Punjab

Faridkot

CC/16/222

Balbir singh - Complainant(s)

Versus

India Health Care Services - Opp.Party(s)

Jaswant Singh

30 Jan 2017

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      222

Date of Institution:  8.08.2016

Date of Decision :   30.01.2017

 

Balbir Singh aged about 66 years s/o Sh Chand Singh r/o Village Arayan Wala Kalan, Tehsil and District Faridkot.  

...Complainant

Versus

1. India Health Care Services (Pvt Ltd), Max Pro Info Park, D-38, 1^stFloor, Phase-I, Industrial Area, Mohali (Punjab), through its Managing Director.

2. Bhai Ghanaya Trust Chandigarh.

3. ICICI Lombard, F-701 A Lado Sarai, Behind Golf Course, New Delhi-110030 through its MD.

4. Orthonova Joint and Trauma Hospital Pvt Ltd. Nakodar Road, Near Nari Niketan, Jallandhar City, District Jallandhar through its MD.

5. The Araiyanwala Kalan Multi purpose Cooperative Society, Village Araiyanwala Kalan, through its Secretary.

.....OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh P Singla, Member

.

Present:  Sh  Jaswant Singh, Ld Counsel for complainant,

              Sh D S Dhaliwal, Ld Counsel for OP-2 and 5,

    Sh Neeraj Maheshwary, Ld Counsel for OP-3,

    Sh S K Bhatia, Ld Counsel for OP-4,

              OP-1 Exparte.

 

(Ajit Aggarwal, President)

                     Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to them to make payment of insurance claim of Rs.2,90,000/-and for further directing OPs to pay Rs.1,00,000/- as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.15,000/-.

2            Briefly stated, the case of the complainant is that complainant got insured himself with OP-1 and 3 through OP-5 vide his Card No.MD15-BGSSS-00094167-S for medical treatment and as per terms and conditions of the policy, complainant was entitled to get free medical treatment. It is submitted that in January, 2016 complainant was having acute pain in his knees and after diagnoses doctor advised him to transplant his both knees. Complainant got himself admitted in the hospital of OP-4, which is recognised under the scheme of OPs on 6.02.2016 and after successful transplantation of his both knees, complainant was discharged from said hospital on 13.02.2016. Further submitted that complainant had to pay Rs.2,90,000/-to hospital authorities under compelling circumstances as expenses for his knee transplantation. Complainant immediately reported the matter to OP-1, 3 and 5, who asked him to submit all the original bills pertaining to treatment with them. Complainant did the same, but till today, they have not made a single penny on account of expenses incurred by him on his treatment. At the time of selling the said policy, Ops assured him of free medical treatment without any delay, but all their promises proved to be false. Complainant made several requests to OPs to make payment of his insurance claim, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of Ops and it has caused harassment and mental agony to him for which he has prayed for directions to OPs to pay Rs.1,00,000/-as compensation alongwith cost of litigation besides the  medical insurance claim. Hence, the present complaint.

3                   The counsel for complainant was heard and vide order dated 12.08.2016, complaint was admitted and notice was ordered to be issued to theOPs.

4                OP-2 filed written statement taking preliminary objections that this Forum has no territorial jurisdiction to hear and try the present complaint. It is asserted that there is no deficiency in service on the part of OPs. Complainant purchased the policy in dispute after fully understanding its terms and conditions and no cause of action arises in favour of complainant. Complainant has not come to the Forum with clean hands and he has no locus standi to file the present complaint. However, on merits, OP-2 has denied all the allegations of complainant and reiterated that there is no deficiency on the part of OP-2. It is asserted that OP-2 is a registered Trust and it is meant for providing health care services to members and employees of Cooperative Societies and Cooperative Department. During the period from 1.01.2016 to 31.12.2016,  ICICI Lombard/OP-3 was appointed as insurer, which appointed OP-1 MD Health Care Services Pvt Ltd as Third Party Administrator and as per provisions of Bhai Ghanhiya Sehat Sewa Scheme, the Third Party Administrator is responsible for issuing Identity Card to beneficiaries, for inspection of hospitals and thereafter recommend them to be taken on panel of hospitals, to grant authorizations; to settle claims of hospitals and beneficiaries and to make cashless services to them on receipt of money from insurer. It is further submitted that answering OP is neither the service provider nor it is the claim settling authority under the scheme and therefore, complaint is not maintainable against Op-2. It is further submitted that during the period from 1.01.2016 to 31.12.2016, ICICI Lombard GIC ltd and MD India Health Care Services i.e OP-3 and OP-1 respectively were the service providers and if they have failed to provide services, they are responsible for that and OP-2 has no role to play in it. Therefore, he is not entitled to seek relief from OP-2. All the other allegations have been refuted with prayer to dismiss the complaint with costs.

