Naveen Puri, President;

1        The complainant Gian Singh has filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called  as 'the Act') against the chairman M.D. India Health Care services Ltd. and another (Opposite parties) on the allegations of deficiency in service and negligence in service on the part of the opposite parties No. 1, 2 with further prayer to direct the opposite parties No. 1 and 2 to reimburse an amount of Rs. 1,80,000/- i.e. the amount paid by the complainant from his own pocket    besides this Rs. 10,000/- as compensation and Rs. 10,000/- as litigation expenses.

2        The case of the complainant in brief is that the complainant is member of the opposite party No. 4 and being a member, he availed the medical insurance policy of the opposite parties No. 1 and 2 popularly known as Bhai Ghaniya Scheme by paying Rs. 1,300/- to the opposite party No. 4 for the year 2014-15 and a card of the Bhai Ghaniya Scheme was issued by the opposite party through the opposite party No. 4 and book letter was issued by the opposite parties No. 1 and 2 where in terms and conditions was written regarding the scheme. On 29.9.2014 the applicant met with road accident in which his left hip joint was damaged severally but he was not diagnosed for the same by any local doctor but due to which he could not raise and walk with his left leg and due to the complicacies he approached Orthopedic Department of the opposite party No. 3 on 14.10.2014, where he was admitted by this party in his hospital on the same day. The complainant was diagnosed with the fractured and damaged left hip joint and the opposite party No. 3 through its Dr. R.S. Boparai, Incharge Orthopedic Department referred hip replacement surgery. The complainant informed the opposite party No. 3 that he is the member of Insurance Scheme of the opposite parties No. 1 and 2 and this party is on the list of penal of hospitals, so the opposite party No. 3 was told by the complainant to call the executives of the opposite party No. 1 to fill the form for authorization of the treatment and same was done by the opposite party No. 3 and executives of the opposite parties No. 1 and 2 were called and form was filled with them who gave the authorisation for the treatment within 24 Hours of the filling of form but they did not provide any financial support to purchase the artificial hip and the complainant after awaiting for the insurance money had to pay from his own pocket to purchase the hip vide bill/ invoice No. 1079 dated 16.10.2014 for Rs. 1,49,632/-. The complainant has also paid a lot of other bills for his treatment including paid for medicines and Laboratory test totaling Rs. 27,650/- and as such, the complainant had spent about Rs.1,80,000/- from his own pocket, although being a member of insurance scheme of the opposite parties No. 1, 2.  The complainant was discharged on 16.10.2014 by the opposite party No. 3. After returning home the complainant approached opposite party No. 4 to get re-imbursement of the expenses made by him from his own pocket from the opposite parties No. 1 and 2 and the opposite party No. 4 told the complainant to send letters to the opposite parties No. 1, 2 alognwith documents relating to his treatment and bills and the same was done by the complainant many times but all in vain. The acts of the negligence and deficiency in service on the part of the opposite party Nos. 1, & 2 have also resulted in great mental pain, agony, harassment and inconvenience to the complainant.

3        After formal admission of the complaint, notice was issued to Opposite Parties. Opposite Party No. 1 appeared through counsel and filed written version contesting the complaint on the preliminary objections that the present complaint is not maintainable in the present form before this Forum. The claim of the complainant is not covered under the policy as the alleged treatment is not covered under the terms and conditions of the policy as the alleged treatment of THR (Total Hip Replacement) is not payable to the persons below 60 years of age. The complainant is 32 years old, hence he is not eligible for claim of amount allegedly spent on THR treatment and hence the claim was repudiated. The present complaint is liable to be dismissed only on this score. The contract of the Insurance between the respondent and complainant is governed by its Policy terms and conditions. The present complaint is false, frivolous, vague and vexatious in nature and is liable be dismissed under Section 26 of the Consumer Protection Act as the complainant has failed to make out a case of Deficiency of Service as alleged or otherwise within the meaning of Consumer Protection Act, 1986 and has been made to injure the interest and repudiation of respondent. Furthermore the amount claimed by the complaint is completely baseless and irrational and therefore, the complaint is liable to be dismissed. The complainant has not come to the court with clean hands and has suppressed the material facts from this Forum. The complaint is bad for mis-joinder and non-joinder of necessary parties as during the alleged period of occurrence, the policy pertains to United India Insurance Company and not to ICICI Lombard. The period of policy pertains to ICICI from 20 Nov, 2012 to 19 Nov, 2013 and further to United India Insurance Company from 16 May, 2014 to 15 May, 2015. The complainant has filed to setup nexus between the damages claim in the present complaint and the damages suffered by him.  The damages claim is arbitrary, without basis and is an abuse of process of law. On merits, the opposite party has reiterated the same stand as taken in the preliminary objections and denied all the other allegations and prayer was made for dismissal of the complaint with costs. 

4        The Opposite Party No. 2 appeared through counsel and filed written version on the same lines and defence as taken by the opposite party No. 1.

5        The opposite party No. 3 has been deleted vide order dated 10.8.2015 passed by this Forum.

6        The opposite party No. 4 has been proceeded against exparte vide order dated 13.5.2015 by this Forum

7        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. Ld. counsel for the complainant tendered in evidence affidavit of complainant Ex. C-1 alongwith documents Ex. C-2 to Ex. C.6 and closed the evidence. Ld. counsel for the opposite party Nos. 1, 2 tendered in evidence affidavit of Surinder Singh Divisional Manager Ex. OPs 1,2/1 alongwith documents Ex. OPs 1,2/2, Ex. OPs 1.2/3, Ex, OPs 1,2/4 and closed the evidence.

