Punjab

Faridkot

CC/17/338

Davinder Singh Sandhu - Complainant(s)

Versus

Department of Health & Family Welfare Punjab - Opp.Party(s)

Harlok Nath Muthreja

12 Feb 2019

ORDER

   DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C.   No. :            338 of 2017

Date of Institution:     9.10.2017

Date of Decision :    12.02.2019

 

Davinder Singh Sandhu, aged about 65 years, Retired Deputy Director, Horticulture, Faridkot resident of House No.25, Street No. 3-R, Green Avenue, Faridkot, Tehsil and District Faridkot.

 

                                                                          .........Complainant

Versus

1. Principal Secretary to Government of Punjab, Department of Health & Family Welfare, Punjab, Chandigarh.
2. M D India, Health Care Services (TPA) Pvt Ltd, Max Pro. Info Park, D-38, Industrial Area, Phase-I, Mohali (Punjab).
3. Oriental Insurance, M D India, Health Care Services (TPA) Pvt Ltd, Max Pro. Info Park, D-38, Industrial Area, Phase-I, Mohali, Chandigarh.
4. District Co-ordinator, Oriental Insurance Co. Civil Hospital, Faridkot.
5. Director, Horticulture, Punjab, Kheti Bhawan, Third Floor, Sector 56, Phase-6, S.A.S. Nagar,  Mohali
6. Deputy Director, Horticulture, Opposite Civil Hospital, Faridkot.

                                                                         .............OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:  Sh Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

Present: Sh Naresh Kumar Gupta, Ld Counsel for Complainant,

              Sh Manpreet Singh, Ld Counsel for OP-1,

              Sh Vinod Monga, Ld Counsel for OP-2 & 3,

              Sh Satnam Singh, ADA for Op-5 and 6,

 

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OP-4 Exparte.

                  

ORDER   

(Ajit Aggarwal, President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against  OPs seeking directions to OPs to make payment of insurance claim of Rs.2,48,235/-with interest and for further directing OPs to pay Rs.50,000/- as compensation for deficiency in service and harassment alongwith litigation expenses of Rs.15,000/-.

2                                   Briefly stated, the case of the complainant is that complainant retired as Deputy Director, Horticulture from the office of Deputy Director, Horticulture, Faridkot on 30.09.2010 and he was covered under Punjab Government Employees and Pensioners Health Insurance Scheme having ID No.MD-081469-22122. As per policy, complainant was entitled for cashless treatment and OPs are liable to pay the insurance claim. OPs neither submitted any document nor explained any terms and conditions of policy in question to complainant. It is further submitted that complainant suffered pain in his right hip region and he was unable to bear full body weight over right leg. He consulted Dr Pankaj Mahindra, Department of Ortho-II, Daya Nand Medical College and Hospital, Ludhiana who advised hip replacement and in acute emergency, complainant was admitted there on 4.11.2016, operated on 5.11.2016 and was discharged therefrom on 9.11.2016 with advice to follow up the treatment after consulting Dr Mahindra in OPD

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Complainant spent Rs.2,48,235/- on his hip replacement operation and treatment and thereafter, without any delay, complainant submitted his claim with OPs on 18.01.2017 but till now, Ops have not paid a single penny on account of expenditure spent by him on his treatment.  After that, complainant submitted his representation with District Level Grievance Redressal Committee, Faridkot on 25.07.2017, who sent the matter for settlement to OP-3, but no fruitful result came therefrom. Thereafter, legal notice dated 11.09.2017 was issued by complainant to OPs, but that also served no purpose. Despite repeated requests, OPs have not cleared his claim, which amounts to deficiency in service and trade mal practice on their part and has caused harassment and mental tension to complainant. He has prayed for directing OPs to pay compensation alongwith litigation expenses besides the main relief. Hence, the complaint.

3                                               The counsel for complainant was heard with regard to admission of the complaint and vide order dated 12.10.2017, complaint was admitted and notice was ordered to be issued to the OPs.

