BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1039/2012

DATED THIS THE 18^th NOVEMBER 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -   

                                                Smt.Geetha Srinivas,

                                                W/o. B.Srinivas,

                                                No.1/1, 1^st Main, 11^th Cross,

Vyalikaval, Bangalore-03 

V/s

Opposite parties:-                                     

1.     Columbia Asia Hospital,

No.26/1, Brigade Gate Way,

Beside Metro,

Malleswaram West,

Bangalore-55

2.     Oriental Insurance Co. Ltd,

No.12, Jayalakshmi Mansion,

II floor, Above Bank of Baroda,

Dr.Rajkumar Road, 4^th Block,

Rajajinagar-10

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to pay a sum of Rs.1,27,000=00 towards hospitalization expenses, Rs.50,000=00 towards compensation and cost of Rs.5,000=00, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant had taken a Medi Claim policy from the 2^nd OP in the year 2011 vide policy no.4232000/48/2011/5882. The complainant was hospitalized at Columbia Asia at Malleswaram West Bangalore on 31-10-2011 and 7-11-2011 for acute biliary pancreatitis and seem to have undergone lap cholecystectomy done ERCP and CBD stone removal as per the discharge summary. Thereafter, the complainant made a claim for reimbursement of Rs.1,27,000=00 towards expenses incurred during hospitalization with the OP. The OP Company validly rejected the claim as the above said surgical procedures are not covered under the policy. The OP has honoured their part of the contract by conferring benefits up to Rs.35,000=00 only. The OP informed the complainant that the claim preferred by the complainant is not payable due to illness is pre-existing to the policy and as per the policy terms and conditions all pre existing decease are excluded for four years from the scope of policy. Hence claim is repudiated. The complainant has not been informed by the OP about the policy at the time of taking the policy, so she is not bound by the complainant that all the hospitalization expenses would be covered in case of any hospitalization, before getting the treatment the complainant had called up to the 1^st OP to check on the cashless facility and then complainant was informed by OP to get admitted to take the same in cashless facility. On hospitalization the complainant had to pay up the entire amount on their own and personal belonging from their friends and relatives due to not getting free treatment and reimbursement of the amount from the OP, so due to deficiency of service from the OP at the time of taking the policy the complainant has suffered from financial loss. After hospitalization the complainant had sent her claim for the expenses incurred for the same with OP for Rs.1,27,000=00 as medical expenses incurred in the said hospital. But the OP Company validly rejected the claim as the above said surgical procedures are not covered under the policy. The OP has honoured their part of the contract by conferring benefits of the hospitalization for Rs.35,000=00 which is totally wrong on the part of the OPs. It is the duty of the OP to discharge its services beyond doubts, whereas in the instant case the OP failed to exercise the services properly and effectively and there is a delay latches and deficiency of service in giving services to its customers and interalia failed to take any action inspite of oral requests and also writing letter. The complainant has availed the services of the OP by getting facilities as promised by the OP at the time of taking insurance policy. So the complainant is a consumer under the CP Act. Hence the present complaint is filed.

