Karnataka

Bangalore 4th Additional

CC/1098/2016

Mrs. Hemalatha H.S - Complainant(s)

Versus

M/s. Star Health And Allied Insurance Co. Ltd., - Opp.Party(s)

Mr.P.N.Ramesh

11 Jul 2018

ORDER

Complaint filed on: 09.08.2016

                                                      Disposed on: 11.07.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1098/2016

DATED THIS THE 11^th JULY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mrs.Hemalatha.H.S,

W/o Bapu Krishnaswamy,

aged about 61 years,

R/at no.8/1, Patalamma

Temple Street, Basavanagudi, Bengaluru-04.

 

By Advocates

M/s.Bengaluru Law Associates     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Authorized Signatory

Star Health And

Allied insurance company ltd.,

KRM Centre, VI floor, no.2, Harrington Road, Chetpet, Chennai-600031.

 

2. The Authorized Signatory

Star Health And

Allied insurance company ltd,

JVT Tower, #3, 3^rd floor,

8^th A main road, Sampangiramnagar,

Bengaluru-27

 

By Adv.Sri.Y.P.Venkatapathi

 

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to clear and reimburse the legitimate claim of Rs.1,10,000/- to the Complainant; to pay Rs.20,000/- towards mental agony, to pay cost of litigation of Rs.20,000/- together with 16% interest from the date of repudiation and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, based on the Ops representation, she took the Group Mediclaim insurance policy (hereinafter referred as the said policy) bearing no.141124/01/2016/008069 by paying the prescribed premiums. It is the case of the Complainant that, she was experiencing severe pain in both knees joint which practically curtailed her day to day living and decided to seek medical investigation by way of x-rays of knees (AP & Lateral view) which revealed presence of Osteoarthritis in both knees. Based on this, the medical advice was to undergo treatment using Sequentially Programmed Magnetic Field Therapy (hereinafter referred as SPMF therapy) for 21 days consecutively at SBF Healthcare and Research Centre (hereinafter referred as SBF) of which Wg.Cdr.Dr.V.G.Vasishta (Retd), MD in radiology, is the CEO (hereinafter referred as the said doctor). During the treatment the affected joints were treated using the said therapy, one hour everyday followed by physiotherapy for ½ hour continuously for 21 days. The treatment afforded has resulted in substantial relief from the pain and has increased her mobility substantially, which enabled the Complainant to resume her normal day to day activities. The Complainant further submits that, in all, she expended for the treatment, a sum of Rs.1,10,000/-. After having obtained the necessary details of the treatment afforded to her, he has lodged a claim for payment of Rs.1,10,000/- based on the treatment summary and consolidated bill duly given by the SBF dtd.23.03.16. Much to the shock and dismay, the same stands duly repudiated by the Op dtd.15.04.16. The reason is duly illegal & unwarranted and the legitimate claim of the Complainant rejected only in order to not pay the legitimate amount expended by her for which, she was eminently eligible for reimbursement. In this regard, she states that as earlier, for severe joint pains namely Osteoarthritis, the only effective remedy was to undergo knee replacement surgery which was not only time consuming but also expensive covering number of days of hospitalization. The said doctor has conducted extensive research in the said field. The research and clinical trials indicated substantial relief to several patients and therefore have been published in several national and international journals of repute. The Complainant further submits that, as per the terms of the policy itself, there is no whisper that treatment for Osteoarthritis is precluded from seeking reimbursement. The very clauses quoted by the Op have no application at all to the facts and circumstances of the case, given that the treatment is a result of technological advances which results in the growth of new cartilage. Furthermore, as enumerated above, the said therapy is the brain child of the said doctor who is a highly qualified professional and has an MD in radiology.  The same fact has also survived the test of the forum and cannot be considered a ground for repudiation. The Hon'ble State Commission has also expressly held that the said treatment even if taken in as an inpatient, should be allowed. Moreover, Osteoarthritis is an age-related disorder, and repudiation of age related disorders after collecting premiums from senior citizens amounts to unfair trade practice. The Complainant further submits that, similar claims have been allowed by Op, and therefore, repudiating the claim of the Complainant amounts to discrimination. In this context, she issued legal notice dtd.15.06.16 but there is no favorable reply from Ops. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1 & 2 did appear and filed common version denying the contents of the complaint. The sum and substance of the version of the Ops are that, it admits in respect of SPMF treatment taken by Complainant for her knee joint in the said SBF healthcare with the said doctor. Ops further submit that, the claim repudiated by the Ops as her claim fell under exclusion no.18, of the policy, which reads thus: The company shall not be liable to make any payment under this policy in respect of any expenses what so ever incurred by the insured person in connection or in respect of;…….. The Exclusion no.18 reads as “expenses incurred on enhanced External Counter Pulsation therapy and related therapies and Rotational Field Quantum Magnetic Resonance Therapy and such other similar therapies.” Hence, the claim is not admissible. Thus the Ops are not liable to make any payment in respect of the expenses incurred by the insured person for Rotational Field Quantum Magnetic Resonance Therapy (RFQMRT) and such other similar therapies. Hence, as present admission of the Complainant was for the treatment of SPMF which is a similar to RFQUMR, as stated above, it is excluded. Ops further submit that, the liability/obligation of the Ops shall not exceed the sum insured, under any circumstances, all claims put together, during the period insurance.  To advert and to examine the claim of the Complainant in consonance with the above and also as the other conditions as per the complaint, the Complainant was not admitted to hospital for 24 hours as inpatient for taking or receiving treatment, but underwent SPMF therapy for 21 days consecutively, for one an hour each day, followed by physiotherapy for half an hour on day care basis.  Further any kind of allegations contrary to the rights and obligations agreed under the policy are not enforceable. Hence on these grounds and other grounds pray for dismissal of the complaint.

