Date of filing: 19.7.2016 Date of disposal: 28.6.2017
Complainant: Smt. Arati Banerjee, W/o. Sri Rasamoy Banerjee, Resident of 21/2 Ashok Avenue, A-Zone, Durgapur – 4, PS: Durgapur, District: Burdwan, PIN – 713 204.
-V E R S U S-
Opposite Party: 1. E-Meditek (TPA) Services Limited, represented by its General Manager, Corporate office at Plot – 577, Udyog Vihar Phase – V, Gurgaon, Haryana, PIN – 122 016.
2. National Insurance Company Limited, represented by its General Manager, Divisional Office XII, 3rd Floor 6/90, Padam singh Road, Karol Bagh, New Delhi – 110 005.
Proforma Opposite Party: Steel Authority of India Limited, Represented by Dy. Manager (Personal & Welfare), Durgapur Steel Plant, Room No. 206, T. A. Building, Durgapur – 5, District: Burdwan, West Bengal, PIN – 713 205.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Abhijit Banerjee.
Appeared for the Opposite Party No. 1: None (ex parte).
Appeared for the Opposite Party No. 2: Ld. Advocate, Shyamal Kr. Ganguli.
Appeared for the Proforma Opposite Party : Ld. Advocate, Biswaranjan Bhattacharya (ex parte).
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs specially the OP-1 & 2 have repudiated her legitimate insurance claim illegally and arbitrarily.
The brief fact of the case of the Complainant is that her husband being a retired employee of Durgapur Steel Plant obtained one mediclaim policy from the OP-2 through the OP-1 which was extended by the OP-3 for their employees (existing and retired). The said policy was obtained by the retired employee being the husband of the present Complainant incorporating his wife/spouse. Therefore the present Complainant is an insured of the said policy. The said policy was renewed year to year by the principal insured and also his spouse by making payment of due premium within due period. During validity of the said policy from the month of May to June 2013 the present Complainant has been suffering from swelling on the planter aspect in the right foot. In the month of December this swelling on her right foot aggravated and unbearable pain started. The Complainant became unstable at the time of walk. He was examined by several local doctors, but none of them diagnosed the actual disease correctly. Then the Complainant contacted with CMC, Vellore through an e-mail and sent all the medical reports and documents. A reply was given by the CMC, Vellore to that effect stating that they have understand the disease from which the Complainant was suffering, but for proper examination of the patient and correct diagnosis of the disease the patient need to be admitted at their hospital. After getting reply from CMC, Vellore the Complainant along with her husband went there on 06.02.2014 and on the same date she got admission at CMC, Vellore in the Department of Endocrinology, Diabetes and Metabolism as per advice of the consulting doctor. Being a retired person as the husband of the Complainant has no other source of income, he approached before the hospital authority of CMC, Vellore that if the hospitalization is made under cashless scheme in respect of the mediclaim policy, the same will be beneficial for him. The insurance desk of CMC, Vellore started processing for cashless scheme and provided intimation to the OP-1. After two days the husband of the Complainant got information that after two to three queries against the cashless scheme the OP-1 has stopped communication and did not make any response to that effect. The Complainant was correctly diagnosed and after six days of treatment the doctor opined to discharge her. The husband of the Complainant was directed to clear the outstanding bill amount. He became shocked after getting information from the insurance desk of CMC, Vellore that the OP-1 did not make any response regarding the payment of the outstanding hospital bill of the Complainant and he was under obligation to clear entire bill amount to the tune of Rs. 85,785=00. For this reason the husband of the Complainant had to face serious difficulty to arrange the said amount. But after arranging the amount entire bill amount was paid and the Complainant got discharge on 12.02.2014. After returning back from CMC, Vellore the Complainant gave several letters to the OP-1 asking for reimbursement of the entire claim. The OP-1 replied that as the complainant did not submit entire documents, processing could not be started. Then the Complainant have submitted all the original documents regarding the hospitalization like of IPD bill, reports of doctors, CDs, scan report, X-ray plate etc. and other relevant documents. The OP-1 again asked the Complainant for submission of more documents. In this manner the OP-1 used to make queries one after another and the Complainant replied the same along with required documents. The husband of the Complainant used to visit the branch office of the OP-1 on a regular basis ignoring his old age and other diseases with a hope that OP-1 will reimburse the entire claim amount, but no fruitful result yielded. On 11.12.2014 the OP-1 sent a letter to the husband of the Complainant mentioning that as no active line of treatment was done (not fulfilling the basic need of hospitalization) referring the exclusion clause number 3.0 (b) and 