Haryana

Ambala

CC/441/2016

Siya Ram - Complainant(s)

Versus

L.I.C. of India - Opp.Party(s)

Ashutosh Aggarwal

28 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 441 of 2016

                                                          Date of Institution         : 13.12.2016

                                                          Date of decision   : 28.05.2018.

 

Siya Ram son of late Sh.Gurnam Singh age 54 years r/o H.No.249, VPO Holi Tehsil Barara District Ambala.

……. Complainant.

 

1. LIC of India, Branch Office- Jeevan Jyoti Building, Jawahar Lal Nehru Marg, Ambala Cantt. through its Chief Manager.
2. LIC of India Divisional Office, 489 Model Town, Karnal through its Senior Divisional Manager.
3. Insurance Regulatory and Development Authority, Delhi Office- Gate No.3, Jeevan Tara Building First Floor, Sansad Marg, New Delhi-110001, through its Chairman.

 ….…. Opposite Parties.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                   

                   MS. ANAMIKA GUPTA, MEMBER       

 

Present:       Sh. Ashutosh Aggarwal, counsel for complainant.

                   Sh. Dev Batra, counsel for OPs No.1 to 3.

                  

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had obtained a Health Plus policy bearing policy No.176195498 on 04.08.2008 from OP No.1 having sum assured of the amount of Rs.3,00,000/-. In the month of May, 2015 the complainant noticed blood in urine, therefore, he approached PGI, Chandigarh on 02.05.2016 where he was checked and reported as Malignant Growth Urinary Bladder, Advised Cytoscopy Biopsy and thereafter he was diagnosed as Carcinoma Urithelial –High Grade on 06.05.2016.  Since the complainant was suffering from Carcinoma Urithelial with High Grade but PGI Chandigarh could not provide an early date for his timely treatment so he approached Rajeev Gandhi Cancer Institute & Research Centre, New Delhi for timely and properly medication treatment on 13.05.2016. Several medical tests were performed by the expert doctors and ultimately he was got operated there and he spent more than Rs.75899/- besides other expenses and remained admitted there till 16.05.2015. The biopsy was conducted by taking sample on 14.05.2015 i.e. after operation TURBT by the Pathology Department and the report thereof is as under:

                   Microscopic examination & Opinion:

‘High Grade Urothelial Carcinoma with Focal Sarcomatoid Areas. Invasion into Lamina Propria Presnet No Lymphovasular Emboli Muscularis Propria Included is Free’

After his treatment the complainant had submitted bills to Op No.1 for his reimbursement but after processing the claim only amount of Rs.1950/- on dated 22.12.2015 was reimbursed and credited in the account of the complainant by way of NEFT without any details whereas the claim amount was more than Rs.80,000/-. The complainant got served legal notice to Op No.1 but in reply the Op No.1 has mentioned that Principal Assured got admitted from 13.05.2015 to 16.05.2015 in hospital for the treatment of CA Gall Bladder and underwent TURBT. As this policy falls under Plan, 901 NO OSB and DCPB is payable. As procedure performed for treatment is not listed in allowed MSB (Major Surgery Benefit) list, so only HCB allowed as per terms and conditions of the policy.   At the time of issuance of the policy, the OP No.1 had not informed the same to the complainant. The complainant requested the OPs to pay the claimed amount but to no effect.  The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C18.

2.                          OPs appeared and filed their separate replies. Op Nos.1 & 2 in their joint reply submitted that the complainant, principal insured under the policy No.176195498 took LIC Plan No.901 i.e. Health Plus Policy on 04.08.2008 with Yly premium of Rs.15000/- for MSB Rs.3 lac & HCB Rs.1500/- per day for himself as well as MSB Rs.2 lac & HCB Rs. 1,000/- per day for his wife and sons respectively. The policy in question is Unit Linked Health Insurance Plan and the present complaint is against the settled conditions & privileges under Health Plus Policy in question & in view of features of the Policy which under Head Major Surgical Benefit Limits specifies that:

i)  In the event of claim becoming eligible for payment under this benefit and regardless of the actual costs incurred, the corporation will pay the chosen Major Surgical Benefit Amount, calculated as a percentage of sum assured as specified against each of the eligible surgeries in Surgical Benefit Annexure.

ii)  The Major Surgical Benefits shall be paid as lump sum and is subject to providing proof of surgery to the satisfaction of the corporation.

iii)   ….. to xii.

