regard. The O.P-1 and O.P-8 shall pay compensation for this deficiency in service also. From the provisions of cover of this group mediclaim plan it is evident that insurance was provided by National Insurance Co. arranged by ANZ Grindlays Bank and it was issued by National Insurance Co. ltd. and for any enquiries customers were advised to call the customers service hotline at Medicare Service Club and the mediclaim form which was issued to the complainants also clearly show that it was issued by National Insurance Co; ltd. Therefore, by production of the documents complainants have been able to prove that National Insurance Co. Ltd. was there insurer and the Standard Chartered Bank ,erstwhile ANZ Grindlays Bank used to debit the insurance premium on behalf of the insured persons. Now a dispute has raised as to whether the service provider , the Medicare Service Club can change the Insurance Policy of the complainants from National Insurance Co. ltd. to United India Insurance Co. Ltd. without the consent of the insured and where such transfer was strongly opposed by the insured in writing. The Ld. Advocate appearing for the complainants submits that at the time of proposal of providing insurance coverage National Insurance Co. ltd. played the role of proposer through its agent Medicare Service Club and the complainant accepted the proposal of the proposer and no part of such contract of insurance can unilaterally be changed by any party to the contrary and as such the defence taken by the O.P nos. 8,9 and 10 in favour of such transfer inspite of protest raised by the complainants carries no sense at all. The Medicare Service Club proposed enhancement of monthly premium along with the change of insurer vide its letter dated 29.8.2006 to which the complainants objected . According to him the complainants rightly raised their objections against not only charging the insurance Co. ltd. but also against the enhancement of monthly premium and they categorically instructed the O.P nos. 8,9 and 10 to discontinue the insurance policy vide their letter dated 11.9.2006 in the event of their inability to comply any part of their objection or demand raised by the complainants. The Ld. Advocate appearing for the O.P nos. 8,9 and 10 submits that according to principle of General Insurance Co. Ltd. any of its subsidiaries is entitled to look after the interest of the health plans in all respect where the insured cannot have any choice. Under Article 12 of the Constitution of India all the subsidiaries of GIC are legally and constitutionally empowered to take care of the insured as a matter of policy decision and no individual insured person can raise its protest and unless and until a case of discrimination is made out and established. According to him no objection against transfer of the Group Medical Plan of the complainants from National Insurance Co to United India Insurance Co ltd. arises, since such transfer was effected with effect from 31st March, 2004/1st April,2004. He has also alleged that the claim lodged by the complainant no.2 was also settled by the United India Insurance Co. ltd. at the instance of the complainants. He therefore submits that it is very much within the knowledge of the complainant that United India Insurance Co. Ltd. was the controlling insurer. After enjoying the benefit of the settlement and after receiving the settled claim the complainants are debarred by principle of waiver to raise any objection in regard to the alleged transfer. When the insurance was covered by National Insurance Co. ltd. , we are of the opinion that even if we accept such transfer from one Insurance Company to another is permissible under the Insurance Law of the country , then also the justice demands that such transfer should be done not only at the convenience of the insurer but also with the consent of the insured person. The legal position in this respect is that the intending insured person accepts proposal for insurance coverage with certain insurance companies ,who after scrutinizing and observing other legal formalities has a right to object or to accept such proposal. Once a premium is realised it becomes a bilateral contract between the aforesaid two parties and before any change consent of the insured person appears to us is not only obligatory but also a fair and justified dealing with the customers. From the available documents we also find that there is also dispute as to particular on which date this change taook place. The National Insurance Company Limited by their letter dated November 7, 2003 informed the complainants that their insurance has been changed from National Insurance Co. to New India Insurance Co. ltd with effect from 30.9.1999. This is not only confusing but something new, and surprising to the complainants. Therefore, we are of the opinion that such change of Insurance Policy without consent and without giving intimation to the insured person is an act against the principle of natural justice. There was a proposal and acceptance between the National Insurance Co. Ltd and the complainants. Such unilateral change and , that too keeping the complainants , completely in dark about such change appears to us deficiency in service on the part of the O.P-3, National Insurance Co. Ltd. and its agent O.P-8. No doubt, an order of injunction has been passed by this Forum against such transfer but from the record it appears that such transfer had already taken place before this Forum passed its order. Therefore, we refuse to accept the contention of the Ld. Advocate of the complainants that order of interim injunction has been violated by that transfer. In that view of the matter, no action is called for against the O.Ps for the so-called violation of the order. The complainants have expressed their unwillingness to continue their insurance policy with the Untied India Insurance Co.Ltd. But even then it has been continued and both the complainants are till date covered with that insurance and a higher rate of amount from the original rate is being realised from the complainants. From the record we find that the Complainant no.2 submitted a bill for reimbursement in regard to his illness which has been duly paid to him vide cheque dated 4.5.2007 and its value was Rs. 19,149/-. We have no hesitation to hold that by submitting such bill and receiving the aforesaid amount the complainants had given their tacit consent to the continuance of the Group Mediclaim Plan and thereby they have waived their right to discontinue the aforesaid insurance plan. Most interesting part is that the claim was made by Complainant no.2 not to the United India Insurance Co. Ltd. but to the National Insurance Co. ltd. When there is no correspondence to show that his prayer was rejected as because the claim was addressed to National Insurance Co. Ltd., we have every reason to hold that such transfer was done beyond the knowledge of the complainants and without their consent and it was not immediately informed to the complainants. Such conduct also amounts to deficiency in service on the part of the O.P nos.1 and 8. The complainants have prayed