6.0 (v), the claim was repudiated. All the original documents as submitted by the Complainant are lying in the custody of OP-1&2. Due to such deficiency in service as well as unfair trade practice on the part of the OP-1&2 the Complainant had to face serious mental pain and agony and for this reason she approached before the Office of Assistant Director, CA & FBP, Durgapur Regional Office through her husband with a hope to recover her claim amount. The said office arranged reconciliation but it was failed because the OP-1 did not turn up and denied to reimburse the claim amount. Thereafter the Complainant was advised by the said office to approach before this ld. Forum. As per advice of her ld. Advocate she filed a complaint being no-135/2015 before this ld. Forum without intimating this Complainant or her husband, but the said Consumer Complaint was dismissed for default due to non-taking of any steps by the Complainant. As the Complainant did not receive any intimation by any authority she could not be present at the time of hearing before this ld. Forum. On 23.02.2016 the Complainant wrote a letter to the OP-1&2 asking them the reason for rejection of her claim. The said letter was duly served, but no reply is forthcoming from their end till date. Such action of the OPs shows their deficiency in service as well as unfair trade practice. Having no other alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP-1 & 2 to make payment a sum of Rs. 85,785=00 towards the reimbursement of the expenditure of her medical treatment, Rs. 1, 50,000=00 as compensation due to harassment, mental pain and agony and litigation cost of Rs. 20,000=00.
The petition of complaint has been contested by the OP-2 by filing written version contending that the Complainant was enjoying a mediclaim policy which was issued in faovur of the ex-employee of SAIL and his spouse. The same was valid up to 2014. The group medical insurance policy for retired employees of SAIL was on the basis of the contract by and between SAIL and National Insurance Company Limited under operation of the scheme based on stipulated terms and conditions as per the said Group Medical Insurance policy entitling the retired employees towards enjoyment of certain treatment facilities according to the terms and conditions of the policy. Upon receipt of claim intimation by the OP-1 from the Complainant on 08.02.2014 regarding cashless request for treatment of Arati Banerjee, the OP-1 informed that for processing of the cashless request some documents were urgently required by issuing a letter a letter dated 11.2.2014 through the medical office of the OP-1. The Complainant being the spouse of the ex-employee of SAIL Mr. Rashamoy Banerjee submitted one claim form through online for reimbursement of the treatment expenditure incurred by him for his wife to the tune of Rs. 85,785=00 along with submission of some documents addressed to the OP-2 who had acknowledged the same on 25.02.2014. The Medical Officer of the OP-1 by issuing a letter dated 18.05.2014 requested the principal insured to provide pending documents for processing of the claim in respect of the earlier letter dated 08.02.2014. Again the OP-1 forwarded a letter dated 30.09.2014 to the principal insured stating that the films of CT Scan and X-ray reports are to be sent on urgent basis either through courier or in person and upon receipt of the same admissibility of the claim will be decided by the appropriate authority. Mr. Banerjee submitted some documents i.e. one original CD along with other documents mentioning the treatment of his wife at CMC, Vellore along with a history of acute Eight Charcoats Foots and discharge certificate dated 12.02.2014 for which he had to pay a total bill of Rs. 85,785=00. By issuing a letter dated 27.11.2014 to the OP-1 stated by Mr. R. Banerjee that all the reports and documents have already been submitted by him. On 11.02.2014 the OP-1 informed the OP-2 that it is enclosing a draft repudiation letter stating the reasons for repudiation and also forwarded some of the relevant documents for taking decision of repudiation of the claim. On 11.12.2014 the OP-2 informed Mr. Banerjee that on scrutiny of all relevant documents it was observed that Arati Banerjee being the wife of Mr. R. Banerjee was admitted at CMC, Vellore with complaint of pain and swelling on his right foot associated with deformity. Investigation done and it was diagnosed with grade foot charcoats foot managed with advise of restrict weight bearing on right foot ankle orthosis, glycemic control managed with twice a day dose of insulin, hypertension managed with oral anti hypertensive, anemia treated with Tablet Livogin, there was no active line of treatment which justify the need of hospitalization and thus it was informed that the claim is not payable as per:-
- Exclusion no active line of treatment (not fulfilling the basic need of hospitalization reference 3.0 (b) and 6.0 (v)) and thus the claim was repudiated. According to the OP-2 as there is no deficiency in service as well as unfair trade practice against this OP as the information of repudiation has already been informed to the Complainant by issuing letter, hence this complaint is liable to be dismissed.
