Punjab

StateCommission

FA/12/1068

Bawa Singh - Complainant(s)

Versus

MD India Health Care Service - Opp.Party(s)

S.K.Mahajan

20 Jan 2015

ORDER

2^nd Additional Bench

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No. 1068 of 2012

                                                           

                                    Date of institution: 14.8.2012 

                             Date of Decision:  20.1.2015

 

Bawa Singh son of Sh. Surat Singh, resident of Village Gaggo Mahal, Tehsil Ajnala, District Amritsar.

…..Appellant/Complainant

                                      Versus

1. MD India Health Care Services, TPF Private Limited, Next Proinfo Part, D-38, Industrial Area, Phase 1, Mohali, Punjab through its Managing Director.
2. ICICI Lombard Health Insurance Company Limited, through its Branch Manager, Amritsar.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 21.6.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar.

 

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

Present:-

          For the appellant             :         Sh. S.K. Mahajan, Advocate

          For the respondents        :         Sh. Sandeep Suri, Advocate

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 21.6.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar(hereinafter referred as “the District Forum”) in consumer complaint No.1053 dated 23.9.2010 vide which the complaint filed by the complainant was dismissed.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘OPs’) on the allegations that he got the medical insurance policy from the opposite party bearing Policy No. 4016/00004117, which was valid upto 31.1.2011. At the time of issuing of the policy, it was assured to the complainant that he can get cashless hospitalization in case of illness. The complainant suddenly ill in the month of June, 2010 and was admitted to Fortis Escort Hospital, Majitha Verka By-pass Road, Amritsar on 28.6.2010 and a card was issued for the said scheme. The complainant had gone through bye-pass surgery and remained admitted for the period 28.6.2010 to 6.7.2010 and is still under treatment. Whereas the Ops had failed to give the cashless facility. He had spent a sum of Rs. 1,55,000/- for his treatment. Under the policy, it was free to get the treatment upto Rs. 2 lacs. After the discharge the complainant had taken the treatment and spent Rs. 50,000/;- for curing from the said disease, therefore, the Ops were bound to pay Rs. 2 lacs but they failed, which amounts to deficiency in services on the part of the Ops. Hence, the complaint with a direction to the Ops to reimburse a sum of Rs. 2 lacs, pay Rs. 2,50,000/- on account of compensation and Rs. 5,000/- as litigation expenses.

3.                The complaint was contested by the Ops, who filed written reply taking the preliminary objections that the complainant was not a ‘consumer’; no cause of action had arisen for him to file the complaint, therefore, the same was liable to be dismissed under Section 26 of the Act; the complaint was baseless, false, frivolous and vexatious; it was also bad for non-joinder of necessary party. On merits, it was submitted that it is a matter of record that the insurance policy was issued but it was subject to certain terms and conditions as contained in the policy documents. Due assurance was given by the opposite party to give the cashless facilities, which was subject to certain terms and conditions. Therefore, no merit in the complaint and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, legal notice Ex. C-2, postal receipts Ex. C-3&4, record of Fortis Escorts Hospital Ex. C-5, Insurance Card Ex. C-6, discharge certificate Ex. C-7, another medical record of Fortis Hospital Ex. C-8, X-ray Chest Report Ex. C-9, outpatient report Ex. C-10, receipts & Bills Exs. C-11, 12, 13, 14 & 15, outpatient receipt Ex. C-16, insurance health card Ex. C-17. On the other hand, the opposite party had tendered into evidence affidavit of Gurpreet Bhullar, Legal Manager Ex. R-1, copy of Group Health Ins. Pol. Ex. R-2, guidebook and list of network hospital Exs. R-3 & 4.

6.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum dismissed the complaint of the complainant on the plea that as per the passbook issued by the Ops Ex. R-4 Fortis Escort Hospital, Amritsar was not on the list of network hospital under Bhai Ghanhya Sehat Sewa Scheme for which the card was issued to the complainant and moreover, the complainant had not lodged any claim with the opposite party. No intimation was given for his admission in the Fortis Hospital, ultimately, it was found that the complaint was without merit and it be dismissed.

