BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.465 of 2015
Date of institution: 15.09.2015
Date of Decision: 21.07.2016
Surinder Kumar son of Sadhu Ram, resident of Royal Hotel Street, Sante Majra Colony, Kharar, District SAS Nagar (Mohali).
……..Complainant
Versus
1. Indian Overseas Bank, through Branch Manager, Kharar, District SAS Nagar (Mohali).
2. Universal Sompo General Insurance Company Ltd., Registered and Corporate Office: Unit 401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (East), Mumbai 400059.
3. E-Meditek (TPA) Services Limited, Corporate Office: Plot No.577, Udyog Vihar, Phase-V, Gurgaon, Haryana 122016 through authorised signatory.
4. Kapoor’s Kidney & Urostone Centre Pvt. Ltd. Site No.2, Near Gurudwara, Opposite Traffic Light, Sector 45-46, Sector 46-D, Chandigarh through authorised signatory.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Pawan Kumar Sharma, counsel alongwith the complainant.
Shri Aman Behl, counsel for OP No.1.
Shri Sahil Abhi, counsel for OP No.2.
OP No.3 ex-parte.
Shri G.D. Goyal, counsel for OP No.4.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) to pay him the amount spent on treatment alongwith interest @ 18% from the date of filing of complaint till realisation.
(b) pay him compensation to the tune of Rs.1,00,000/- towards harassment and mental agony.
(c) pay him Rs.25,000/- as litigation expenses.
The case of the complainant is that he took IOB Health Care Plus cashless Policy from OP No.1 and 2 which was valid from 18.02.2013 to 17.02.2014. The sum assured under the policy was Rs.1,00,000/- for health floating and Rs.1,00,000/- for Personal Accident Floater. The policy was got renewed by the complainant from 19.02.2014 to 18.02.2013 and 23.02.2015 to 22.02.2016. The complainant was paying the premium regularly. As per the complainant at the time of issuance of the policy/policies, the OP No.2, the insurance company gave him full assurance of cashless hospitalization facility in case of illness to the tune sum assured i.e. Rs.1,00,000/- as the type cover is health. Health Floater sum assured Rs.1,00,000/- and Personal Accident Floater sum assured Rs.1,00,000/- and in this regard, the OP No.2 issued the detailed policy terms by way of policy card tilted as IOB Health Care Policy Ex.C-4. As per the complainant, the proposer form for purchase of the policy was filled by the OP No.1 and 2 in their own hand writings and no medical examination of the complainant was got conducted by them before accepting his proposer form. Further, the complainant pleaded that in the month of June-July, 2015 he has some health problems and got himself checked up in PGI Chandigarh as well as with OP No.4. As per the diagnosis by OP No.4, on 09.07.2015 the complainant was diagnosed and after the diagnose OP No.4 decided to operate upon the complainant at two stages one on 14.07.2015 and second on 16.07.2015. The complainant informed OP No.4 about his entitlement of cashless medical facility under the policy issued by OP No.2 at the instance of OP No.1. The treating doctor OP No.4 informed OP No.3 i.e. the TPA of OP No.2 vide letter dated 09.07.2015 and OP No.3 vide letter of the same date i.e. 09.07.2015 asked some more information and documents from OP No.4 and OP No.4 vide letter dated 11.07.2015 sent the requisite documents. The documents demanded by OP No.3 are as follows:
(1) Clear and legible photo ID proof of complainant.
(2) Consultation papers of first doctor visit with All Past Treatment papers prior to planned hospitalization.
(3) Revised estimate.
(4) Past medical history of patient.
As per OP No.4 the requisite documents have been provided vide letter dated 11.07.2015 Ex.OP-2/6. The documents and details thus having been provided well in advance by OP No.4 to OP No.3 prior to undertaking the scheduled surgery on 14.07.2015 were well within the reach of OP No.3 and OP No.3 having sufficient time to process and provide pre-authorization approval prior to surgery. However, to the shock and surprise of the complainant, when the surgery was conducted by OP No.4 on 14.07.2015 and the complainant was taken out from the operation theatre and was still under the influence of anesthesia, the complainant received a SMS from the OP No.3 that his cashless claim request has not been sanctioned by OP No.3. Subsequently OP No.4 received the written communication dated 14.07.2015 from OP No.3 regarding denial of cashless facility towards treatment of complainant on the below marked reasons:
“(1) General Conditions (2) Mis-description (This policy shall be void and premium paid shall be forfeited by us in the event of misrepresentation, mis-description or non disclosure of any material facts by you. Non disclosure shall include non intimation of any circumstances which may affect the insurance cover granted).
