DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.1079 of 2018
Date of institution: 18.10.2018 Date of decision : 15.10.2019
Surjit Ahuja, resident of H.No.-B 004/00639, Dashmesh Nagar, Jhugian Road, Kharar, SAS Nagar.
…….Complainant
Versus
1. Health Insurance TPA of India Ltd., Division IX 302, N N Mall, Sector 3, Rohini, New Delhi 110085.
2. Health Insurance TPA of India Ltd., HO, 2nd Floor, Magestic Omnia Building (Next to HDFC Building Complex) A-110, Noida, Sector 4, Uttar Pradesh.
3. Max Super Speciality Hospital, A unit of Hometrial Estate Pvt. Ltd., Near Civil Hospital, Phase 6, Mohali, Punjab -160055.
4. National Insurance Company Ltd. Divisional Office, SCO No.40-41, First Floor, Phase-5, Mohali (SAS Nagar) through Sr. Divisional Manager.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Gaurav Verma, counsel for complainant.
Shri Madan Singh Dasila, counsel for OP No.1,2 and 4
Complaint against OP No.3 not admitted vide order dated 01.11.2018.
Order by :- Shri G.K. Dhir, President.
Order
Complainant alongwith his spouse Mrs. Kuldeep Kaur Ahuja, purchased Parivar Mediclaim Policy No.360400501710004669 on 18.02.2018 by paying premium of Rs.18,941/- to OP No.1 and 2. That policy was having validity upto 17.02.2019. Insurance coverage for Rs.5.00 lakhs was provided through that policy. Wife of complainant Smt. Kuldeep Kaur was having intense pain in her knees for quite some time due to which she had been taking medicines. This pain did not subsidize and as such OP No.3 was approached for diagnosis and treatment purposes. OP No.3 after checking advised for knee replacement. OP No.3 gave three plans for knee replacement, out of which complainant gave option for treatment priced at Rs.2,91,950/-. Wife of complainant stood admitted in OP No.3 hospital on 12.09.2018 for knee replacement and on that date itself, claim was submitted. On late midnight of 12.09.2018, OP No.1 and 2 sent mail to OP No.3 to arrange for previous 5 years policy covers from complainant, so that approval of total claim amount of Rs.2,91,950/- may take place. In the morning of 13.09.2018 complainant sent all 5 years policies to OP No.1 and 2 for enabling them to process the claim for amount of Rs.2,91,950/-. After approval got by OP No.3 from OP No.1 and 2, operation was performed by OP No.3. Wife of complainant remained admitted in hospital untill 18.09.2018. On that date, complainant went to OP No.3 for final clearance and for signing discharge documents. Final bill of amount of Rs.2,76,332/- was prepared by OP No.3, but earlier granted approval for amount of Rs.2,90,950/- was reduced to Rs.1.00 lakh. This is despite the fact that final payable bill amount was of Rs.2,76,332/-. Complainant got knowledge of this reduction only when he went to OP No.3 for final clearance on 18.09.2018. Reasons given for reduction of claim were that authorization for surgical management as per ailment capping was 50% of S.I. for anyone illness. SI was restricted to Rs.2.00 lakhs. Final settlement will be as per agreed tariff, as per this order of reduction of claim. Complainant was forced to pay Rs.1,76,332/- after arranging money from his sources with great difficulty. OP No.3 held hostage to wife of complainant because discharge formalities were completed only after arranging that money by complainant. Reduction of approved amount was not informed in advance to complainant and had the same been informed in advance, then complainant would have postponed the operation for sometime i.e. untill arranging for big amount of Rs.1,76,332/-. Act of reducing the amount of claim alleged to be unfair trade practice on part of OPs and that is why this complaint filed after serving legal notice dated 25.09.2018 on OPs, for seeking refund of balance incurred medical expenses of Rs.1,76,332/- with interest @ 24% per annum. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.50,000/- more claimed.