7.                In the grounds of appeal, it has been stated that the learned District Forum has failed to appreciate the documents on the record and had wrongly dismissed the complaint that he had not lodged any claim and that Fortis Escort Hospital was not on the list of Network Hospital given under the scheme. It was specifically pleaded in the complaint that only card was given to him and no other document was given giving the names of the network hospitals covered by the Ops and in case the terms and conditions have not been supplied then the Ops cannot base their claim on the basis of these terms and conditions.

8.                Firstly taking the plea whether the terms and conditions were not supplied to the complainant, the perusal of the complaint there is no reference that he was not given the copy of the terms and conditions of the policy. In case the complainant is basing his claim on the basis of policy taken by him there is presumption that he must have gone through the terms and conditions of the policy. A reference can be made to the judgment given by Constitutional Bench of our Hon’ble Apex Court reported in 1966 (7) CPSC 44 “General Assurance Society Limited versus Chandmull Jain” wherein it was observed in para No. 11(relevant extract) as under:-

“…..The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration, the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply.”   

9.                Firstly as per the plea taken by the Ops, no claim was lodged with the Ops. In case we go through the documents placed on the record by the complainant, he has placed on the record the affidavit of the complainant Ex. C-1, legal notice Ex. C-2. Postal receipts Exs. C-3 & 4, discharge summary Ex. C-5, card issued under Bhai Ghanhiya Sehat Sewa Scheme Ex. C-6, clearance for discharge Ex. C-7, Ex. C-8 is the bill of Rs. 1,55,000/-, Ex. C-9 investigation report, Ex. C-10 to C-16 are the bills, therefore, the complainant has not been able to place on the record any claim lodged by him. Otherwise in this scheme cashless facility was to be provided from the network hospital of the Ops. The network of those hospitals has been given in their passbook Ex. C-4. This copy is given to every insured when the policy is issued and its perusal will show that Fortis Hospital, Amritsar was not on the network hospital of the Ops, therefore, he had taken the treatment from the hospital, which was not on their network hospitals. Certainly, it is against the terms and conditions of the policy. Otherwise in the above circumstances in case the Fortis Hospital would have been on the list of network hospital then in case the complainant got admitted with hospital and has the insurance copy with him then immediately intimation would have been given to the TPA and on clearance the hospital was under legal obligation to provide cashless treatment facilities but it was not done so by the complainant. The reason is obvious because the Fortis Escort Hospital, Amritsar was not on the list of network hospitals of the OPs. The counsel for the appellant has stated that the appellant was village person and does not know the intricacies to get the treatment from the network hospital. However, in case we go through the complaint filed by him, the complainant has signed in English language, which shows that he is an educated person. No plea has been taken by the complainant in the complaint that he was illiterate person and did not have the knowledge to get the treatment only from the network hospitals. The counsel for the complainant has relied upon the judgment of Hon’ble Punjab & Haryana High Court passed in CWP no. 4916 of 2011 “Surjeet Kumar Vs. Union of India and others”, decided on 10.7.2013 passed by Hon’ble Justice Rameshwar Singh Malik in which the arguments raised by the petitioner were found forceful and convincing that the petitioner, being a simpleton villager and humble agriculturist to whom the terms and conditions of the policy were not handed over or ever explained, was not expected to know the technicalities and super technicalities of the scheme, with a view to avoid the treatment from PGIMS Rohtak. In that case the treatment was taken from Government Hospital. It was further observed that in case the treatment would have been taken from the private hospital then it was  observed that the insurance company would have been justified to deny the claim of the petitioner. Here in the present case, the treatment was taken by the complainant from the private hospital; not the Government Hospital, therefore, ratio of law settled in this judgment is not squarely applicable to the facts and circumstances of the present case.

10.              Therefore, we are of the opinion that the claim of the complainant was rightly repudiated as he had violated the terms of the policy by not taking the treatment from the approved network hospital of the Ops and we affirm the findings of the learned District Forum.

11.              In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

12.              The arguments in this appeal were heard on 16.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

13.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

January 20, 2015.                                                                                                                                           (Jasbir Singh Gill)

as                                                                                                                                                                                 Member