After admission of the complaint notices were issued upon the OPs through speed post with A/D from the office of this ld. Forum. On 24.08.2016 the OP-3 by filing a petition prayed further date for filing written version and on that date notices could not be served to the OP-1. The OP-2 also prayed time for filing written version. On 20.09.2016 track report has revealed that OP-1 received the notice but none was appeared. Accordingly, it was written in the order no-4, dated 20.09.2016 that the case will be heard ex parte against the OP-1. On that date OP-2 filed written version with a copy to the other side. The OP-3 did not file written version but as the statutory period for filing written version had not been expired, hence further date was given to OP-3 for filing written version. On 19.10.2016 as no step was taken by the OP-3 hence it was ordered by this ld. Forum that the case will be heard ex parte against the OP-3 also. During final argument none was present on behalf of the OP-1 & 3 for advancing their oral argument to contest the complaint. So we took up the argument ex parte against the OP-1 & 3 in presence of the OP-2. Be it mentioned that on the date of final argument the Complainant was absent on calls. But as the evidence of the complainant exists in the record, we took up the complaint for disposal of the same on merit considering the evidence of the Complainant. But subsequently, i.e. after completion of the argument the ld. Counsel for the Complainant appeared and prayed for giving him a chance to advance his argument on behalf of the Complainant. Due to no objection on behalf of the OP-2 argument was advanced by the ld. Counsel for the Complainant.
We have carefully perused the record; papers and documents submitted by the contesting parties and heard argument at length advanced by the ld. Counsel for the contesting parties. It is seen by us that there are some admitted facts in the case in hand i.e. the husband of the Complainant obtained one mediclaim policy from the OP-2 through OP-1 covering himself and his wife being a retired employee of Durgapur Steel Plant, due premium was paid, the said policy was renewed from time to time, the wife of the principal insured felt discomfort due to swelling on the planter aspect in the right foot, swelling aggravated, she had to suffer unbearable pain, she visited several doctors of her locality, none of them had correctly diagnosed her disease, subsequently the Complainant contacted with CMC, Vellore through an e-mail, entire medical and treatment related papers of her was transmitted therein, upon perusal of the same CMC, Vellore replied that for proper examination and diagnosis of the disease of the patient the Complainant should be admitted therein, accordingly the Complainant went on 06.02.2014, she got admission in the Department of Endocrinology, Diabetes and Metabolism of CMC, Vellore as per advise of the consulting doctor, the husband of the Complainant approached before the insurance desk of CMC, Vellore for cashless scheme towards the treatment of his wife, cashless facility was denied by the OP-1, the Complainant got discharge on 12.02.2014, at the time of discharge the Complainant had to pay a sum of Rs. 85,785=00 towards the treatment cost to the CMC, Vellore, after returning at residence claim was lodged with the OP-1 for reimbursement of the amount, several documents sought for, the same was complied with by the Complainant, the husband of the Complainant visited the branch office of the OP-1 on several occasions, though assurance was given to him that claim will be settled but to no effect, on 11.12.2014 the Complainant received a letter whereby her claim was repudiated by the OP-1 based on the clause being No. 3.0 (d) and 6.0. (v), the claim was repudiated on the ground that no active line of treatment was provided, being denied the Complainant approached before the A.D., CA& FBP, Durgapur, though conciliation was arranged but no fruitful result yielded, being aggrieved with the inaction of the OPs this complaint was filed by the Complainant praying for making direction to the OP-1&2 to reimburse the amount incurred by her towards the treatment to the tune of Rs. 85,785=00 and other reliefs. The allegation of the Complainant is that though the policy was valid during her treatment but the OPs have repudiated her legitimate insurance claim based on false pretext which can be defined as deficiency in service as well as unfair trade practice on behalf of the OPs.
The contention of the OP-2 is that the claim was rightly repudiate by it based on the exclusion clause of the concerned policy wherein it is enumerated that in case of non-providing of any active line of treatment to the patient, the insured is not entitled to get any amount towards reimbursement/cashless facility in respect of the policy. The OP-2 has further stated that as the said clause had been accepted by the Complainant herself by putting her signature, hence neither the Complainant nor the OPs can travel beyond the said clause. According to the OP-2 its action cannot be termed as deficiency in service as the information of repudiation has duly been intimated to the Complainant by issuing letter dated 11.12.2014. Hence prayer is made by the OP-2 for dismissal of the complaint.