2. Complaint against OP No.3 not admitted vide order dated 01.11.2018.
3. OP No.1, 2 and 4 filed joint reply by pleading inter alia as if complaint has not been filed in accordance with provisions of Consumer Protection Act and the rules framed thereunder, due to which same is not maintainable in present form; concealments of material facts for filing this false and misconceived compliant also pleaded. Admittedly complainant lodged claim through OP No.1 and 2. Discharge summary of treatment provides that complaints of pain are long standing i.e. approximately for the last 4/5 years, but those became severe for the last 2/3 months. Complainant concealed this fact from OPs, while getting policy coverage for period from 18.02.2014 to 17.02.2015 and 18.02.2015 to 17.02.2016. At that time sum insured was Rs.2.00 lakhs. As per coverage Clause 2.C (a), only 50% of sum insured was payable and that is why OPs paid Rs.1.00 lakh i.e. 50% of the insured sum. Reply of legal notice was sent by email. Insured violated terms and conditions contained in Clause 4.3 (xv) providing for waiting period for 2 years for any joint replacement of any kind unless arising out of accident. Complainant did not disclose this fact in his previous policy, despite the fact that pain started for the last 4/5 years. Complainant also violated condition No.2.3.1 of the Prospectus by which approval for enhancement of insurance coverage through renewal is made. Complainant got enhanced the sum insured in the policy for years of 2017-18 and 2018-19 because complainant was facing problem for the last 4/5 years. This preplanned enhancement of insurance coverage was done with bad intention of getting undue benefit. As per coverage Clause 2.C (a) of terms and conditions of the policy 50% of insured sum payable at the most. As per definition Clause No.3 sub clause 3.2 any one illness means continuous period of illness and it includes relapse within 45 days from the date of last consultation with the hospital where treatment has been got. Complainant was informed through OP No.1 and 2 about the same. Answering OPs felt apology for giving approval of Rs.2,90,250/- because the same was inadvertently given. As due amount has already been paid as per terms and conditions of the policy and as such it is claimed that complaint is not maintainable. Declaration submitted by complainant on 12.09.2018 alongwith claim form and other documents as well as copies of pre authorization approval letters etc. are produced alongwith discharge voucher-cum- claim settlement letter dated 01.11.2018. Present complaint has been filed by husband of patient Kuldeep Kaur and not by herself. There is no special power of attorney or other authority letter issued in favour of complainant by his wife and as such complaint deserves to be dismissed on this score also. On payment of premium, policies were issued and terms and conditions of the policies were supplied to the insured. Admittedly complainant had been getting policies from OP No.1 since from 2014 and they never raised any objection regarding non supply of policy terms and conditions earlier. Complainant himself has admitted that his wife was having intense pain in her knees for quite some time and was taking medicines and as such same shows as if this problem was faced for the last 4/5 years, but this fact has been concealed. Admittedly complainant mailed his last 5 years insurance policies to OPs and OP No.4 inadvertently gave approval for amount of Rs.2,90,250/- against the estimated cost of Rs.3,15,000/- sent by OP No.3. That approval was given by mistake by officials of OP No.4 and that is why the same was withdrawn. For the years 2013 to 2015 sum insured was Rs.2.00 lakhs and that is why payment of Rs.1.00 lakh was made. Other averments of the complaint denied.
3. Parties produced documents/evidence. As per latest instructions received from Hon’ble State Consumer Disputes Redressal Commission Punjab. cases should be decided on the basis of produced documents and affidavits (as self attested) and as such after submission by counsel for parties that no more documents to be filed, oral arguments of counsel for parties heard and records gone through.
4. OP No.4 the insurer in this case was impleaded after filing of application. From the pleaded facts, there remains no dispute that complainant for self and his wife purchased medi claim insurance policy with validity for period from 18.02.2018 to 17.02.2019 and thereafter wife of complainant got treatment of knee replacement by way of admission in OP No.3 hospital during period from 12.09.2018 to 18.09.2018. Undisputedly earlier approval for cashless treatment for amount of Rs.2,90,250/- was granted by OP No.1, 2, and 4, but subsequently same was withdrawn at the time of discharge of wife of complainant from hospital. That pre authorization approval letter for this treatment is placed on record as Ex.C-4 by complainant. Perusal of same reveals that for the treatment in question got by wife of complainant, approval for amount of Rs.2,90,250/- was granted on 13.09.2018, but subsequently the same was reduced by amount of Rs.1,90,250/- and the authorization remained for amount of Rs.1.00 lakh only. Policy period in Ex.C-4 mentioned as 18.02.2018 to 17.02.2019 and perusal of Ex.C-1 reveals that for this policy period coverage for insurance claim was of Rs.5.00 lakhs. Approval for amount of Rs.2,90,250/- was granted earlier on the basis of estimated expenditure of Rs.3,16,700/- as disclosed by contents of Ex.C-2. Perusal of Ex.C-3 (A) shows as if earlier too policy was purchased by complainant and his wife for period from 18.02.2014 to midnight of 17.02.2015 for insured sum of Rs.2.00 lakhs and renewal of same policy with validity for period from 18.02.2015 to 17.02.2016 took place as disclosed by Ex.C-3 (B). Further this validity took place for period from 18.02.2016 to 17.02.2017 as disclosed by Ex.C-3 (C) and as such it is obvious from perusal of Ex.C-3 (a) to Ex.C-3 (c) as if the earlier coverage was for amount of Rs.2.00 lakhs for period from 18.02.2014 to 17.02.2017. However, this coverage extended from Rs.2.00 lakhs to Rs.5.00 lakhs while issuing the policy having validity for period from 18.02.2017 to midnight of 17.02.2018 as disclosed by Ex.C-3 (d) and as such this documentary evidence produced on record establishes that actually complainant and his wife were having insurance coverage for Rs.5.00 lakhs w.e.f. 18.02.2017 onwards. As operation in question took place in September, 2018 and as such insurance coverage was for amount of Rs.5.00 lakhs during this period.