8        We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels for both the parties along with the incidental scope of adverse inference for of some of the evidentiary documents that have been somehow ignored to be produced by the contesting litigants; of course, in the very back-drop of arguments as put forth by the learned counsel(s) for the attending litigants. We observe that the prime dispute (affidavit Ex.C1) prompting the herein deposed complaint pertained to the impugned repudiation of the complainant filed medical-treatment insurance claim for Rs 180,000/- for Total Hip Replacement Surgery by the OP (1 & 2) TPA/ Insurers on the ground that the related policy cover (for joint replacement surgeries) is allowed/ available only to the insured members of 60 years and above in age.  

9        The complainant in order to prove his duly deposed contented complaint has also produced (Ex.C2 to Ex.C6) as supporting documents and that satisfactorily establishes the therein raised allegations. The learned counsel for the complainant has vehemently argued that insurance policy cover to Joint Replacement Surgeries shall be, in general routine, allowed only to the members of 60 years and above in age but the age-criterion shall not be applicable in case of ‘accidental-injuries’ as these cannot be foreseen and may incur to any member(s) irrespective of age. Moreover, the complainant has pleaded non-intimation of any such terms of the policy along with absence of any OP produced documentary evidence of its agreed-upon exclusion and/or dispatch to/ receipt by the complainant of the policy’s terms/ conditions pertaining to the related policy.

10      The OP insurers have simply produced its rebuttal affidavit (Ex.OP1,2/1) along with the copies of other evidentiary documents (Ex.OP1,2/2 to Ex.OP1,2,3/4) trying to prove that the instant medical treatment vide Total Joint Replacement Surgeries was not available to its members below the age of 60 years. It shall be pertinent here to mention that the OP1/2 TPA/Insurers have produced only the relevant (repudiation favored/ related) portions of the policy terms but have not produced its complete exhaustive terms or at least those relating to road-side accidents that has been the case affecting the present complainant, for reasons best known to them alone. We need to realize here that the Joint Hip Replacement Surgery was necessitated on account of ‘road side accident’ as met out to the complainant and not due to age degeneration etc. Somehow, we are not convinced with the pleadings of the OP insurers. It shall be pertinent here to mention that the insured individual (operated-upon patient) was not having any trouble with his Hip Joint as affected by the so-called ‘degenerative changes’ till he got injured in an accident and had to undergo the medically advised treatment/ replacement surgery etc. As such, the delay caused in settlement of an otherwise valid medical-claim and its subsequent repudiation amounts to adoption of unfair trade practices coupled with deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award under the applicable Consumer Protection Act, 1986.

11      Finally, we find here in the present case the complainant had received the medical-treatment at the insurers’ network hospital (Govt. Hospital) who had also applied for pre-treatment sanction (with the insurers) that was however refused for un-fairly explained reasons. And, the treating hospital thus charged Rs 180,000/- approximately @ Govt. Hospital rates only whereas the insurers reimburse the same as per policy issues i.e., @ network moderate rates and presently there will not been any such difference in rates to be necessarily borne by the complainant/ OP insurers.

12      We get firm support to the above proposition/ finding in the light of the judgment of the honorable State Consumer Commission, Punjab; in FA # 1100 of 2010 titled Fortis Hospital, Mohali vs. Medsave Healthcare (TPA) Ltd. & Ors; wherein, paragraph ‘22’ reads as: “After producing the ID Card, respondent no. 6 was to get cashless treatment but that was not provided for the reasons known to the appellant hospital or the insurance company (appellant in other appeal). The appellant Hospital has given the treatment and obtained the expenses for the treatment and the insurance company was liable to reimburse the same, but the District Forum held the appellant hospital liable to pay the expenses, compensation and costs jointly and severally and the said order is required to be modified”. However, in the light of the recent ruling by the honorable State Consumer Commission, Punjab in FA # 1105 of 2014 titled: Sukhdev Singh Nagpal vs. New Karian Pehalwal Co-op Ag Service Society & Ors., the insurers are liable to reimburse but only up to the standard-expenses fixed with the network hospitals for that particular medical treatment.       

13      Further, we find that the impugned insurance claim has been duly filed by the complainant with the OP insurers (competent authority) who have somehow repudiated the same for arbitrarily inadvertent logic after having first refused pre-treatment sanction to treating hospital and have neither produced on record their expert opinion of their TPA (Third Party Administrator) who have been somehow ignored during these proceedings nor the impugned claim-settlement has been supported by some other cogent evidence etc. We also find that the terms and conditions of the related policy have been duly exhibited here but it does not stand proved on record that these ‘claim settlement terms’ stood communicated to the insured complainant and in the absence of the same these cannot be enforced upon him at the stage of settlement of reimbursement of claim(s).

14      In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite party (1 & 2) insurers to pay/ refund the full hospital expenses/ medical charges (as incurred and as settled under the related policy) to the complainant besides to pay him a sum of Rs 10,000/- as cost and compensation (for having suffered undue harassment) within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA form the date of filing of complaint till actual payment.  

15      Copy of the order be communicated to the parties free of cost. After compliance, file be consigned to records.