         

          4. The Complainant to substantiate her case filed affidavit evidence and got marked the documents as Ex-A1 to A7 and also produced 6 documents. The employee of Op.no.1 & 2 filed affidavit evidence and got marked the documents as Ex-B1 to B7. We have gone through the available materials on record. Heard.

  

5. The points that arise for our consideration are:

1. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether she entitled for the relief sought for ?    
2. What order ?

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Ops. It is the specific case of the Complainant that, based on the representations doled by the representatives of the Ops, she was prevailed upon to take the Group Mediclaim insurance policy bearing no.141124/01/2016/008069 by paying the prescribed premiums. The Complainant was experiencing severe pain in both knees joint which practically curtailed her day to day living and decided to seek medical investigation by way of x-rays of knees (AP & Lateral view) which revealed presence of Osteoarthritis in both knees. Based on this, the medical advice was to undergo treatment using Sequentially Programmed Magnetic Field Therapy (SPMF therapy) for 21 days consecutively at SBF Healthcare and Research Centre of which Wg.Cdr.Dr.V.G.Vasishta (Retd), MD in radiology, is the CEO. During the said treatment, the affected joints were treated using the said therapy, one hour everyday followed by physiotherapy for ½ hour continuously for 21 days. The said treatment afforded has resulted in substantial relief from the pain and has increased her mobility substantially, which enabled her to resume her normal day to day activities. This fact is not specifically denied by Ops.  With regard to the said treatment she paid a sum of Rs.1,10,000/- to the SBF centre by way of cheque. This fact is also not denied by Ops. After having obtained the necessary details, the Complainant has lodged a claim for payment of Rs.1,10,000/- based on the treatment summary and consolidated bill duly given by the SBF center dtd.23.03.16. To substantiate her case, she has produced Ex-A2 & A3. The Ops instead of honouring the claim got repudiated the claim by invoking the exclusion clause no.18 of the said policy stating that, Complainant is liable to make any payment in respect of any expenses incurred by the insured person for Rotational Field Quantum Magnetic Resonance Therapy (RFQMRT) and such other similar therapies. Hence, as present admission of the Complainant was for the treatment of SPMF which is a similar to RFQUMR. The reasons assigned by Ops to repudiate the claim, the Complainant seriously protested stating that, similar treatment has been taken by many of the dignitaries as her excellency Mrs.Pratibha Patil, the former Hon’ble President of India, Mrs.Renuka Chowdhury, former Hon’ble Minister for Women and Child Development, Air Chief Marshal I.H.Latif (retd.,), former Chief of the Air Staff, Ambassador to France, Governor of Maharashtra, Governor of Uttarkhand who have given laudable remarks commending the treatment afforded to them by the said doctor who is the C.E.O of SBF centre. In this regard, it is also pertinent to state that, in the wake of the success of the medical research of the said doctor, the State Government of Karnataka has designated him with ‘Suvarna Karnataka Rajyotsava Award’ which speaks for itself. In this context, Complainant placed reliance on the contents of Ex-A5 which is the copy of appreciation letter issued by her excellency Mrs.Pratibha Patil, the former Hon’ble President of India so also the appreciation letter issued by Mrs.Renuka Chowdhury, former Hon’ble Minister for Women and Child Development. In this context, we find there is considerable force in the contention taken by the Complainant that her ailment was successful by undergoing the said therapy as explained in para 3 of the complaint.