5. Perusal of Ex.C-5 settlement receipt with OP No.3 establishes that insurance company paid Rs.1.00 lakh out of total bill amount of Rs.2,76,332/- and that is why complainant had to pay Rs.1,76,332/-. As this amount of Rs.1,76,332/- not paid and that is why complainant sent legal notice through counsel through postal receipt Ex.C-6 on 26.09.2018. In reply to this legal notice Ex.C-7, OPs themselves admitted about reduction of approval limit to Rs.1.00 lakh from initial approval of Rs.2,90,250/-. Factum regarding treatment during period from 12.09.2018 to 18.09.2018 admitted through this reply Ex.C-7 by OPs and as such dispute in that respect does not remain. So from all this it is obvious that complainant had to pay Rs.1,76,332/- for settling treatment expenses bill with OP No.3.
6. It is vehemently contended by counsel for OP No.1,2, and 4 that complainant failed to disclose about sufferance of his wife from knee pain at the time of submission of proposal form and as such there is concealment of material facts and amount of Rs.1.00 lakh rightly paid by keeping in view insurance coverage amount of Rs.2.00 lakhs. Ex.OP-2 is the same thing as is Ex.C-1. Certainly Clause 2.C of terms and conditions of policy provides that insurer liable to pay 50% of the sum insured out of total expenses incurred for anyone illness. Being so, submission advanced by counsel for OPs has force that liability of insurer in no eventuality will be in excess of 50% of sum insured. That sum insured was of amount of Rs.5.00 lakhs at the time of getting treatment and also at the time of purchase of policy for period from 18.02.2017 to 17.02.2018 as disclosed by Ex.C-3 (d) and as such liability of insurer for reimbursement at the most will be of Rs.2.50 lakhs in view of this Clause 2.C of terms and conditions of the policy.
7. As per Clause 3.2 of terms and conditions of policy anyone illness means continuous period of illness and it includes relapse within 45 days from the date of last consultation with the hospital from where treatment has been taken. Such relapse of 45 days has not taken place in this case because estimate Ex.C-2 was obtained on 12.09.2018 and treatment got immediately thereafter. As coverage is for anyone illness, which includes ailment of knee pain or of replacement, and as such in view of Clause 2.C of terms and conditions of policy, certainly entitlement of complainant for reimbursement of medical expenses of Rs.2.50 lakhs is there because of coverage of insured for Rs.5.00 lakhs.
8. Counsel for OPs vehemently contends that treatment for joint replacement of any kind unless arising out of accident has waiting period of two years as per Clause 4.3 of terms and conditions of the policy and as such in view of extension of coverage insured sum from Rs.2.00 lakhs to Rs.5.00 lakhs, entitlement of complainant will be 50% of the insured amount of Rs.2.00 lakhs. As approval for Rs.1.00 lakh has been granted and as such it is vehemently contended that such approval is properly granted, due to which there is no deficiency in service on part of insurer. After going through the explanation appended with Clause 4.3 of terms and conditions of policy, it is made out that if the insured person is aware of existence of congenital internal diseases/defects before inception of the policy, then same will be treated as pre existing disease. Disclosure of pre existing disease is essential in view of Clause 5.1 of terms and conditions of policy because in case such disclosure not made, then policy to become void and as such it is vehemently contended that non disclosure of joint pain disease itself rendered the policy void because there is suppression of material facts in that respect. That submission of counsel for OPs again has no force because as discussed hereinafter, it is made out that complainant or his wife or any of them were not aware of necessity of joint replacement at the time of purchase of the policy in the first instance in 2014 or subsequently, when enhancement of insurance coverage to Rs.5.00 lakhs took place, while purchasing the policy having validity for period from 18.02.2017 to 17.02.2018. A person having normal pain in knees may suffer that pain in severity or a normal pain. Normal pain is general wear and tear pain on account of degenerative process due to old age and as such if wife of complainant was having pain in knees at the time of extension of insurance coverage to Rs.5.00 lakhs, and not pain of severe nature, then it was not essential for complainant or his wife to disclose about the same.