As per Hospital Cash Benefit Limits For every Hospitalization, no benefit would be paid for the first 48 hours (2 days) of hospitalization, regardless whether the insured was admitted in a general or special ward or in an intensive care unit……..” .  As alleged by the complainant that he remained admitted in hospital from 13.05.2015 to 16.05.2015 for treatment of CA Urinary bladder and underwent TURBT. However, initially due to inadvertence of email by TPA the treatment was mentioned as some places as CA Gall Bladder, though infact treatment was of CA Urinary Bladder and underwent TURBT. As a matter of fact, records as well as settled terms & conditions of the policy in question the treatment/ procedure performed for the treatment is not listed in allowed MSB list, so only HCB as per rules was permissible. The date of admission was 13.05.2015 at 12.16 AM and date of discharge was 16.05.2015 at 3.05 PM i.e. 3 days & hence complainant was allowed HCB for one day as no benefit would be paid for the first 48 hours (two days) of hospitalization. Hence, only a sum of Rs.1950/- (Basic HCB/ IDB Rs.1500/- plus 5 % extra for 6 years Rs.450/-) for one day has been paid as per terms and conditions of the policy. No OSB and DCPB was payable. Irrespective of above nothing was payable in claim in hand.  All conditions and privileges referred to in the policy documents, definitions, HCB benefits limits, waiting period, exclusions, list of surgical benefits etc. Policy is not governed by medical definitions rather the same is governed by the agreement / contract arrived at between the parties i.e. terms and conditions of the policy.  Major surgery usually requires hospitalization of varying length (often a week). As a matter of fact, records as well as settled terms and conditions of the policy in question the treatment/ procedure performed for the treatment is not listed in allowed MSB list, so only HCB as per rules was permissible and nothing beyond that was payable.  There is no deficiency in service and unfair trade practice on the part of the insurance company. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                             OP No.3 in its reply has submitted that the complaint is between the complainant and Op Nos. 1 & 2 relating to settlement of claim for reimbursement of medical expenses under the policy. The Op No.3 plays a facilitative role in resolution of grievances as it discharges regulatory and supervisor functions. The OP No.3 lays down broad policy and does not adjudicate upon disputes between individual policy holder and the insurance company.  The complainant is not a consumer within the meaning of 2 (1) (d) of the Consumer Protection Act, 1985 and there is no deficiency in service within the meaning of CP Act because it cannot be said to be rendering any services for consideration.  Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R6.

4.                          We have heard counsel for the parties and carefully gone through the case file.

5.                After hearing both the parties this Forum has framed two points which are in controversy to decide the present complaint. Firstly, whether there was any agreement between the parties while issuing the policy document regarding covering or discovering the surgery under MSB and whether the surgery done to the complainant covered under such major surgery benefit limit. After going into the evidence adduced by the parties, it reveals that OP Nos.1 & 2 have issued the Annexure C-1 to the complainant on dated 22.11.2008 in which it is mentioned that Annexure C1 is a  welcome kit containing the policy bond  and conditions and privilege under the health plus policy. However, no such conditions are attached with Annexure C1. In the reply filed by OP Nos. 1 & 2 by way of preliminary objection No.1 it is pleaded that “it is matter of facts and record too that welcome kit being part of policy bond was provided alongwith the policy bond”. However, no date and month had been mentioned for delivery of the said kit containing the said terms and conditions to the complainant is pleaded in the reply. So it cannot be concluded that any such kit containing the alleged terms and conditions defining Major Surgical Benefit had been supplied to the complainant by Op Nos. 1 & 2.