 

8. With regard to repudiating her claim is illegal, arbitrary is concerned, Complainant has placed reliance on the contents of the two decisions (1) R.P.no.2362/14 of Hon’ble National Commission & (2) Appeal no.2502/2010 of Hon'ble Karnataka State Commission. Referring to these citations submit that, claim repudiated by Ops illegal and arbitrary. Per contra, learned counsel for the Ops urged before us stating that, there is violation of exclusion clause no.18 of the policy in respect of so-called treatment taken by the Complainant. In support of their contention, they placed reliance on the following five citations:

1] Manu/SC/0702/1999 in the case of Oriental insurance company ltd., vs. Samayanallur Primary Agricultural Co-op Bank

2] Manu/SC/0495/1999 in the case of Oriental insurance company ltd. vs. Sony Cheriyan

3] Civil appeal no.2080/2002 in the case of Vikram Greentech (I) ltd., & Anr., vs. New India Assurance co., ltd.,

4] Appeal (Civil) no.6277/2004 in the case of United India insurance company ltd., vs. M/s.Harchand Rai Chandan Lal

5] SC-2007-1263 in the case of P.C.Chacko and Anr., vs. Chairman, LIC of India & Ors.

 

9. We have placed reliance with regard to the respective plea of the Complainant as well as the Ops. First we placed reliance on the decisions cited by learned counsel for the Ops. The decisions at sl.no.1 & 4 are in respect of “The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial far-fetched meaning could be given to the words appearing in it.” With regard to the decision at sl.no.2, the issue was in respect of “accident, agreement, carriage, claim, complaint, construction, consumer, consumer dispute, contract, dangerous or hazardous nature, dispute, District Forum, extent of liability, goods carriage permit, grant, hazardous good, hazardous substance, human life, insurance policy, interest, liability, limitation, live-stock, loss suffered, maintenance, National Commission, owner, pass, permit granted, prohibition, public place, revision, State Commission, trade, transport, transport vehicle.” The facts of the said decision are quite different to the present case on hand. In the instant case, the treatment taken by the Complainant is not specifically excluded in exclusion clause no.18 of the policy. Hence, with due regard, this citation is not applicable to the contention taken by Ops. With regard to the decision at sl.no.3, claim on account of damages to the poly-houses were not covered under the policy. The fact of the said decision is also quite different to the present case on hand. Hence, the said decision also not applicable.  With regard to the decision at sl.no.5, the issue is with regard to the ‘non-disclosure of material facts’. In the instant case, it is not the specific case of the Ops that, Complainant has not disclosed the material facts. She has specifically stated in her complaint in para 3 stating that, at the instance of Ops, she availed the Group Mediclaim insurance policy and she has taken the treatment of SPMF therapy which according to us, is not comes within the exclusion clause no.18. Hence, the decisions at sl.no.1 to 5 cited by the learned counsel for the Ops are not come to the defence of them.

 

10. Now turning to the decisions cited by learned counsel for the Complainant at sl.no.1 i.e. R.P.2362/14 of Hon’ble National Commission in the case of New India Assurance co., ltd., & anr. vs. Ishu Motwani, wherein, it has been specifically held as:

5.     It is the case of the Revision Petitioners that the treatment which the Respondent has taken does not fall within the purview of the Policy.  The Respondent was treated for Osteoarthritis of both knee using Sequentially Programmed Magnetic Field Therapy (SPMF Therapy TM) for 21 days consecutively in the SBF Healthcare and Research Centre.   During this treatment, the affected joints were treated in the AKTIS TM machine for one hour followed by physiotherapy for ½ hour and observation for 1 ½  hours.  The said treatment was taken from 21.12.2012 to 10.01.2013. The Respondent made a claim of Rs.1,13,089.50/-, which was repudiated by the Revision Petitioners under Exclusion Clause 4.4.17 which reads as under:

"All treatment like age related Mascular Degeneration (ARDM) AND OR Choroidal Neo Vascular Membrane done by administration of Lucentis/Avantis/Macugen/Avastin and other related drugs as intravitreal injection, Rotational Field Quantum Magnetic Resonance (RFQMR), External Counter Pulsation (ECP) and Hyperberic Oxygen Therapy".