During argument an important question and plea has been raised by the ld. Counsel for the OP-2 i.e. the total sum assured of the concerned policy was issued for sum of Rs. 20, 86, 80, 00,000=00 which is beyond the pecuniary jurisdiction of this ld. Forum. It is further submitted by the OP-2 that in view of the recent judgment passed by the larger Bench of Hon’ble NCDRC in Ambrish Sukla’s case Their Lordships have held that at the time of determination of pecuniary jurisdiction of any complaint total cost of the service or goods and compensation as sought for should be taken into consideration. As the total sum assured of the instant policy reveals the total cost of the service of the OPs has exceeded the pecuniary jurisdiction of this Ld. Forum, hence the complaint should go on this score alone.
In respect of such submission advanced by the ld. Counsel for the OP-2 we have carefully perused the Annexure ‘A’ as filed by the OP-2 along with its written version from where it is evident that the Group Mediclaim Insurance Policy was issued by the OP-2 for retired employees of SAIL. The cost of the service as mentioned by the OP-2 admittedly is for Rs. 20,86,80,00,000=00, but the said sum insured shows that several persons who were the retired employees of SAIL were under the coverage of the said policy, not only this Complainant. It is also evident from the description of the policy copy that IPD (hospitalization) benefit is declared for Rs. 2,00,000=00 per member per policy period with clubbing (floater) facility under hospitalization with his/her spouse which means that the hospitalization benefit of Rs. 2,00,000=00 per member. From such averment it is clear that the present Complainant was under the coverage of the said insurance policy being the spouse of her husband who retired from SAIL for Rs. 2, 00,000=00 only. It is also seen by us that that at the time of renewal of the policy of the Complainant from year to year a single card was provided in the name of the insured. Therefore, the contention as made out by the OP-2 cannot be implemented in the case in hand and the ruling on which the OP-2 has placed its reliance is not same and identical with the instant complaint and hence does not match.
The ld. Counsel for the OP-2 has further stated that the Complainant initially had filed one complaint before this ld. Forum being Consumer Complaint No. 135/2015 which was dismissed for default due to non-taking of any steps by the Complainant, so this complaint cannot be maintainable. In this respect the ld. Counsel for the Complainant has placed his reliance on the judgment passed by the Hon’ble Supreme Court reported in 2016 (2) ICC (SC) 355, passed in the case of Indian Machinery Co. Vs. M/s. Ansal Housing and Construction Ltd. Upon perusal of the said judgment in our view, this complaint is very well maintainable before this ld. Forum inspite of dismissal of the earlier complaint.
Now we turn up our eyes to the most important factor as to whether the Complainant is entitled to get the amount as sought for in the prayer portion to the tune of Rs. 85,785=00 which was incurred for her treatment at CMC, Vellore or not. Admittedly after returning home the Complainant lodged her insurance claim with the Insurance Company along with relevant documents and papers. Subsequently some papers were sought for by the OP-2 and the Complainant complied with the same. Inspite of this the OP-1 being the third party administrator issued letter of repudiation upon the principal insured being the husband of the complainant on 11.12.2014 wherein it is stated which runs as follows:-
‘We are in receipt of the claim form and associated documents of Arati Banerjee. On scrutiny of the same we observed that he/she was admitted in CMC, Vellore, patient was admitted with complaint of pain and swelling right foot associated with deformity investigation done diagnosed with grade foot Charcot’s foot managed with advice of restrict weight bearing on right foot ankle foot orthosis, glysemic control managed with twice a day does of insulin, hypertension managed with oral anti hypertensives, anemia treated with tablet livogen, there was no active line of treatment which justify the need of hospitalization. In this regard we wish to inform you that the claim is payable as per – 1) Exclusion – No active line of treatment (Not fulfilling the basic need of hospitalization refer 3.0 (b) and 6.0 (v). In view of the above, we regret to inform you that, as per the instructions of National Insurance Co. Ltd. the claim is being denied on account of the above-mentioned terms of the policy. For any further clarifications, you may directly contact the insurer’.
From the content of the said repudiation letter it is clear to us that the claim of the Complainant was repudiated on the ground that no active line of treatment was done and in the letter two clauses/sub clauses has been mentioned i.e. 3.0 (b) and 6.0 (v). Now we are to mention as to what is written in the said clauses.