for compensation on different grounds from the O.Ps which are discussed by us at the first part of our judgement. From the facts and circumstances of the case we are of the opinion that the complainants had to undergo protracted correspondences for years together with O.ps for redressal of their grievances but in most of the time their reasonable prayers were rejected. For rejection of the bills of medical treatment of Manashi Sengupta and the complainant’s objection as to the transfer of insurance coverage from one insurance company to other , we are of the opinion that O.P-3 and its officers cannot be held responsible as because they act as per direction of the parties and they do not take any decision in this regard. As such we are of the opinion that the O.P nos. 3,4,5,6,7 cannot be held responsible for the harassment caused to the complainants. We are also of the opinion that all these harassments, suffering were caused due to deficiency in service on the part of the O.P nos. 1,2 and O.P nos. 7 to 10 and they are liable to pay compensation to each of the complainants. The O.P-1 and O.P-8 must pay compensation of Rs.50,000/- each to the complainants in equal share for all the harassment, deficiency in service and mental agony of the complainants. The contesting O.Ps ,however, challenged the maintainability of the case on the ground of territorial jurisdiction of this Forum to try the case. As per Section 11(2)© of the C.P Act this Forum shall have jurisdiction to entertain the case where cause of action wholly or in part arises. From the facts and circumstances of the case it clearly shows that Manashi Sengupta died within the jurisdiction of this Forum and her treatment also done in part within the jurisdiction of this Forum. Therefore the part of cause of action of this case arises within the territorial jurisdiction of the Forum . We are therefore of the opinion that this Forum has jurisdiction to try and entertain this case. The O.Ps have also argued that United India Insurance Company is a necessary party in this case and the case is not maintainable in their absence . Since no allegation has been made and no relief has been prayed for against United India Insurance Company, the United India Insurance Co. ltd. is not a necessary party in this case. Hence in their absence the case is maintainable. The O.Ps have also submitted that the case is hopelessly barred by limitation as the date of final repudiation of the claim of the complainant was on 26.11.2002 and the complaint was filed in the year 2006. We find from the record that after the said repudiation several communications were exchanged between the parties including the approach made to the Office of the Insurance Ombudsman and in fact the allegations in this case are not only in respect of the medical bill but also in respect of other disputes which have been mentioned earlier and as such the cause of actions are several and the case is not barred by limitation. The O.Ps have also challenged the maintainability of this case on the ground that no permission under Section 12© of the C.P Act has been taken when the case has been filed by the complainants jointly. We are of the opinion that since this joint complaint was admitted by the Forum it shall be treated that this Forum has permitted the parties to file this complaint jointly and principle of enactment of the C.P Act is that technicalities should not stand in the way in discharging relief to the people and as such we are of the opinion that the said technicalities cannot be the ground for rejecting the entire claim of the complainant. The O.Ps have challenged the maintainability of the case on the ground that the complainant no.2 in his cross examination has admitted that he has no relation with the O.P-8 and as such this case against the O.P nos. 8,9,10 is liable to be dismissed. We have already discussed that the proposal of the insurance was submitted by the complainants and it was accepted by the O.P-1 and in the enrolment declaration it was clearly stated by the complainant that “I hereby enroll for the Group Medical Plan for ANZ Grindlays Bank customers made available by Medicare Services Club and issued by National Insurance Co. ltd” and the Medicare Service Club was authorised to pay premium , process claim and receipt of reimbursement proceeds from national Insurance Co. Ltd. Naturally statement of the complainant no.2 in his cross examination that he had no relation with the O.P-8 cannot be a ground for dismissal of the case. From such statement it appears to us that he might have made such statement on the conception that National Insurance Co. is insurer and as regards Insurance Policy he has no relation with O.P-8 but the fact remains that from the 1st day of enrolment Medicare Service Club was the agent of the Insurance Company and he was also the service provider of the complainants., We therefore also reject the aforesaid ground challenging the maintainability of the case. In conclusion we are of the opinion that the complainants are entitled to get the reliefs partially as discussed in the body of the Judgement.
Hence Ordered
That the case be and the same is allowed in part on contest against the O.P nos. 1 and 2 and O.P no.s 8,9 and 10 with cost of Rs. 5000/- against the O.P -1 and Rs.5000/- against O.P-8. The case be and the same is dismissed exparte without cost against O.P nos. 3,4,5,6 and 7. The O.P nos.1, 8,9 and 10 are directed to reexamine both the bills of treatment of Manshi Sengupta and to arrange for payment of such part of the bills which are permissible as per law. They are directed not to reject the bills taking earlier grounds on which the bills were rejected. The O.P nos. 1 and 8 are directed to pay compensation of Rs. 50,000/- each to the complainants in equal shares within 30 days from the date of this order, failing which the aforesaid amount shall carry interest @10% p.a till the payment is made. They are further directed to recalculate the amount of premium payable for Manashi Sengupta and find out if any excess amount has been drawn for Manashi Sengupta taking into consideration of Rs. 1200/- which has already been refunded , and the excess amount if drawn towards her premiums, the same be refunded together with interest @ 10% p.a. w.e.f date of death till the payment is made to the complainants. The O.P-8 is directed to take fresh option from the complainants whether they are willing to continue their Group Mediclaim Plan with United India Insurance Co. Ltd at enhanced rate and in the case of their reluctance the O.P-8 shall immediately stop realization of premium from them and cancel their Group Medical Plan. The prayer for not transferring the complainants’ insurance to United India Insurance Co. from National Insurance Co. is rejected as the said transfer has already been taken place. The above actions are to be taken by the concerned parties within 30 days from this order . If the above order is not complied within the stipulated time the complainants can apply before this Forum for execution of the same.
Member Member President
Dictated and corrected by me President