3. After service of notice, the OPs no.1 and 2 have appeared through their counsel and filed their versions separately.   

4. The averments of version of the 1^st OP can be stated as under:

The complaint is filed not with respect to any deficiencies in its services nor for any unfair practices adopted by the 1^st OP, but it is purely filed to tarnish the image and bring disrepute to its goods name of the 1^st OP. There is no element of any negligence alleged in the medical services rendered by the 1^st OP hospital to the complainant. The complaint of the complainant is not maintainable in view of mis joinder of parties. The complainant has not alleged any sort of medical negligence or deficiency of service on the part of the OP no.1, so under the circumstances, the 1^st OP has been unnecessarily dragged into this forum. So the complaint is not maintainable either under the law or under the equity. With respect to the averments made in para no.1 to 4 and 6 to 10, the 1^st OP would not like to prefer any explanation as the contents does not speak of any allegations against the 1^st OP. With respect to para 5, it is true that the complainant had made a general enquiry about the availability of cashless facility treatment at the 1^st OP hospital and the same was informed to the complainant that he can avail the cashless facility at the 1^st OP hospital as per the terms and conditions of the insurance policy obtained by the complainant from the 2^nd OP. To avail the cashless treatment facility it is the obligation of the policy holder of the insurance policy to arrange for a pre authorization in favour of the hospital within a stipulated time. The 1^st OP hospital only facilitates in obtaining the pre authorization by providing necessary information with regard to the medical condition and the proposed line of treatment and only upon receiving the pre authorization the 1^st OP hospital is obliged to extend the cashless treatment facility. In the present case, the complainant was admitted to the 1^st OP hospital on 31-10-2011 with features of biliary pancreatitis and underwent emergency endoscopic retrograde cholangio pancreatography. On 1-11-2011 the 1^st OP hospital has facilitated to send request for authorization on behalf of the complainant to TPA, the TPA has denied the cashless hospitalization facility to the complainant, hence the 1^st OP hospital was not obliged to extend the cashless treatment facility to the complainant. Hence there is no deficiency in service by the 1^st OP hospital, so it is prayed to dismiss the complaint with exemplary cost.

5. The averments of version of the 2^nd OP can be stated as under:

The 2^nd OP has issued a happy family floater policy in favour of husband of the complainant one B.Srinivas, Policy bearing no.423200/48/2011/5882 for a period from 26-3-2011 to 25-3-2012, the liability of this OP is as per the terms and conditions of the policy. The complainant has not made out minimum required averments to make out a case of deficiency of service owing to negligence incapacity. So under these circumstances the complaint is not maintainable. The complainant was admitted to the Columbia Asia Hospital, Malleshwaram, Bangalore on 31-10-2011 and 7-11-2011 for acute pancreatitis and undergone lap cholecystectomy and undergone ERCP and CBD stone removal for which the complainant has spent Rs.1,27,000=00 towards the expenses during hospitalization is not admitted. The claim of the complainant has been repudiated vide letter dated 25-4-2012 on the ground that the claim of the complainant is not payable as per exclusion no.XIII of clause 4.3 of terms and conditions of the policy. This OP has rightly rejected the claim of the complainant. The contents of the complaint in para no.3 to 7 are not admitted and the complainant is called upon to prove and substantiate by producing cogent and convincing evidence before this forum. As per exclusion no.XIII of clause 4.3 the complainant is not entitled to get any reimbursement from the OP, under these circumstances the complaint is liable to be dismissed. The claim made by the complainant is highly excessive and fanciful. This OP is not liable to pay any compensation much less Rs.1,82,000=00 claimed by the complainant under different heads. Hence it is prayed to dismiss the complaint with cost.

6. So from the averments of the complaint of the complainant and objection of the OPs no.1 and 2, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OPs no.1 and 2 are negligent and there is deficiency of service on the part of the OPs, in not making settlement of her hospital expenses as prayed in the complaint?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

7. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          8. So as to prove the case, the complainant has filed her affidavit by way of evidence and produced six copies of documents and also two more documents.  On the other hand, one Dr.Aravind Kasargod, Chief Medical Officer with Columbia Asia Hospital who being the 1^st OP has filed his affidavit on behalf of the 1^st OP, and one A.N.Kumaraswamy, Divisional Manager working in the 2^nd OP has filed his affidavit and produced two documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides scrupulously.

9. One Geetha Srinivas, who being the complainant has stated in her affidavit that, she had taken a Medi Claim policy from the 2^nd OP in the year 2011 vide policy no.4232000/48/2011/ 5882 under which the treatment is cashless. She was hospitalized at Columbia Asia at Malleswaram West Bangalore on 31-10-2011 and 7-11-2011 for acute biliary pancreatitis and seems to have undergone lap cholecystectomy done ERCP and CBD stone removal as per the discharge summary of the said hospital. Thereafter, she made a claim for reimbursement of Rs.1,27,000=00 towards expenses incurred during hospitalization with the OP. The OP Company rejected the claim as the said surgical procedure is not covered under the policy. So, the OP has honoured their part of the contract by conferring benefits up to Rs.35,000=00 only but not paid so far any amount. She was informed by the OP that the claim made by her has not been payable due to illness which is pre-existing to the policy and as per the policy terms and conditions all pre existing decease are excluded for four years from the scope of policy. Hence claim is repudiated. She was not informed by the OP about the policy at the time of taking the policy, so she is not bound by the terms and conditions of the policy documents. The OP informed to her that all the hospitalization expenses would be covered in case of any hospitalization. After getting the treatment she called up OP no.1 to check on the cashless facility and then she was informed by OP to get the benefit. On hospitalization she had to pay up the entire amount on her own personal belonging and also borrowed from her friends and relatives due to not getting free treatment and reimbursement of the amount from the OP, so due to deficiency of service from the OP she has suffered from financial loss. After hospitalization she had sent her claim to OP for Rs.1,27,000=00. But the OP rejected the claim as the said surgical procedure is not covered under the policy. The OP has honoured their part of the contract by conferring benefits of the hospitalization for Rs.35,000=00 which is totally wrong on the part of the OPs. The OP failed to exercise the services properly and effectively and there is a delay latches and deficiency of service in giving services to its customers, and no response is coming from the OP’s to reimburse the incurred expenses paid for hospitalization, so the present complaint is filed. So the complaint be allowed and pass an order as prayed in the complaint.

10. The complainant has produced the copy of policy issued by the OP in the name of B.Srinivas for the period from 26-3-2013 to midnight of 25-3-2013 and that policy has been issued in the name of B.Srinivas and his wife Geetha Srinivas and their two daughters and an amount of Rs.18,850=00 has been paid towards the policy premium. Document no.2 is the copy of discharge summary of complainant issued by Columbia Asia Hospital and as per the said discharge summary, the date of admission was 31-10-2011 and date of discharge was 7-11-2011 and admission diagnosis was acute biliary pancreatitis. ERCP on 3-11-2011 Biliary Sphincterotomy done and CBD stone removed, the total amount payable was Rs.1,22,686=00. Two letter copies of the OP dated 13-12-2011 and 7-11-2011 go to show that the complainant was treated for acute biliary pancreatitis from 31-10-2011 to 7-11-2011 and she underwent ERCP and CBD clearance and she needs to undergo lap cholecystectomy to prevent further attacks of biliary colic which would be life threatening. The complainant has produced one letter copy of OP dated 25-4-2012 addressed to her stating that, the claim has been reexamined by the TPA’s and it is found that no new facts have been brought by her which could answer the issues and they agree with the decision of TPA’s in rejecting the claim based on exclusions No.(Xiii) of 4.3 clause which reads as follows: “Surgery of Gal Bladder of Bile Duct excluding malignancy”. The remarks of TPA’s dated 8-12-2011 is produced wherein it is stated that, as per the claim document it has been observed that insured was admitted for treatment of stone in gall bladder and bile duct which is excluded from the scope of policy for two years. Hence claim is not payable.

11.  Let us have a cursory glance at the material evidence of the OP. One Dr.Aravind Kasargod, Chief of Medical Service with Columbia Asia Hospital, Bangalore has stated in his affidavit that, there is no element of any negligence on the part of the 1^st OP, so the complaint is not maintainable. The complainant was informed that she can avail cashless facility at the 1^st OP hospital, as per the terms and conditions of the insurance policy obtained. To avail the cashless treatment facility it is the obligation of the policy holder to arrange for a pre authorization in favour of the hospital within a stipulated time from the insurance company or TPA and upon receiving the pre authorization the 1^st OP hospital is obliged to extend the cashless treatment. The complainant was admitted to the 1^st OP hospital on 31-10-2011 with features of biliary pancreatitis and underwent emergency endoscopic retrograde cholangio pancreatography. On 1-11-2011 the 1^st OP hospital has facilitated to send request of authorization on behalf of the complainant to TPA, and the TPA has denied the cashless hospitalization facility to the complainant quoting the reason: “The cashless hospitalization is denied under exclusion 4.1 as pre existing nature of illness, so the 1^st OP hospital was not obliged to extend the cashless treatment facility to the complainant. The 1^st OP has not denied the medical treatment but only denied the cashless treatment facility. So there is no deficiency in service by the 1^st OP hospital, so it is prayed to dismiss the complaint with exemplary cost.