4                                               On receipt of the notice, the OP-1 filed written statement wherein asserted that Punjab Government launched health insurance scheme for employees and pensioners vide notification dated 20.10.2015. It is averred that Government has constituted Grievance Redressal Committees at District level as well as State level

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for redressing the complainant, but complainant has  not made any representation before any such committee for redressal of his grievance and thus, complaint filed by complainant is premature and is liable to be dismissed. It is further averred that issue regarding claim of treatment is between complainant and Oriental Insurance Company and there is no relation between complainant and answering OPs. Moreover, complainant has not made any consideration to them and therefore, he is not able to make them party in present case and even nothing is to be done by answering OP and complaint against them is not maintainable and is liable to be dismissed. It is reiterated that complainant has not given any consideration to answering OPs and there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

 5                                            Ld Counsel for OP-2 and 3 filed reply taking legal objections that complainant has committed breach of terms and conditions of Punjab Government Employees and Pensioners Health Insurance Scheme as DMC, Hospital is not empanelled for the ailment of complainant he did not prefer to get treatment from empanelled hospital and did not avail cashless treatment and has thus, violated the terms and conditions of the insurance policy in question. It is averred that reimbursement is not available for treatment in Punjab and Chandigarh where cashless treatment is available. Complainant got treatment from the hospital, which is not empanelled for cashless treatment. Therefore, they have rightly repudiated the claim of

 

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complainant. It is reiterated that there is no deficiency in service on the part of answering OPs and prayed for dismissal of complaint with costs.

 6                                 OP-5 and 6 filed reply taking preliminary objection that complaint in hand is not maintainable as no cause of action arises against them and complaint against them is not maintainable. However, on merits ld counsel for OP-5 and 6 averred that claim of complainant is payable only by OP-3 Insurance Company as only Insurance Company is liable to reimburse the amount to the complainant as per agreement and notification of Punjab Government. Moreover, claim filed by complainant is payable only by the Insurance Company and they have no role in making payment of insurance claim of complainant. All the other allegations of complainant are denied being wrong and incorrect and prayer for dismissal of complaint with costs is made.

7                                                        Parties were given proper opportunities to prove their respective case. Counsel for complainant tendered in evidence her affidavit Ex.C-1 and documents Ex C-2 to C-12 and then, closed their evidence.

8                                                       In order to rebut the evidence of the complainant, ld counsel for OP-1 tendered in evidence affidavit of Dr Jagraj Singh as Ex Op-1 /1 and document Ex OP-1/2 and closed the same. Counsel for OP-2 and 3 tendered in evidence affidavit of Ashwani Kumar Ex OP-2 to 3/1 and document Ex OP-2 to 3/2 and then, closed

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the evidence. Sh Kirandeep Singh Gill tendered in evidence his affidavit as Ex OP-5 & 6/1 and closed the evidence on behalf of OP-5 and OP-6.

9                                                          We have heard the ld counsel for complainant as well as OPs and have carefully gone through evidence and documents placed on record by respective parties.

10                                                               Ld Counsel for complainant vehementally argued that complainant retired on 30.09.2010 and was covered under Punjab Government Employees and Pensioners Health Insurance Scheme. He was entitled for cashless treatment and OPs are liable to pay the insurance claim. OPs neither submitted any document nor explained any terms and conditions of policy in question to complainant. Complainant suffered pain in his right hip region and was unable to bear full body weight over right leg. On consultation with Dr Pankaj Mahindra, Department of Ortho-II, Daya Nand Medical College and Hospital, Ludhiana, he was advised hip replacement and in acute emergency, complainant was admitted there on 4.11.2016 and after Hip replacement surgery, he was discharged on 9.11.2016 with advice to follow up the treatment in consultation with Dr Mahindra in OPD. He spent Rs.2,48,235/- on his treatment and thereafter, he submitted his claim with OPs on 18.01.2017 but till now, they have not cleared his claimon account of expenditure borne by him on his treatment.  Complainant also submitted his representation with District Level Grievance Redressal Committee, Faridkot on 25.07.2017, who sent the

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matter for settlement to OP-3, but no fruitful result came therefrom. Legal notice also served no purpose. Despite repeated requests, OPs have not settled his claim, which amounts to deficiency in service and has caused harassment and mental agony to him. He has prayed for accepting the complaint.

