Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 153/25.04.2016
Smt. Shashi Sharma w/o Sh. V. P. Sharma,
R/o 7/40, Chiranjiv Vihar,
Ghaziabad (U.P.) …Complainant
Versus
The National Insurance Company Limited
(through its Managing Director)
Branch Manager,
2-E/9, Jhandewalan Extension, New Delhi ...Opposite Party
Date of filing: 25.04.2016
Coram: Date of Order: 06.07.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
ORDER
Inder Jeet Singh , President
The case is scheduled today for orders (item no. 7)
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services for want of settlement of mediclaim that despite mediclaim insurance cover by policy no. 361201/48/11/8500000649 (hereinafter referred as ‘insurance policy’) purchased on 30.09.2011 in the name of complainant’s husband Sh. V. P. Sharma and covering him, the complainant and their daughter. However, the complainant felt sick/ pain in stomach, however, mediclaim raised was not reimbursed. That is why the complaint for refund of Rs. 2,04,837/- spend on hospitalisation and treatment, compensation of Rs. 2 lakh in lieu of physical and mental agony, litigation expenses of Rs. 35,000/- and other reliefs.
1.2. The complaint has been opposed by the OP that ailment stated was not covered within the purview of insurance policy issued, besides the complaint is barred by time. It cannot be construed deficiency of services.
2.1. (Case of complainant) –The insurance policy was purchased on 30.09.2011 and all of a sudden on 05.11.2011 the complainant felt pain in her stomach, she was taken for treatment to Dr. Ajay Gupta, who advised tests from Vrinda Diagnostic. After conducting the tests, she was diagnosed of pancreatitis, she was advised for admission in Yashoda Hospita, Ghaziabad, she was taken to that hospital under the treatment of Dr. Ajay Gupta. The complainant informed OP through Safeway TPA Pvt. Ltd. (briefly TPA) in respect of diagnosis, treatment and cashless facility. The TPA provided provisional approval for cashless facility to Yashoda Hospital, thus the complainant considered to continue her treatment smoothly.
On 15.11.2011 the provisional approval for treatment was refused by TPA and on query it was told that there was stone in the gallbladder as per reports dated 05.11.2011, it was not mentioned by the hospital; whereas, Dr. Ajay Gupta had given certificate of no stone in the gall blader. The TPA as well as the OP refused to provide cashless facility on false grounds, which caused physical and mental agony to the complainant besides monitory losses. Thus, complainant’s husband was constrained to pay medical bills/ expenses. The OP has not complied terms and conditions of the mediclaim policy. Thence, the complainant’s husband sent various letters/complaint to other authorities but OP paid no heed to settle the claim.
2.2. By considering all these circumstances and conduct of OP the complainant sent/served legal notice dated 29.01.2015 through her counsel but OP has not replied it nor any attention was given nor a single penny of claim released to the complainant. That is why the complaint for the relief claimed.
2.3 The complained is accompanied of copies of – legal notice dated 29.01.2015 with postal receipt and acknowledgment, identify proof, letters/correspondence dated 17.11.2011, 25.11.2011, 09.12.2011, OP’s letter dated 22.11.2011, 30.11.2011, 12.12.2011, 23.11.2012 extract of citation the Punjab Kesari, emails, policy insurance certificates, additional information request form by TPA, prescriptions, tests, reports, final bill, advance receipt and receipt, certificate issued by Yashoda Hospital, ultrasound/CT scan report, ICU observation charge, treatment continuation sheet, investigation report and so on.
3.1 (Case of OP) - The OP does not dispute issue of insurance policy as well as the complainant is covered under the policy. The complainant was hospitalized and initially approval for Rs. 15,000/- was granted by OP for management of acute pancreatitis for idiopathic cause as USG report was normal. However, during the course/ hospitalization, CT abdomen was conducted and it came in report that complainant was suffering from gallbladder stone and simultaneously the team of OP generated a query regarding cause of acute pancreatitis, then treating doctor provided certificate by stating the cause “gall bladder stone and as per the policy and terms and conditions, the same is covered after two years of the policy”. Immediately, the OP withdrew the cashless grant being it was a first of year. Moreover, as per clause no. 43 of the Parivar Mediclaim for Family Policy, it bars the disease of complainant for a period of two years.