9. Certainly Clause 5.11 of terms and conditions of policy provides that insurance company will not be liable to make payment under the policy in respect of any claim, if such claim is fraudulent, in any manner or is supported by fraudulent means or by any other person acting on his behalf, but same in fact is not the position as discussed hereinafter and as such submission of counsel for OPs in this respect is also devoid of force.
10. As per search on google internet, it is made out that knee replacement surgery is a common operation that involves replacing the damaged, worn or diseased knee with an artificial joint. There is no material produced on record by OPs that knee replacement in this case took place due to damaged or worn or diseased condition of knee of wife of complainant since from 2014 and as such OPs failed to establish that actually complainant or his wife preplanned to enhance the coverage limit from Rs.2.00 lakhs to Rs.5.00 lakhs, so that expenses on replacement of knee joint may be borne by insurer. As per search on the google internet knee replacement is necessary when the knee joint is worn or damaged to such extent that mobility is reduced or one remains in pain even while resting. There is no material on the record to establish that 3/4 years before knee replacement operation conducted on wife of complainant, her knee joint was worn or damaged to such extent that her mobility was reduced or that she was having pain even while resting. The most common reason for knee replacement surgery is osteoarthritis as per search on the google internet. No material produced on record to establish that wife of complainant was suffering from osteoarthritis at the time of purchase of first policy in 2014 or at the time of getting coverage extended from Rs.2.00 lakhs to Rs.5.00 lakhs. Further as per search on google internet, other health conditions that cause knee damage include rheumatoid arthritis; haemophilia; gout; disorders that cause unusual bone growth; death of bone in the knee joint following blood supply problem; knee injury and knee deformity with pain and loss of cartilage. There is no material produced on record by OPs to establish that damage to the knee of wife of complainant caused on account of any of above referred ailments or disorders or deformity during 2014 to 2017 and as such submission advanced by counsel for OPs has no force that complainant or his wife were aware of necessity of knee replacement at the time of purchase of policy or at the time of getting extension for coverage. Knee replacement is a major surgery which is normally recommended, if other treatments like that of physiotherapy or of providing of steroid injections have not reduced pain or improved mobility. Such knee replacement advised as and when one happens to have severe pain, swelling and stiffness in knee joints resulting in reduction of mobility, also is a fact borne from perusal of google internet search, hard copy of which is made part of this file. There is nothing on record to suggest that wife of complainant at the time of knee replacement was having severe pain a year or so prior to replacement or that there was swelling or stiffness in her knee joints resulting in reduction of her mobility. When such were not the conditions, then certainly complainant or his wife could have not expected about necessity of knee replacement surgery at the time of extension of coverage from Rs.2 lakhs to Rs.5 lakhs.
11. As and when the age of the insured for medi claim insurance is more than 45 years, then as per instructions issued by IRDA, it is the duty of insurer to put the insured to thorough medical examination. If this is not done, then claim raised after issuance of insurance policy cannot be rejected on account of non disclosure of the fact of pre existing disease when policy was obtained. This in fact is the law laid down by Hon’ble Chandigarh State Consumer Disputes Redressal Commission, UT, Chandigarh in case titled as SBI General Insurance Company Ltd. Vs. Balwinder Singh Jolly & Anr. 2016(4) CLT 372. Age of complainant as insured was 56 years, but of his wife was 53 years at the time of purchase of first policy having validity for period from 18.02.2014 to 17.02.2015 as disclosed by Ex.C-3 (a) and as such it is obvious that both complainant and his wife were more than 45 years of age at the time of purchase of first policy. In such circumstances, it was the duty of insure to get medical examination of complainant and his wife conducted thoroughly before issue of policy in question. Such thorough medical examination not shown to be got conducted by insurer and as such now insurer estopped by their act and conduct from claiming that the claim deserves to be rejected due to non disclosure of pre existing disease. Being so, benefit of above referred terms and conditions regarding suppression of material facts (as quoted by counsel for OPs) cannot be got by OPs.
12. Perusal of medical record produced by OPs as Annexure OP-6 reveals that actually amount of Rs.1,76,332/- was spent by complainant because copy of bill issued by OP No.3 also produced on record in this respect by OPs. Copies of investigation reports enclosed with Annexure OP-6 shows as if investigation report in the form of x-ray knee (both joints – AP & Lateral) was conducted on 12.09.2018 when osteophytes were seen around tibiofemoral and patellofemoral joint spaces with reduction in patellofemoral etc. So it is obvious that complainant and his wife got knowledge of deformation or of formation of osteophytes on 12.09.2018 and not before that. All the copies of investigation reports produced in this respect by OPs pertain to period from 12.09.2018 to 13.09.2018 and no investigation report prior thereto has been produced on record and as such the evidence produced by OPs itself suggest as if complainant or his wife got knowledge about necessity of replacement of knee joint on 12.09.2018 and not before that.