 

6.     The Learned counsel for the Revision Petitioners drew our attention to RFQMR, i.e. Rotational Field Quantum Magnetic Resonance treatment which is excluded.  We observe from the record that SPMF treatment which the complainant had undergone is not specifically excluded and it is stated before us that this treatment involves therapy where cartillage is regrown and this helps in slowing down the degenerative Arthritis. 

7.     Brief   perusal of the Policy shows that it is a Goodhealth Policy Certificate issued on 1.9.2012 to the insured who is 61 years of age.  Issuing a Policy to a person of 61 years of age and then stating that 'age related diseases' are excluded amounts to unfair trade practice.  When SPMF Therapy is not specifically excluded,  the act of the Opposite Parties in repudiating the claim on the ground that the treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service.

 

8.     Based on the material on record, we are of the considered view that the State Commission has rightly dismissed the Appeal and we direct the Revision Petitioners to reimburse the amounts directed by the District Forum within four weeks' from the date of receipt of this order.

 

11. Further the decision at sl.no.2 i.e. Appeal no.2502/2010 of Hon'ble Karnataka State Commission in the case of National Insurance co., ltd., vs. O.P.Kinger & E-Meditek Solutions ltd., wherein it is held as under:

3. The case of the Respondent No.1 is that:-

His son had taken the Medi-claim policy for his parents i.e., the complainant and his wife as well as himself, his wife and children and he was regularly paying the premium. It is further case of the respondent No.1 that the wife of the complainant was suffering from severe osteoarthritis, both knee joints and both hip joints. Therefore, she was suggested by the senior consultant that the RFQMR therapy using Cytotron will be ideally suited for her multiple joints involvement and the RFQMO therapy is a latest advanced technology and the patients are given one hour to one and half hour daily therapy on Cytotron. Therefore, respondent No.1 before starting the treatment of his wife wrote to E-MEDITEC SOLUTIONS LTD., who are the service providers of the O.P. for cashless facility. They informed the complainant that they have checked all the documents and informed the complainant that the hospital where the patient is taking treatment is currently not under their network and hence they requested the complainant to register his claim as a reimbursement claim for payment. After treatment, the respondent No.1 sent the claim for reimbursement, but the same came to be rejected by the appellants/O.Ps. It is further case of the complainant that similar claims were admitted by the Ombudsmen of the O.P. at Chandigarh, Punjab, Haryana, Himachal Pradesh and Jammu and Kashmir and paid the amount. But in the instant case, the appellant/O.P. declined to reimburse the medical expenses. Therefore, filed the complaint.

Point Nos (2) & (3):-

10. The contention taken by the appellant that since the son of the complainant has taken a Medi-claim policy. But the complaint came to be filed by his Father namely respondent No.1 is not maintainable. The D.F. is not right in not considering the Clause 4.1, 4.13, 4.23. Any treatment has taken as out patient for such type disease, the Insurance Company is not liable to indemnify by way of reimbursement to the policy holder or beneficiary of the policy holder.

11. There is no dispute with regard to the relationship of policy holder. The Mother of the policy holder has taken treatment and the Father of the policy holder has filed a complaint before the D.F. Since the son of the respondent No.1 had taken a medi=claim policy to cover the risk of his parents as well as his wife and children. Of-course, the respondent No.1 who filed a complaint because of the repudiation of his claim for reimbursement of the amount spent towards medical expenses of his wife. The parents are the beneficiaries of the Medi-claim policy taken by their son. The complaint filed by his Father i.e., beneficiary on behalf of his wife not looses right of filing the complaint. The claim of the complainant has been forwarded to the Ombudsmen for settlement. But the Ombudsmen held that the amount spent for the ailment of osteoarthritis i.e. joint pain, the beneficiary has taken treatment as an out patent is not entitled to reimbursement. Therefore, the respondent No.1 filed a complaint before the D.F. mainly on the ground that the similar claim petition filed by beneficiary/ the policy holder has been allowed by the same company of the other states. Therefore, his claim is also on the similar grounds. The rejections made by the appellant/O.P. and the Ombudsmen amounts to discrimination.