Remarks: a case of 49 years male Surinder Kumar c/op Pain in Left Flank since 10 days diagnosis left Staghorn Calculus Planed for left P C N L in multiple Stage + D J Stenting on 14.07.2015 (But as per received documents patient is known case of D M since 4-5 years and these past medical history facts were not disclosed in proposer form, hence claim denied as per General Conditions (2) Mis-description.”
Vide aforesaid letter OP No.4 was authorised by OP No.3 to collect the expenses from the patient and the patient i.e. the complainant may submit the hospitalization papers for reimbursement as per policy terms and conditions. The complainant has paid a total sum of Rs.85,000/- to OP No.4 vide receipt dated 18.07.2015. The complainant further pleaded that OP No.3 deliberately kept pending the sanctioning of cashless claim till 14.07.2015 and deliberately and wrongfully denied the approval of cashless claim against the terms of policy. Therefore, the complainant has alleged unfair trade practice and deficiency in service on the part of the OPs.
2. Upon notice the OPs appeared and filed their respective written statements. OP No.1 in the written statement has denied unfair trade practice on its part. Further OP No.1 admitted that the complainant took a policy and that the complainant had paid premium for the tenure of the policy and has further reiterated the grounds for denial of the preauthorization approval of cashless facility by OP No.3.
3. OP No.2 the insurance company in its reply has denied any act of deficiency in service or unfair trade practice on its part and reiterated that the policy being in currency has been issued as per IRDA guidelines and further the Third Party Administrator i.e. OP No.3 appointed by IRDA for processing and settlement of medi claim on behalf of the different insurances companies in accordance with the terms and conditions of the policy. The IRDA appointed Third Party Administrator i.e. OP No.3 has rightly declined the pre-authorization cashless facility to the complainant on the ground of non disclosure of pre existing disease of Diabetic Mellitus (D.M) since 4-5 years as per past medical history provided by the treating doctor and the PGI records. The said fact of existence of D.M. has not been disclosed by the complainant in the proposer form submitted by him at the time of obtaining the insurance policy from OP No.2 and as such the cashless authorization is denied as per general condition No.2 mis-description vide letter dated 14.07.2015 issued by OP No.3 to OP No.4. Further as per OP No.2 the complainant after discharge from hospital, till date has not submitted the hospitalization papers for remittance of medical expenses as per the policy terms and conditions and as such no claim has been reported by the complainant after discharge from the hospital. Therefore, no cause of action has accrued to the complainant to file the present complaint against the OP No.2. In reply to Para No.1 on merits, OP No.2 has stated that insurance policy is a contract in itself and the parties are bound by its terms and conditions. It is one of general condition No.2 of the policy under the head mis-description that “This policy shall be void and premium paid shall be forfeited by us in the event of misrepresentation, mis-description or non disclosure of any material facts by you. Non disclosure shall include non intimation of any circumstances which may affect the insurance cover granted.” Further as per OP No.2, in their written statement Para No.13 has admitted that the cashless policies were renewed on year to year basis since 2013 and was valid uptill 2016 and the contract of insurance being based on utmost good faith and on the basis of proposal form submitted by the complainant under his signatures, there is no provision of calling of fitness certificate.
4. OP No.3 has been proceeded against ex-parte vide order dated 28.12.2015 as none appeared on its behalf despite proper and effective notice having been delivered to OP No.3 on 26.11.2015.
5. So far OP No.4 is concerned, in its reply dated 26.11.2015, it has denied any deficiency in service on its part and in reply to most of the paras to the complaint has either took a stand that it does not concern the answering OP or it is a matter of record. However, in response to para No.11 of the complaint, OP No.4 took a categoric stand that the complainant was very much aware about the rejection of the claim and the claimant was well informed about the rejection of the claim. Therefore, there is no deficiency in service on its part.
6. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-22.