12. One A.N.Kumaraswamy, Divisional Manager working in the 2^nd OP has stated in his affidavit that, the 2^nd OP has issued a policy in favour of husband of the complainant subject to the terms and conditions of the policy. The complainant has not made out minimum required averments to make out a case of deficiency of service. The claim of the complainant has been repudiated on the ground that the claim of the complainant is not payable as per exclusion no.XIII of clause 4.3 of terms and conditions of the policy. The exclusion no.XIII of clause 4.3 reads as follows: The surgery of gallbladder and bile duct excluding malignancy”. Under these circumstances the complaint is liable to be dismissed. The 2^nd OP is not liable to pay any compensation much less any amount claimed by the complainant. So the complaint be dismissed with cost, in the interest of justice and equity.

13. The 2^nd OP has produced the copy of letter dated 25-4-2012 issued by the Divisional Manager of 2^nd OP to the complainant stating that, based on the certificate the claim has been reexamined by the TPA’s  and it is found that no new facts have been brought by her which could satisfactorily answer the issues. They agree with the decision of TPA’s in rejecting the claim based on exclusions no.(Xiii) of 4.3 clause. Document no.2 is the terms and conditions of the policy by name Happy Family Floater policy of the 1^st OP wherein exclusion no.(Xiii) of 4.3 clause reads as under: “Surgery of gallbladder and bile duct excluding malignancy”. By reading the said exclusion no.(Xii) of 4.3 of the said policy, if there is a surgery of gallbladder and bile duct, it is not payable under exclusion clause.

14. Taking the oral and documentary evidence of OPs no.1 and 2 and compare the same with the material evidence of the complainant, it is made unambiguously clear that, the complainant was admitted to Columbia Asia Hospital, Bangalore on 31-10-2011 and underwent emergency ERCP Biliary sphincterotomy done and CBD stone removal and got discharge on 7-11-2011, when the claim was made to the OPs, after careful scrutiny of the documents of complainant by the 2^nd OP and its TPA, the claim of complainant was rejected as surgery under taken by the complainant was coming under exclusion (Xii) of 4.3 of clause of the policy. In fact, as per terms and conditions of exclusion no.(Xiii) of 4.3 of the policy. In fact as per the terms and conditions exclusion No.(Xiii) of 4.3 of the policy, it is vivid and clear that, surgery of gallbladder and bile duct were coming under exclusion clause and accordingly the OPs have rejected the claim of complainant as per terms and conditions of the policy issued in the name of husband of the complainant. The complainant is entitled to claim if she satisfies the terms and conditions of the policy taken. It is not proper on the part of the complainant to reiterate that the terms and conditions of the policy are not applicable to her. Since surgery underwent by the complainant in respect of Biliary Pancreatitis is coming under the exclusion no.(Xiii) of 4.3 of the policy, so the OPs have rightly rejected the claim of complainant. The 2^nd OP and its TPA have acted strictly in accordance with the terms and conditions of policy and there is no negligence or deficiency of service on their part in rejecting the claim of complainant. So viewing the case of complainant on the back ground of material evidence placed by both parties and relevant terms and conditions of the policy i.e. exclusion No.(Xiii) of 4.3, we are of the opinion that, the oral and documentary evidence of the 2^nd OP are more believable trustworthy and acted upon than the material evidence of complainant. The complainant who comes to forum seeking relief has utterly failed to prove this point with convincing material evidence that, the OPs are negligent and there is deficiency of service on their part in rejecting her claim, and accordingly, we answer this point in a negative.

15. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 18^th day of November 2013).

MEMBER                                 PRESIDENT