 

12. The appellant has not disputed about the amount spent by the complainant for treatment purpose. In view of the fact that the appellant/O.P. has not disputed the treatment taken by the wife of the complainant for her ailment as an out patient as per the advise of the senior Doctor and a huge amount spent for the treatment purposes. The circular if any issued by the Head Office of the appellant on the strength of the terms and conditions of the policy, amounts to denial of justice.

13. The D.F. in Para-7 of its order held that the respondent/complainant has not challenged the order passed by the Ombudsmen is not a ground that the complainant is not entitled to file a complaint before the D.F. for the deficiency of service.

 

14. The D.F. has stated in Para-7 that in the said case at Para-6, it has been ordered thus:-

It is hereby ordered that the admissible amount of claim related to Cytotron Therapy (RFQMR) to regenerate and repair carilage of the knees undertaken by the complainant and his wife in Sibia Medical Centre be paid to the complainant by the insurer.

Therefore, in the instance case, the wife of the complainant has undergone treatment for Cytotron Therapy. If the Insurance Company honours the reimburse the medical expenses of the beneficiary of the policy holder in one State and the other State of the same Insurance Company repudiated the same, which amounts to discrimination. Therefore, even if the treatment has taken by the patient as an out patient without admitting as an inpatient, is entitled to claim reimbursement. The main purpose of getting the medi-claim policy is to reimbursement. Therefore, the Osteoarthritis is bound to occur in the elderly people cannot be denied. Therefore, we are of the opinion that the D.F. is right in allowing the complaint of the respondent No.1. Accordingly we proceed to pass the following:-

 

:-ORDER:-

The appeal is DISMISSED. No order as to costs.

The amount deposited by the appellant shall be transferred to D.F. concerned immediately for the needful.

 

12. We placed reliance on the said two decisions cited by the learned counsel for the Complainant. We find there is considerable force. In the similar treatment cases, the claims were admitted by the Ombudsmen of the Op at Chandigarh, Punjab, Haryana, Himachal Pradesh and Jammu and Kashmir and paid the amount. But in the instant case, by assigning the exclusion clause no.18, Ops have repudiated the claim as per the letter dtd.15.04.16 as per Ex-A4 which is not only arbitrary and also illegal. Hence, we come to the conclusion that, the Complainant is entitle for entire amount of Rs.1,10,000/- spent in respect of availing the said treatment. The Complainant has also sought for an amount of Rs.20,000/- towards mental agony, trauma & hardship suffered by her. Hence, we are of the opinion to direct the Ops to pay an amount of Rs.10,000/- being compensation. Cost of litigation is fixed to Rs.5,000/-. Accordingly we answered the point no.1 in the affirmative.

 

13. Point no.2: In the result, we passed the following:

 

 

 

ORDER

 

          The complaint filed by the Complainant is allowed.

 

          2. Op.no.1 & 2 are jointly and severally liable to pay an amount of Rs.1,10,000/- to the Complainant, being the medical bill for the treatment (SPMF therapy) taken by her at SBF Centre.

 

3. Ops are also directed to pay compensation of Rs.10,000/- and cost of litigation of Rs.5,000/- to the Complainant.

 

4. We also directed the Ops to realize the said amount within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 11^th July 2018).

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.Hemalatha.H.S, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Terms & conditions of the policy
Ex-A2 & A3	Treatment summary and consolidated bill
Ex-A4	Repudiation letter dtd.15.04.16
Ex-A5	Laudable remarks in respect of Wg.Cdr.Dr.V.G.Vasishta (retd) CEO of SBF
Ex-A6	Legal notice dtd.15.06.16
Ex-A7	Postal receipts and postal acknowledgements
Doc.no.1& 2	Claim form part A and part B
Doc.no.3	Treatment summary
Doc.no.4	Repudiation of claim
Doc.no.5	Reply notice
Doc.no.6	Terms & conditions of the policy

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Smt.Pushpa Sattigoudar, who being the employee of Op.no1 & 2 was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Reply notice to Complainant dtd.27.06.16
Ex-B2	Repudiation of claim dtd.15.04.16
Ex-B3 & B4	Claim form part A & B
Ex-B5	Treatment summary
Ex-B6	Policy
Ex-B7	Original terms & conditions

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT