Date of Filing:09/05/2017
Date of Order:06/03/2019
BEFORE THE BANGALORE 1stADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 6th DAY OF MARCH 2019
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.950/2017
COMPLAINANT | | SRI. SEETHAKANTHAN.S.V., Aged about 70 years, S/o. S.G.Sharma, Residing at Flat No.103, S.V.Green Homes, 2nd Main Vinayakanagar, J.P.Nagar, 5th Phase, Bangalore -560 078. (Sri.P.N.Ramesh, Adv. For Complainant) |
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V/s
OPPOSITE PARTIES | 1 | The Authorized Signatory, APOLLO MUNICH HEALTH INSURANCE COMPANY, Plot No.404, 405, 2nd& 3rd Floor, ILABS Centre, UdyogVihar, Phase-III Gurgaon, Haryana-122 016. |
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| 2 | The Authorized Signatory, APOLLO MUNICH HEALTH INSURANCE COMPANY, Shop No.105, 106, Plot No.136, 1st Floor, Cears Plaza, Residency Road, Bengaluru-560 037. (Sri.Prashant.T.Pandit, Adv. for O.P.No.1 & 2 ) |
ORDER
BY SRI D.SURESH, MEMBER
1. This is the complaint filed by the complainant against the Opposite Parties(hereinafter referred to as O.Ps) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.Ps to reimburse Rs.70,002/- paid by the complainant for her treatment, Rs.20,000/- towards mental agony, trauma and hardship and Rs.20,000/- towards legal expenses to the complainant, totaling to a sum of Rs.1,10,002/- together with interest at the rate of 16% from the date of repudiation and such other relief as this Hon’ble Forum deems fit and proper along with costs and such other expenses.
2. The brief facts of the complainant’s case are: that the complainant purchased Easy Healthy Group Insurance Policy from the 1st and 2nd O.P (Insurance company) vide Insurance policy No.120100/22001/2015/A004932.The complainant was suffering from severe pain in right knee joints. He decided to seek medical investigation/examination by way of X-rays of knees (AP and lateral view). It revealed the presence of Osteoarthritis in right knee. Based on this medical examination, he was to undergo treatment using sequentially programmed magnetic field therapy (SPMF Therapy) for 21 days at SPF Health care and research center run by Wg.Cdr. Dr.V.G.Vasishta (Retd.) who is the CEO. The SPMF treatment along with physiotherapy was for half an hour daily for a period of 21 days continuously. As a result, the complainant has substantial relief from the pain.He made his insurance claim with Ops for payment of Rs.70,002/- based on treatment summary and consolidated bill duly given by the SBF Health care and center dated 13.03.2016. They have repudiated the claim. The very clause quoted by the Op has no application at all to the facts and circumstance of the case, given that the treatment is a result of technological advance which results in the growth of new cartilage. Further it is pointed out that as per the terms of the policy itself, there is no whisper that treatment for Osteoarthritis is precluded from seeking reimbursement. Moreover the said decease is an age related one and repudiation of age related disorders after collecting premiums from insured amounts to unfair trade practice.
3. The complainant has spent of Rs.70,002/- for the treatment. After getting details of the treatment by the SPMF health care and research center, he lodged the claim for the aforesaid amount with O.P. But the same was repudiated on the ground that the treatment which was done on outpatient basis without any hospitalization and OPD treatment as excluded from the scope of coverage in the policy as per communication dated 30.04.2016. In fact, complainant was eligible for the reimbursement. The reason given by O.P.No.1 and 2 in denying the reimbursement is baseless and cannot be a ground for repudiation. In the instant case complainant has undergone magnetic field therapy, and the said treatment is not within the definition of rehabilitation for the osteoarthritis. Hence the repudiation is not just and proper.
4. It is alleged that after the repudiation intimation, the complainant issued a legal notice dated 19.07.2016. The O.Ps did not reply the same and did not reimburse the claimed amount. Left with no option, the complainant approached this Hon’ble Forum for reimbursement of amount paid by him for the deficiency in service and unfair trade practice by filing this complaint.
5. After service of notice, O.Ps appeared through their counsel and filed their version contending that, the complaint is not maintainable either in law or on facts and hence liable to be dismissed. It is contended that the definition of Deficiency defined in section 2 (1) (g) of the Consumer Protection Act do not cover the claim arising under the present dispute. The OPs raised objection that the transaction between the parties is clearly guided under the policy terms and conditions. It is based on contract. Hence the act of the OPs in repudiating the contract cannot be found as deficiency in service. The O.Ps further contended that the complainant has taken treatment for the alleged knee pain with SBF health care and research center and complainant himself admitted that he was not hospitalized for SBMF therapy for the duration of 21 days, but he underwent treatment for two hours a day followed by physiotherapy. As such his total stay center was one hour thirty minutes every day. By scrutinizing the treatment summary, it is very clear that the complainant has taken treatment on OPD basis for 21 days. Hence same was rejected as there was no hospitalization. He underwent treatment using magnetic field therapy. It is also contended that, the complainant undergone the procedure to improve his Activities of daily living. Thus it is taken for rehabilitation measures which are not covered as per policy terms and conditions. Ops have rightly repudiated the claim.
6. It is well settled that “One great Principle of Insurances Law is that the Insurance Policy is to be construed strictly as per the condition of the policy documents which is a binding contract between the parties. An insurance claim can only be granted within the terms and conditions of the policy”. The claim of the complainant has been repudiated and the same was informed by letter dated 30.04.2016. It is also the case that the SBF health hospital is not in the list of selected and empanelled hospital and further denied all the allegation made in the complaint para wise and prayed the Forum to dismiss the complaint.
7. In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-
1) Whether the complainants have proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainants are entitled to
the relief prayed for in the complaint?
8. Our answers to the above points are:-
POINT NO.1: In the Affirmative.
POINT NO.2: Partly in the affirmative.
For the following.
REASONS
ON POINT No.1:-
9. The complainant has filed his affidavit evidence reiterating the contents of the complaint. He has also produced the copy of the insurance, treatment summary issued by SBF health care, consolidated invoice, repudiation letter, Letter written by the complaint to the Hon’ble President of India, copy of the legal notice, treatment summary and postal acknowledgment and receipts.
10. On perusing the said documents and evidence of both the parties, it becomes clear that the complainant obtained insurance policy from O.P.No.1 and 2 Easy Healthy Group Insurance Policy vide Insurance policy No.120100/22001/2015/A004932 and has taken treatment by SPMF therapy from SPF health by paying Rs.70,002/- for a period of 21 days as the complainant was suffering from right knee joint pains and it was detected as osteoarthritis. The letter issued by the O.P is clear that the treatment taken as an outpatient basis without admission as inpatient and hence the claim is not admissible and payable and the same was rejected stating that treatment was give as outpatient without hospitalization.
11. On perusing the same, nowhere the said clause says that daycare treatment is not allowable. Further the invoice and the treatment summary do not state that the patient has been treated as an outpatient. In this direction we rely on the decision rendered by the Hon’ble Karnataka State Consumer Disputes Redressal Commission in Appeal No.2502/2010 between Regional Manager, National Insurance Company Vs. O.P Kinger & Another has held on 03.08.2011 that: “Even if the treatment as taken by the patient as an outpatient without admitting has an inpatient is entitle for reimbursement. The main purpose of getting the medi-claim policy is for reimbursement. Therefore the Osteoarthritis is bound to occur in the elderly people for which insurance cannot be denied.
12. It is also held in Revision Petition No.2362/2014 between New India Assurance Company Limited, Vs Ishu Motawani by National Consumer Disputes Redressal Commission on 23.2.2015 held that: Issuing of policy to a person of 56 years and then stating that age related diseases are excluded, amounts to unfair trade practice. When SPMF therapy is not specifically excluded, the act of the OP in repudiating the claim on the ground that treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same amounts to deficiency of service”. The complainant has undergone a nonsurgical treatment that helps both regenerate cells in osteoarthritis. SPMF therapy is technology that produces highly complex sequentially programmed magnetic fields which are computer controlled and can be precisely focused on to the targeted tissues with help of laser guides.