3.0(b)
b. Hospitalization (IPD):
- Hospitalization facility can be availed from any Hospital or Registered Nursing Home in India. However, the Mediclaim member can avail cashless facility under Hospitalization, only in Hospitals having 50 beds or above, which is empanelled by the Insurance Company for the purpose. However, this minimum Bed criteria of 50 Beds, shall not apply to Single speciality Eye Care Hospitals, for empanelment of Hospitals for Cashless treatment for eye diseases, by the Insurance Company.
- (a) When treatment/surgeries, such as, Dialysis, Chemotherapy, Radiotherapy, Ophthalmic Surgeries (Cataract/Glaucoma Surgeries etc.), Lithotripsy, Laparoscopic Surgeries, Microsurgery etc., is taken in the Hospital/Nursing Home and the insured is discharged on the same day, the treatment will be considered to be taken under Hospitalization Benefit Section. Indicative List of such procedures is given at the Annexure-XIV.
- In addition to the indicative list of Day-care procedures, any other surgeries/procedures agreed to by SAIL, Insurance Company and TPA, requiring less 24 hours hospitalization will also be considered under hospitalization.
-
-
Important exclusions:
Under SAIL Mediclaim Policy, the Insurance Company shall not be liable to make any payment in respect of any expenses whatsoever incurred by the insured person in connection with …………………..
(v) convalescence, general debility, “Run-down” condition or rest cure, congenital diseases or defects, sterility, venereal diseases, intentional self-injury and use of intoxicating drugs……………………
We have carefully perused the clauses and sub clauses based on which the OP-2 has repudiated the claim of the Complainant on the ground that no active line of treatment was given to the Complainant by the CMC, Vellore. From the above-mentioned clauses it is clear that for getting insurance benefit/reimbursement the patient had to be admitted in a hospital/nursing home at least 24 hours; otherwise he/she is not entitled to lodge an insurance claim under the policy. In the instant complaint the Complainant was admitted at the CMC, Vellore for 6 days, which is obviously exceeded 24 hours. No whisper is made in the above-mentioned clauses based on which claim was rejected that due to not providing any active line of treatment, the insured is not entitled to get any insurance benefit under the policy. Though in the repudiation letter it is mentioned that as no active line of treatment was done, hence the Complainant is not entitled to get any claim under the policy but in the above-mentioned clauses no such mentioning is made by the Insurance Company. Therefore, the ground on which the claim was repudiated cannot be termed as legal. Such action on behalf of the OP-1&2 cannot be encouraged in the eye of law, rather denotes their deficiency in service. It is true that as the Complainant was denied to get legitimate insurance claim from the OP-1&2 and had to run from pillar to post, made several written correspondences but to no effect, hence having no alternative approached before this Court of Law for redressal of his grievance, therefore admittedly by filing this complaint and proceeding of the same the Complainant has incurred some expenses, for which in our view the Complainant is entitled to get compensation and litigation cost from the OP-1 & 2. Be it mentioned that admittedly premium amount was received by the Insurance Company but the OP-1 being the TPA had assessed the entitlement of the claim of the Complainant. As the OP-1 came to the conclusion that the Complainant is not entitled to get any insurance claim based on those clauses which is legal and not mentioned in the copy of the insurance policy, hence the OP-1 is also liable to make payment compensation to the complainant.
In respect of the OP-3 we have noticed that no allegation has been made out by the Complainant within four corners of the complaint and no relief has been sought for against the OP-3. Considering the petition of complaint and the other related documents, in our view the complaint does not stand against the OP-3.
Going by the foregoing discussions, hence it is
O r d e r e d
that the Consumer Complaint being No. 120/2016 is allowed on contest against the OP-2 with cost and allowed ex parte with cost against the OP-1 and dismissed ex parte against the Proforma OP-3 without any cost. The OP-2 is directed to pay a sum of Rs. 85,785=00 to the Complainant towards the medical expenditure incurred by her in view of the policy terms and the conditions within 45 days from the date of this judgment, in default, the said amount shall carry interest @6% per annum for the default period. The OP-1 & 2 are directed to pay either jointly or severally a sum of Rs. 2,000=00 as compensation and litigation cost of Rs. 1,000=00 to the Complainant within 45 days from the date of this judgment, failing which the Complainant is at liberty to put the entire award/order in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