11                                                      To controvert the allegations of complainant, ld counsel for OPs No. 2 and 3 stressed mainly on the point that claim lodged by complainant is not payable as complainant has himself violated the terms and conditions of the policy in question. Reimbursement is not permissible where cashless treatment is available. Complainant did not get conducted his treatment from the empanelled hospital. Daya Nand Medical College and Hospital, Ludhiana is not enlisted under hospitals empanelled for treatment on cashless policy basis and complainant did not prefer to get his treatment from empanelled hospital and did not avail cashless treatment and thus, did not abide by the terms and conditions of the policy in question and therefore, they have rightly rejected the claim of complainant. All the other parties i.e OP-1,  5 and 6 asserted that entire issue pertaining to settlement of insurance claim regarding expenditure spent by complainant on his hip replacement surgery, is between complainant and OP-3 Insurance Company and they have no role to play in making reimbursement of said claim. All the parties reiterated that there is no deficiency in service on their part and prayed for dismissal of complaint.         

 

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12                                                       The case of the complainant is that being a retiree from Horticulture Office, complainant was insured under the policy in question. He suffered pain in hip region and his right leg was unable to bear the body weight. On advice of Orthopaedic,  he underwent hip replacement surgery and remained admitted in DMC Hospital, Ludhiana from 4.11.2016 to 9.11.2016 and paid Rs.2,48,235/- on his treatment. Thereafter, complainant lodged his claim with OPs within stipulated period, but  OPs did not pass his claim. OPs kept sending him to one opposite party to another but nothing needful was done by any OPs to clear his claim. Grievance of complainant is that despite several requests and submission of his representations before District Level Grievance Redressal Committee and to Oriental Insurance Company, all refused to admit the claim on the ground that complainant did not get his treatment conducted from the empanelled hospital. He has prayed for accepting the complaint. In reply, OPs-1, 5 and 6 have stressed mainly on the point that claim  filed by complainant is payable only by OP-3 Insurance Company and they have no role in making reimbursement of claim in question. OP-2 and 3 took plea that claim lodged by complainant is not payable as he has not complied with the terms and conditions of insurance policy and Punjab Government Employees and Pensioners Health Insurance Scheme and did not got operated himself from the empanelled hospital of Ops. Reimbursement is not available where cashless treatment is available. Complainant should have got conducted his hip replacement surgery from the hospital

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empanelled by them for providing cashless treatment. Dayanand Medical College and Hospital, Ludhiana does not fall in the list of hospitals, which are empanelled by them for providing cashless treatment to employees and pensioners. Complainant has violated the terms and conditions of policy and therefore, no reimbursement is admissible to him. All the other allegations are denied being wrong and incorrect and prayed for dismissal of complaint with costs.

13                Now, it is admitted case of the parties that Punjab Government launched a scheme for the cashless medical treatment of their employees, officials and pensioners namely Punjab Government employees and pensioners health Insurance scheme and made a contract with opposite parties. Being the pensioner of Punjab Government, the complainant was beneficiary under this scheme. It is further admitted that the complainant took treatment from Daya Nand Medical College and Hospital, Ludhiana from 4.11.2016 to 9.11.2016 and spent an amount of Rs.2,48,235/-on his treatment and as per Cashless Health Insurance Scheme launched by Government of Punjab, complainant is entitled for reimbursement of expenditure spent by him on his treatment. He lodged claim for the reimbursement of medical expenses borne by him with OPs, which was repudiated by them. Now, the first objection of opposite parties is that this Forum has no jurisdiction to try and decide the present complaint as under the scheme there was Dispute Resolution and Grievance Redressal Committees are constituted to settle the dispute, but the complainant did not approach to these committees and

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filed the present complaint before this Forum. It is settled principle of law that the remedy under Consumer Protection Act is an additional remedy other than available remedies. If there is any contract of arbitration or to settle any dispute by settlement committee under the scheme in that case also the complainant can approach to this Forum instead of arbitrator or dispute settlement committee. In that event the jurisdiction of this Forum is not barred and this Forum can entertain and decide the present complaint. Now, the second and main objection of OPs for non payment of medical expenses of complainant and for repudiation of the claim is that as per notification no reimbursement was available for the treatment in Punjab and Chandigarh, where cashless treatment is available and the beneficiary is entitled for the treatment under the scheme only from the hospitals which are empanelled under the scheme. The OPs argued that complainant did not claim cashless treatment, so he is not entitled for any relief and cannot claim reimbursement of medical expenses and his claim is rightly repudiated.