7. Evidence of OP No.1 consists of affidavit of Kamal Kishore its Manager Ex.OP-1/1.
8. Evidence of OP No.2 consists of affidavit of Piyush Shankar, its Manager Ex.OP-2/1 and affidavit of Dr. Dheeraj Singh Ex.OP-2/2 and copies of documents Ex.OP-2/3 to Ex.OP-2/8. No document was tendered in evidence by OP No.4
9. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
10. The purchase of insurance policy, its renewal and currency/validity upto 22.02.2016 is not disputed. Further the factum of complainant having fallen ill in the month of June-July, 2015 and subsequent investigations by the PGI and OP No.4 and further treatment by OP No.4 as outdoor and indoor patient upto 18.07.2015 is not disputed. The limited issue in the complaint raised by the complainant, that though he was entitled to cashless medical facility under the policy, the same has been wrongly denied by the OP No.3 and the denial of cashless facility towards the treatment of complainant has been conveyed by OP No.3 to OP No.4 post surgery conducted by OP No.4 on 14.07.2015. The act of OP No.3 being the TPA Administrator of OP No. 1 and 2 the insurance company and further the act of OP No.4 for conducting the operation without having pre-authorization approval from OP No.3 is an act of deficiency in service and unfair trade practice on the part of all the OPs.
11. In order to resolve the dispute raised in the complaint, the following issues are required to be redressed:
- Whether there is non disclosure of material fact about the existence of pre-existing disease by the complainant at the time of purchase of policy?
(b) Whether the non disclosure of pre-existing disease has any bearing on the treatment undertaken by the complainant from OP No.4 during the currency of the policy?
(c) Whether the OPs deliberately took longer time in processing the preauthorization claim of the complainant, knowing fully well that the treating doctor has decided the date of operation as 14.07.2015, particularly when all the necessary documents and medical record and history of the complainant was available with OP No.3 on 11.07.2015?
(d) Whether OP No.4 has, without any preauthorization or cashless facility in its hands from OP No.3, hastily conducted the surgery on 14.07.2015
(e) Whether the complainant is entitled to cashless medical facility under the policy in question?
12. In order to answer the first question, we have gone through the contents of Ex.OP-2/3. As per the complainant, the proposer form was filled up by the agent of the OP No.2 whereas OP No.2 has denied the same and took a categoric stand that the proposer form has been filled up by the complainant himself and under his own signatures. Without going into the controversy, as to who has filled up the form, the contents of the proposer form are vital to appreciate the medical history mentioned in the proposer form. The medical history under column ‘d’ of the proposer form has asked four kind of details but nowhere has specifically asked for the details of Diabetic Mellitus whereas there is a specific column for high blood pressure, heart diseases etc. etc. Under these columns the proposer has ticked mark against the column ‘no’ whereas under Sr.No.1 ‘are you suffering from any disease or any infirmity’, the tick mark is in between yes and no. So from the perusal of medical history so mentioned in proposer form, it is abundant clear neither any specific detail about Diabetic Mellitus was asked for nor provided. Believing the information so provided in the proposer form and without conducting any medical examination, the OPs have been issuing the policy from year to year basis and renewing the same. Therefore, it does not lie in the hands of OPs to say that there is non disclosure of material fact about the existence of pre existence disease and such non disclosure as per the OPs amounts to mis-description or misrepresentation. An argument in support of contention by the OPs that the complainant was known case of Diabetic Mellitus since last 4-5 years and was under treatment is not supported by any documentary evidence as the perusal of PGI treatment record dated 24.06.2015 OPD card Ex.C-13 shows the patient suffering from DM positive and for that he is on OHA but since how, is not revealed from whereas the medical history so provided by OP No.4 to OP No.3 vide Ex.OP-2/7 reveals that the patient is suffering from Diabetic Mellitus for the last 4-5 years. Even if that too be believed to be true that the complainant was suffering from 4-5 years, there is nothing on record to show that he was under treatment for this disease for the last 4-5 years. Therefore, merely believing the treatment history so recorded by OP No.4 without any correspondingly treatment undertaken for the disease so mentioned in the medical history , does not in any manner amounts to suppression of material facts of the pre existing disease of Diabetic Mellitus. Therefore, the answer to the first question is in favour of the complainant.
13. To answer the next question as mentioned (b) above, it will be appropriate to refer to the medical record and history and the proposed line of treatment after diagnosis, so provided by OP No.4 to OP No.3 for taking pre authorization approval vide his letter dated 11.07.2015 Ex.OP-2/7. Even if it is believed that the patient was suffering from Diabetic Mellitus for the last 4-5 years, still in the esteem and estimation of the treating doctor, it was not fatal for the treatment of calculus in the left kidney which the OP No.4 proposed to treat by surgery, left stent calculus. Therefore, the pre existing disease has no adverse effect to the present proposed line of treatment by OP No.4. The answer to this question against goes in favour of the complainant.