13. The tissue regeneration is the key and the surgery is involved the laser treatment it does not affect the healthy issue.
14. Osteoarthritis is second most common Rehemotological problem and is the most frequent joint disease with prevalence. Without using pain killer drugs and without any side effect both knees can be treated stimulating and it also improves the stability of knee joint. This treatment is unlike other rehabilitation procedures it also increase mobility and improve power and stability of the knee joints, while halting the progress of disease it does not have effect on co-morbidities and patient can carry their normal activities during the treatment.
15. Considering above explanation it is clear that treatment taken for the joint knee pain is physiotherapy exercise. It is new method of treatment and technology adopted to cure the joint knee pain.
16. O.P.No.1 and 2 have filed their affidavit supporting the denial of claim. They have produced the policy terms and condition, claim form, certificate of insurance policy treatment summary of complainant, copy of the bills, Diet chart and the letter to whomsoever it may concern issued by the SBF therapy. The treatment taken by the complainant has not been excluded by the medical counsel of India. When the type of treatment the complainant has taken if taken in to consideration, it is neither surgery nor a procedure. At best, it can be termed a physiotherapy exercise and magnetic therapy treatment which is a new method and technology adopted to cure the knee pain without going for a surgery.
17. Further Ops have repudiated the claim on the ground that the treatment taken is for rehabilitation measure (sub sequentially Programmed Magnetic Filed Therapy) for osteoarthritis which is excluded from the scope of coverage of policy. In the instant case complainant has not undergone for treatment of rehabilitation measures and the said treatment is purely a result of technological advance which results in the growth of new cartilage. Hence, repudiation of claim is beyond the scope of natural justice and is illegal, amounts to deficiency in service and also amounts to unfair trade practice on the part of O.Ps. Hence, we answer Point.No.1 in the Affirmative.
POINT No.2
18. Having held Point No.1 in the affirmative, the Complainant is entitle for the amount she has spent for medical treatment i.e. Rs.70,002/-. The complainant is also entitle for damages for her mental and physical sufferance when the O.Ps repudiated her claim, which we quantify at Rs.25,000/- and she is also entitled to Rs.10,000/- towards legal expenses made by her towards paying the advocate fee and also towards the expenses she has to met in filing this case and attending the Forum on the day of hearing. Hence we answer this Point No.2 Partly in the Affirmative and proceed to pass the following:-
ORDER
1. The complaint is partly allowed with cost.
2. The OP No.1and 2 are jointly and severally hereby directed to pay to the complainant a sum of Rs.70,002/- along with interest at the rate of 12% per annum from the date of filing of this complainant.
3. Further O.Ps are hereby directed to pay a sum Rs.20,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses.
4. The O.Ps are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 6th MARCH 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1: - Mr. Seethakanthan. S.V.-Complainant.
Copies of Documents produced on behalf of Complainant/s:
Annexure-A:Copy of terms and conditions of the policy.
Annexure-B: Copy of the treatment summary from M/s. SBF Health care and research center dated 13.04.2016.
Annexure-C: Copy of the consolidated bill from M/s. SBF Health care and research centre dated 13.04.2016.
Annexure-D: Copy of the letter of repudiation dated 30.04.2016.
Annexure-E: Copy of the laudable remarks in respect of Wg.Cdr.Dr.V.G.Vasishta (Retd) CEO of SBF Healthcare and research centre.
Annexure-F: Copy of the legal notice dated 19.07.2016.
Annexure-G: Copy of postal endorsement for having received the legal notice.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Smt. Deepti Rustagi, Senior Vice president of O.Ps.
Copies of Documents produced on behalf of Opposite Party/s
Doc.No.1: Copy of the enrolment form.
Doc.No.2: Copy of the certificate of insurance
Doc.No.3: Copy of the claim form
Doc.No.4: Copy of the treatment summary
Doc.No.5: Copy of the bills cum receipts
MEMBER PRESIDENT