14                                                From the careful perusal of evidence and documents placed on record and pleading made by parties in above discussion, it is observed that there is no dispute regarding insurance of complainant with OPs. Ops have themselves admitted that he was insured with them as per Cashless Health Insurance Scheme launched by Punjab Government. Reason for rejecting the claim of complainant by OP-2 and 3 is that complainant did not get conducted his hip replacement surgery from hospital empanelled by them for cashless

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treatment. It is also admitted that complainant spent Rs.2,48,235/- with hospital authorities on account of expenditure incurred on his treatment for hip replacement surgery.

15                                                            Ld Counsel for complainant argued that the OPs cannot repudiate insurance claim of complainant on the ground of alleged terms and conditions, which are never supplied or explained to them at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, it is generally seen that Insurance Companies are only interested in earning the premiums and find ways and means to decline the claims. He  further placed reliance on citation 2008(3)RCR (Civil) Page 111 titled as New India Assurance Company Ltd Vs Smt Usha Yadav & Others, wherein our Hon’ble Punjab & Haryana High Court held that it seems that Insurance Companies are only interested in earning premiums and find ways and means to decline the claims. The conditions, which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any Policy. The Insurance Companies in such cases rely upon the clauses of agreement which a person is generally made to sign on dotted lines at the time of obtaining the policy. He further put reliance upon citation 2012(1) RCR (Civil) 901 titled as IFFCO TOKYO General Insurance

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Company Ltd Vs Permanent Lok Adalat (Public Utility Services), Gurgaon and others, wherein our Hon’ble Punjab and Haryana High Court held that Contract act, 1872-Insurance Act, 1938-contract among unequal – Validity – Mediclaim Policy - Exclusion Clause – Pre Existing Disease - Exclusion Clause is standard form of contracts – when bargaining power of the party is unequal and consumer has no real freedom to contract-Courts can strike down such unfair and unreasonable clause in a contract where parties are not equal in bargaining power.

16                                           Ld counsel for complainant submitted that complainant had severe pain in his right hip region and his right leg was unable to bear his full body weight. His condition was very serious and therefore, he was brought to DMC Hospital, Ludhiana under compelling circumstances. As there was an emergency and doctor advised immediate operation of the complainant, his family did as per the advice of doctor to get replaced his hip in DMC, Ludhiana. After the treatment when he lodged the claim with opposite parties, they denied his genuine claim on the basis of certain terms and conditions, which were never explained or supplied to him. From the medical record of the complainant, it is clear that he was admitted in hospital in emergency conditions and in emergency doctor gave him treatment best available at that time in said hospital. It is quite natural in the time of emergency that patient or his attendants will immediately approach to the nearest hospital or doctors and will take treatment as per the advice of doctors to

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save the life of the patient and not supposed to find the hospital or go for the treatment as per  alleged terms and conditions of insurance company, which can be fatal for patient. Even as per notification date 20.10.2015 regarding said insurance scheme copy of which is Ex.OP-2 at clause no.4, it is clear that reimbursement can be taken by any employee/pensioner for medical treatment taken in any other State in India in exceptional circumstances. In view of the above, we are of the opinion that it is generally seen that insurance companies rejected pre authorization for cashless treatment on various grounds and do not allow cashless treatment to patient or hospital, then in that case only the resources left for insured is to reimburse the medical bills.

17                                            From the above discussion, we are of the considered opinion that the complainant took his treatment in emergency conditions and at that time he cannot be supposed to approach any empanelled hospital of opposite parties and to wait for pre-authorization of insurance company for his cashless treatment before starting treatment, which can be threat to his life. OPs wrongly and illegally repudiated the claim of the complainant for reimbursement of his medical bills, which amounts to deficiency in service on their part. Hence, the present complaint is allowed against OP-2 and OP-3. OPs are directed to make payment of insurance claim as per PGI rates alongwith interest @ 9% per annum from date of filing the complaint till final realization. OPs are further directed to pay Rs.5000/- as compensation for harassment and mental agony suffered by him besides Rs.2000/-as

 

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litigation expenses to the complainant. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, the complainant shall be entitled to  initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Complaint against OP-1, 4, 5 and 6 stands hereby dismissed. Copy of order be sent to the parties free of costs. File be consigned to record room.

Announced in Open Forum

Dated : 12.02.2019

(Param Pal Kaur)             (Ajit Aggarwal)

                              Member                          President