5                 OP-3 filed reply taking preliminary objections that complaint in the present form is not maintainable and is liable to be dismissed and it is a false, frivolous and wrong complaint, filed with malafide intention and is not sustainable in the eyes of law. It involves complex questions of law requiring voluminous evidence, which is not possible in summary procedure. Moreover, complainant has concealed the material facts from this Forum as well as from OPs and thus, he is not entitled to any relief. He has conealed that maximum insurance coverage under the scheme is Rs.1,50,000/-and there are further sub limits for different diseases and maximum liability in Joint Replacement is Rs one lac, which has already been sanctioned and paid into the account of complainant on 6.09.2016 and therefore, now complainant has no reason seek more relief. On merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of answering OP.

6                 OP-4 also filed reply wherein took preliminary objections that OP-4 is private hospital expertise in Joint care, replacement and such like trauma situations and denied all the allegations of complainant being wrong and incorrect and asserted that from the date of admission on 6.02.2016 till discharge of complainant on 10.02.2016, complainant had no complaint with OP-4 and its staff. It is averred that complainant never informed answering OP that he wanted to obtain cashless treatment under Bhai Ghaniya Sehat Sewa Scheme and he was admitted as paid patient. He has not come to the Forum with clean hands and has wrongly impleaded answering OP as party to complaint. Complaint was fully attended, treated and cured and he never informed them that he was insured under said scheme. Complainant was admitted as paid patient and when he was informed about expenses of treatment, he agreed and paid the same to answering OP. On merits, it is averred that complainant paid Rs.2,90,000/-for his successful transplantation of both the knees on 13.02.2016 and  prior to treatment, complainant was informed about this fact. There is no deficiency in service on the part of OP-4 as complainant has no complaint regarding treatment given by answering OP as his knee transplantation operation of both the knees was successful and he is fully satisfied with the treatment provided by them. It is further averred that complainant has wrongly impleaded them as OP and prayed for  dismissal of complaint with costs.

7              OP-5 filed reply taking preliminary objections that complaint against them is not maintainable as complainant is not their consumer. On merits, it is asserted that only duty of OP-5 is to collect token money from members and to deposit the same alongwith relevant documents to OP-2. There is no negligence or carelessness on the part of OP-5 and it has done its duty well.  Moreover, complainant never reported the matter regarding his treatment to answering OP nor submitted any bill with them.  It is further averred that answering Op never assured complainant of any cashless treatment or medical services to complainant. Their only duty is to fill the forms, collect token money and deposit the same with OP-2 and it has performed its duty well. All the other allegations have been denied being wrong and incorrect and it is reiterated that there is no deficiency in service on the part of OP-5.

8             Notice issued to OP-1 on 12.08.2016 through registered cover did not receive back undelivered. Acknowledgment might have been lost in transit and even after expiry of statutory period, OP-1 did not appear in the Forum either in person or through Counsel to pursue the case and therefore, vide order dt 18.10.2016, OP-1 was proceeded against exparte.

9               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-4 and then, closed his evidence.

10               In order to rebut the evidence of the complainant, OP-2  and 5 tendered in evidence, affidavit of Mrs Gumeet Tej as Ex OP-2,5/1 and documents Ex OP-2,5/2 to 3 and then, closed the evidence. Ld Counsel for OP-3 tendered in evidence affidavit of Amandeep Singh as Ex OP-3/1, documents Ex OP-3/2 to 5and then, closed the same on behalf of OP-3. OP-4 tendered in evidence affidavit of Dr Harpreet Singh as Ex OP-4/1 and also closed the evidence.

11                   We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the record file.

12                 Ld Counsel for complainant vehementally argued that complainant got insured himself with OP-1 and 3 through OP-5 vide his Card No.MD15-BGSSS-00094167-S for medical treatment and as per terms and conditions of the policy, complainant was entitled to get free medical treatment. It is submitted that in January, 2016 complainant was having acute pain in his knees and after diagnoses, he advised knee transplantation. Complainant got himself admitted in the hospital of OP-4, which is recognised under the scheme of OPs on 6.02.2016 and after successful transplantation of his both knees, he got discharged from said hospital on 13.02.2016. Further submitted that complainant had to pay Rs.2,90,000/-to hospital authorities under compelling circumstances as expenses for his knee transplantation. Complainant immediately reported the matter to OP-1, 3 and 5, who asked him to submit all the original bills pertaining to treatment with them. Complainant did the same, but till today, they have not made a single penny on account of expenses incurred by him on his treatment. All the assurances and promises made by OPs for cashless treatment proved to be false. Complainant made several requests to OPs to make payment of his insurance claim, but all in vain. All this amounts to deficiency in service and has caused harassment to him for which he has prayed for he has prayed for accepting the present claim alongwith compensation and litigation expenses. 

13               To controvert the allegations of complainant, ld counsel for OP-2 argued that this Forum has no territorial jurisdiction to hear and try the present complaint and there is no deficiency in service on the part of OPs. Complainant purchased the policy in dispute after fully understanding its terms and conditions and no cause of action arises in favour of complainant. Complainant has not come to the Forum with clean hands and he has no locus standi to file the present complaint. OP-2 has denied all the allegations of complainant and reiterated that there is no deficiency on the part of OP-2. It is asserted that OP-2 is a registered Trust and it is meant for providing health care services to members and employees of Cooperative Societies and Cooperative Department. During the period from 1.01.2016 to 31.12.2016,  ICICI Lombard/OP-3 was appointed as insurer, which appointed OP-1 MD Health Care Services Pvt Ltd as Third Party Administrator and as per provisions of Bhai Ghanhiya Sehat Sewa Scheme, the Third Party Administrator is responsible for issuing Identity Card to beneficiaries, for inspection of hospitals and thereafter recommend them to be taken on panel of hospitals, to grant authorizations; to settle claims of hospitals and beneficiaries and to make cashless services to them on receipt of money from insurer. It is further submitted that answering OP is neither the service provider nor it is the claim settling authority under the scheme and therefore, complaint is not maintainable against Op-2. It is further submitted that during the period from 1.01.2016 to 31.12.2016, ICICI Lombard GIC ltd and MD India Health Care Services i.e OP-3 and OP-1 respectively were the service providers and if they have failed to provide services, they are responsible for that and OP-2 has no role to play in it. Therefore, he is not entitled to seek relief from OP-2. Prayer to dismiss the complaint is made.

14                      Ld counsel for OP-3 also argued that complaint in the present form is not maintainable and is liable to be dismissed and it is a false, frivolous and wrong complaint, filed with malafide intention and is not sustainable in the eyes of law. It involves complex questions of law requiring voluminous evidence, which is not possible in summary procedure. Moreover, complainant has concealed the material facts from this Forum that maximum insurance coverage under the scheme is Rs.1,50,000/-and there are further sub limits for different diseases and maximum liability in Joint Replacement is Rs one lac, which has already been sanctioned and paid into the account of complainant on 6.09.2016 and therefore, now complainant has no reason seek more relief. On merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of answering OP.

15                   OP-4 argued that it is a private hospital expertise in Joint care, replacement and such like trauma situations but denied all the allegations of complainant being wrong and incorrect and asserted that from the date of admission on 6.02.2016 till discharge of complainant on 10.02.2016, complainant had no complaint with OP-4 and its staff. It is averred that complainant never informed answering OP that he wanted to obtain cashless treatment under Bhai Ghaniya Sehat Sewa Scheme and he was admitted as paid patient. He has not come to the Forum with clean hands and has wrongly impleaded answering OP as party to complaint. Complaint was fully attended, treated and cured and he never informed them that he was insured under said scheme. Complainant was admitted as paid patient and when he was informed about expenses of treatment, he agreed and paid the same to answering OP. Complainant paid Rs.2,90,000/-for his successful transplantation of both the knees on 13.02.2016 and  prior to treatment, complainant was informed about this fact. There is no deficiency in service on their part as complainant has no complaint regarding treatment given by them as his knee transplantation operation of both the knees was successful and he is fully satisfied with their treatment. Complainant has wrongly impleaded them as OP and prayed for  dismissal of complaint with costs.

16                 Ld counsel for OP-5 argued that complaint against them is not maintainable as complainant is not their consumer. It is argued that only duty of OP-5 is to collect token money from members and to deposit the same alongwith relevant documents to OP-2. There is no negligence or carelessness on the part of OP-5 and it has done its duty well. Moreover, complainant never reported the matter regarding his treatment to answering OP nor submitted any bill with them.  It is further averred that answering Op never assured complainant of any cashless treatment or medical services to complainant. Their only duty is to fill the forms, collect token money and deposit the same with OP-2 and it has performed its duty well. All the other allegations have been denied being wrong and incorrect and it is reiterated that there is no deficiency in service on the part of OP-5.

17                                     From the careful scrutiny and perusal of documents and evidence placed on record by respective parties and going through their arguments, it is observed that case of complainant is that he complainant was insured with Ops and he was entitled for cashless treatment and during the validity of insurance, complainant got transplantation of his both knees, but despite being insured with OPs, he had to pay Rs.2,90,000/-on account of treatment of his knee replacement. After the transplantation of his knees, he submitted all the claim forms with OPs alongwith relevant documents pertaining to his treatment and bills, but  till today, Ops have not settled the claim of complainant on account treatment of his knees. In reply, OPs admitted that complainant was insured with OP-1 and 3 for free medical treatment through OP-2 and 5 under Bhai Ghanhiya Sehat Sewa Scheme and they further admitted that complainant took treatment for transplantation of his knees from OP-4 and lodged claim for reimbursement of expenses borne by him with OP-1 and 3. OP-3 argued that as per scheme, maximum insurance cover was Rs.1,50,000/- and as per terms and conditions of Insurance Policy, the maximum liability in case of joint replacement is Rs. 01 lac only and OP-3 have already paid the amount of Rs.01 lac to complainant in his bank account on 6.09.2016 and now, the complainant can not claim anything more than this amount.

18                        On it, the ld counsel for complainant argued that complainant is entitled for reimbursement of entire amount spent by him for his treatment and not only Rs. one lac, which is alleged by OPs as maximum limit as per terms and conditions of the Policy. At the time of issuance of Policy, the OPs never explained any terms and conditions to complainant. Even they never supplied them copy of insurance policy. They only issued Identity Card regarding insurance policy. Except it, they did not supply any other document. Now, on the behest of such terms and conditions, they cannot escape from their liability to pay the amount which is actually spent by complainant on his treatment.

19                               Ld Counsel for complainant  has 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 has 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 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.

20                                         From foregoing discussion, it is observed that OP-1 and 3 cannot escape their liability to pay the actual expenses borne by complainant on his treatment. However, under the policy in question maximum insured value is Rs.1,50,000/- and complainant cannot claim anything more that maximum of insured value, out of which OP-3 have already paid Rs one lac to complainant. As such, present complaint is hereby allowed. OP-1 and 3 are directed to pay Rs.50,000/-more to complainant alongwith interest at the rate of 9% per anum from the 6.09.2016, when they paid Rs.01 lac to complainant till final realization. OP-1 and OP-3 are further directed to pay Rs.5000/-to complainant as compensation for harassment, mental agony and litigation expenses. Complaint against OP-2, 4 and Op-5 stands dismissed. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of costs as per rules. File be consigned to record room.

Announced in Open Forum

Dated : 30.01.2017                 

                                      Member                         President                                           (P Singla)                           (Ajit Aggarwal)