6.              Now, question arises whether surgery done to the complainant falls under major surgery according to medical treatment certificate placed on the file and admitted by Op Nos. 1 & 2, it is clear that complainant remained admitted in Rajeev Gandhi Research Institute, Delhi, w.e.f. 13.05.2016 to 16.05.2016 and was operated for removal of tumor in bladder and underwent TURBT surgery  (Transurethral Resection of Bladder Tumor). From the evidence, led by the complainant it is clear that said surgery was performed with general anesthesia and institution had charged sum of Rs.8499.35/- on the account of Anesthesiologist Feeder and sum of Rs.6825/- on account of Anesthesiologist Gas Charges. It is also not disputed that the TURBT is a Surgical treatment for bladder tumors as per literature. “A TURBT is a procedure in which bladder tumors can be removed from the bladder wall. This is a procedure performed completely with a scope that is inserted through the urethra into the bladder. It is generally performed in the hospital setting as an outpatient with the patient anesthetized. During the procedure, a scope with a special cutting instrument is inserted through the natural channel into the bladder and then the tumor is removed. The resulting area of resection can then also be cauterized by specialized instruments.  A TURBT allows your urologist to both diagnose and potentially treat various bladder disorders. The most common indication for a TURBT is bladder cancer. 75 % of bladder cancers that are discovered are superficial in nature. In other words, most bladder cancers grow only on the surface of the bladder wall and not deep into the bladder wall. This allows a surgeon to remove the bladder tumor down to the level of the bladder wall without damaging the deeper layers of the bladder”.

7.                From the said definition of TURBT we can easily concluded that the surgery done to the complainant was major surgery which was performed with general anesthesia to avoid the risk of cancer as such type of tumor if not removed it may result cancer of bladder.

8.                The contention of OP Nos.1 & 2 to the effect that said surgery does not fall under major surgery is devoid merit. The judgments relied upon by OP Nos.1  & 2 are not applicable in the facts of the present case. As in those cases there was lack of minimum hours of admission in the hospital. Further the order passed by this Forum in complaint No.244 of 2013 titled as Ajay Aggarwal Versus LIC cannot be looked by this Forum as every case has its own distinguish facts as is decided on the basis of evidence led by the parties in that case. Further there is no factual position before this Forum what had happened with said order in appeal or order passed by this Forum result of appeal and revision. The facts of the said case are also distinguishable as in that case complainant has failed to prove minimum hours of utilization which was 52 hours in that case. The counsel for the Ops relied upon the judgments i.e. Jeet Kamal Vs. LIC in revision Petition No.2640/2016 decided on 13.07.2017(NC), Ekjot Singh Vs. E-Meditek Solution  Ltd & LIC in revision Petition No.4779/2012(NC), LIC Vs. Mukut Bihari Aggarwal in Ist Appeal  no.176/2010 decided on 24.5.2012 (SCDRC, Uttarakhund), LIC Vs. Madan Gopal in revision Petition No.167/2016 decided on 18.03.2016(NC), LIC Vs. Niwas Bansal, in revision Petition no.2333/2012 decided on 12.04.2013(NC) and Export Credit Guarantee Vs. M/s Garg Sons International decided on 17.01.2013(SC). The above said judgments are not applicable as discussed in  above.

9.                          In view of the above said factual position, this Forum concluded that OP Nos.1 & 2 have wrongly treated the case of the complainant HCB (Hospital Case Benefit) instead of major surgery benefit. Accordingly, this Forum has no hesitation to accept the present complaint with costs and direct the Op Nos.1 & 2 to release the amount Rs.80,000/- as claimed by the complainant alongwith interest 9 % per annum from the date of filing of complaint till its realization after deducting the amount paid if any alongwith the costs which is assessed Rs.10,000/-. Although, complainant has paid the amount Rs.75,889/- to the hospital on account of treatment and a sum of Rs. 11,166.68/- has been paid on account of medical bills but complainant has limited his claim Rs.80,000/-. So this Forum cannot grant excess amount than claimed.  Op Nos.1 & 2 are further burdened with compensation amount Rs.10,000/- on account of mental agony, caused to the complainant. The OP No.3 has no role to play in the matter in question, therefore, the complaint against OP No.3 stands dismissed. The compliance of the order be made within a period of 30 days. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on : 28.05.2018                       (D.N. ARORA)

                                                                         President

 

    

     (PUSHPENDER KUMAR)

                                                                          Member

 

 

     (ANAMIKA GUPTA)

                                                                           Member