13. Counsel for OPs vehemently placed reliance on contents of discharge summary wherein in the column of diagnosis it is mentioned that wife of complainant, 60 years female was admitted because of primary complaints of B/L knee pain and difficulty in walking. However, some pain is relieved by resting, but aggravated by movement around the knee joint. Case of wife of complainant was diagnosed to be a case of osteoarthritis knee on initial examination. In the discharge summary it is mentioned that these complaints are long standing approximately 4/5 years, but got more severe since 2/3 months. Stress of counsel for OPs is on use of words of this long standing complaints for the last 4/5 years for arguing that these complaints actually were existing for the last 4/5 years, but mention of same not made in the proposal form. This stress of use of words approximately 4/5 years is miscalculated because when overall contents of diagnosis records taken into consideration, then this means that though knee pain is felt for the last 4/5 years, but severe pain started just 2/3 months prior to this diagnose on 12.09.2018. So virtually contents of this discharge summary establishes as if complainant or his wife came to know about severe pain in knee joint only 2/3 months prior to this treatment in September, 2018. A person who feels pain in knees, cannot be said to be having such pain of severe nature since beginning. Rather severity of pain noticed through discharge summary in this case just 2/3 months prior to 12.09.2018 and as such complainant or his wife got knowledge about severity of pain in June or July, 2018 i.e. just 2/3 months prior to admission on 12.09.2018 in OP No.3 hospital. As necessity of replacement of knee joints always is there when there is severe pain and not when there is bearable pain or lesser pain and as such in view of severity of pain felt by wife of complainant just 2/3 months prior to 12.09.2018 as disclosed by discharge summary referred above, it is obvious that complainant or his wife came to know about necessity of replacement of knee joints either in September, 2018 or just 2/3 months prior thereto and not before that. If that be the position, then present case cannot be termed as a case of seeking of extension of coverage from Rs.2.00 lakhs to Rs.5.00 lakhs in pre planed manner, so as to put burden on the insurer of amount of incurred expenses. Submission of counsel for OPs in this respect certainly has no force.
14. It is the case of OPs themselves that earlier approval was granted for amount of Rs.2,90,250/-, but same was inadvertently granted and that is why withdrawal of same took place. Before such withdrawal intimation of reduction must have been given to complainant, but no such intimation in writing or in oral alleged or proved to be given and as such reduction of approved amount was in violation of principles of natural justice. Rather this reduction took place at the time when wife of complainant was about to be discharged from hospital due to which complainant had to pay Rs.1,76,332/- from his pocket and as such it caused mental agony and harassment as well as humiliation to complainant. Even if treatment got by complainant for his wife, despite that complaint at the instance of complainant is maintainable because premium of policy paid by complainant for self and his wife. Beneficiaries as such were complainant and his wife and as such at the instance of complainant, this complaint is maintainable because he is co-consumer alongwith his wife. As policies were got issued since from 2014-15 and as such the treatment got after more than 2 years of inception of policy. Being so, benefit from Clause 4.3 of terms and conditions of policy cannot be gained by OPs. However, entitlement of complainant for reimbursement is to the extent of Rs.1.50 lakhs because of 50% capping, more so when amount of Rs.1.00 lakh has already been received by complainant. As insured amount is payable by OP No.4 and as such complaint deserves to be allowed against OP No.4 insurer and not against the TPA, who is just to process the insurance claim on asking of the insurer. Findings given by TPA are not binding on the insurer. Moreover, no deficiency in service on part of OP No.3 hospital is there and as such complaint against OP No.1 to 3 merits dismissal and is hereby dismissed.
15.. As a sequel of above discussion, complaint allowed against Insurance Company i.e. OP No.4 only in terms that it will pay Rs.2,50,000/- in all including already sanctioned and paid amount of Rs.1.00 lakh within 40 days from the date of receipt of certified copy of order. In case this balance amount of Rs.1,50,000/- not paid by the above stipulated period, then the complainant will be entitled to interest @ 8% per annum from today onward on the above referred balance amount of Rs.1,50,000/-. Compensation for mental agony and harassment of Rs.15,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against OP No.4 only. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Complaint against OP No.1 to 3, however, is dismissed. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
October 15, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