14. In order to answer question (c) above, it will be appropriate to go through the documents sent by OP No.4 to OP No.3 vide letter dated 09.07.2015 and the query raised by OP No.3 to OP No.4 vide e-mail dated 09.07.2015 Ex.OP-2/5. The documents pending and query raised in this mail has been duly replied to by OP No.4 on 11.07.2015 Ex.OP-2/6. OP No.3 has acknowledged having received the documents on 11.07.2015. So the documents were well within the reach of OP No.3 prior to the date of operation on 14.07.2015. OP No.3 took undue time in processing the documents and declining the pre authorization approval and conveyed the denial of cashless facility to the OP No.4 after the complainant has undergone operation. The delay in processing and conveying the denial of cashless facility on the part of OP No.3 is an act of unfair trade practice and deficiency in service. Therefore, the answer this question again goes in favour of the complainant and against the OPs No.1 to 3.
15. In answer to question (d) above, it was obligatory for the treating doctor to wait for the approval/denial of pre-authorization of cashless facility from OP No.3 knowing fully well that the case of preauthorization facility was under process with OP No.3. OP No.4 being empanelled hospital of OP No.2 and 3 has over stepped its jurisdiction, as OP No.4, without waiting for such approval/denial, of its own volition has conducted the operation and burdened the complainant with the medical treatment expenses of Rs.85,000/- which OP No.4 has received after the receipt of denial information from OP No.3. The act of OP No.4, therefore, without waiting for approval/denial and subsequently treating the complainant at his own expenses and charging of amount of Rs.85,000/- vide receipt 18.07.2015 Ex.C-18 is an act of deficiency in service and unfair trade practice.
16. In answer to question (e) above, the policy in question being valid and in currency, there being no material non disclosure of pre existing disease having been proved by the OPs, as the conjoint reading of proposer form Ex.OP-2/2, PGI treatment record Ex.C-3 do not reveal the diabetic mellitus as pre existing disease having any adverse effect on the treatment in question undertaken by the complainant. Therefore the complainant is entitled to cashless medical facility. The denial of the same by OP No.1 to 3 is an act of unfair trade practice and deficiency in service.
17. While arguing the matter, the counsel for the complainant has brought to our notice, provisions of Section 45 of the Insurance Act, 1938, which reads as below:
“Policy not to be called in question on ground of mis-statement after two years.
While advancing his arguments on the strength of the said provisions of law, the counsel for the complainant stated that the policy in question was initially purchased in the year 2013 and thereafter has been renewed by OP No.1 and 2 on year to year basis after taking the premiums for each year and the receipt of premium is not denied by the OP No.1 and 2. Therefore, the policy being in continuation from 2013 onwards till 2016 cannot be called in question on ground of misstatement of facts and cashless facility cannot be denied to him and denial of the same on this ground is contrary to provisions of Insurance Act. The counsel for the OPs did not put forth any contravening provisions to contradict the stand of the complainant.
18. Since the complainant has already made the payment of Rs.85,000/- for the treatment to OP No.4 vide receipt dated 18.07.2015, therefore, now the only limited grace left with the OPs to reimburse the said amount to the complainant alongwith interest besides paying adequate compensation to him for mental agony, harassment and financial loss. In the light of our above discussions and on the basis of facts and evidence on record, the complaint deserves to be allowed and the complainant deserves adequate, fair and just compensation.
19. Hence, the complaint is allowed with the following directions to the OPs:
- OP No.1 to 3 are jointly and severally directed to reimburse Rs.85,000/- (Rs. Eighty five thousand only) alongwith interest @ 9% per annum from 18.07.2015 till realization subject to submission of the claim documents in proper form and prospectus by the complainant to the OPs within a period of 15 days from the receipt of certified copy of order.
- OP No.1 to 3 are jointly and severally directed to pay a lump sum compensation of Rs.40,000/- (Rs. Forty thousand only) for mental agony and harassment and costs of litigation.
(c) OP No.4 to pay independently a sum of Rs.25,000/- (Rs. Twenty five thousand only) to the complainant for causing mental harassment and agony on account of showing undue haste in treating the patient without his consent for bearing the medical expenses awaiting pre-authorization for cashless facility.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
July 21, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