3.2. Moreover, the complainant was to file the complaint on or before 04.04.2015 being the maximum time limit for filing the complaint but the complainant was filed on 21.04.2016, therefore, it is barred by section 24A of Consumer Protection Act 1986. In addition, the insurance policy was purchased on 30.09.2011 and immediately thereafter the complainant was admitted in hospital on 05.11.2011, there was stone in the gallbladder it cannot came all of a sudden. The complainant had played hide and seek while taking the policy.
3.3 The OP denies all other allegations of the complaint that neither the legal notice was receive nor the TPA refused the cashless facility without reasons but the claim was declined within the purview of insurance policy. That is why complaint is liable to be dismissed.
3.4 The reply is accompanied with terms and conditions of mediclaim for family policy, CT scan dated 06.11.2011 and ultrasound 06.11.2011 to support the plea taken in the written statement.
4. (Replication of complainant) –The complainant filed detailed para-wise rejoinder to the reply of OP, briefly, the complaint is correct, secondly at the time of purchasing the policy the complainant was not suffering from any ailment, thirdly the clause 4.3 of insurance policy does not mention about any stone in gall bladder to invoke that clause. Further, the doctor has issued the certificate of no stone in the gall bladder besides after exhausting all the remedies with the OPs as well as other authorities after repudiation of the claim, the complaint is within period of limitation. The complaint is correct.
5.1. (Evidence)- In order to establish the complaint and allegations therein, complainant Smt. Shashi Sharma filed her affidavit of evidence with the support of documents filed with the complaint.
5.2. The OP was not filling affidavit of evidence, therefore, matter remained adjourned from time to time and finally, the OP could not lead evidence, therefore, OP/Evidence was closed on 01.05.2019.
6.1 (Final hearing)-The complainant and the OP was given opportunity to file written argument, consequently, both the sides filed their respective written arguments followed by supplementary arguments on behalf of complainant, the OP also filed written arguments taking legal objection that complainant could not prove her case as well as the complaint is barred by period of limitation.
6.2. The parties were also given opportunity to make oral submissions, therefore, Sh. Amulya Upadhaya, Advocate for complainant and Sh. V. K. Gupta, Advocate for OP made their oral submissions.
6.3. During the pending of the complaint, the complainant filed an application seeking production of original record by the OP, the OP had taken the time to verify the same, however, the original record was not produced vis-à-vis the photocopies of record were filed by the complainant.
7.1 (Findings)-The case of both the sides are considered, keeping in view the material on record either in the form of narration given in affidavit of evidence by the complainant or the documentary record. There is no defence of the OP, however, still onus is on the complainant to prove the complaint. After considering them the following conclusions are drawn :-
(i) None of the parties have mentioned tenure of the insurance policy in their pleadings, however, the insurance policy was effective from 20.09.2011. The complainant was hospitalized on 05.11.2011, which is not disputed, therefore, the hospitalization of complainant was within the validity of insurance policy.
(ii) The complainant’s ultrasounds of whole abdomen were done on 05.11.2011, 06.11.2011 and CT scan was also done on 06.11.2011. Thereafter, ultrasound of whole abdomen was also done on 11.11.2011.
In the ultrasound reports of 05.11.2011 & 06.11.2011, no calcull was seen in the gall bladder but in the CT scan there was ?calculus was opined. In the ultrasound of whole abdomen of 11.11.2011, it reports gall bladder is distended and no obvious calculus seen. [Gall bladder is distended means a condition when gall bladder becomes swollen or enlarges]. Dr. Ajay Gupta of Yashoda Hospital had issued certificate on letter head (without date, page 816 of paper book of complaint) that the patient was suffering from acute severe pancreatitis and admitted since 05.11.2011. Presently, the patient has B/L (i.e. bilateral moderate pleural effusion), and she needs further hospitalization for another one week to ten days. [Bilateral pleural effusion simply means abnormal accumulation of water/fluid in the lungs is built up of excess fluid between the pleura outside the lungs vis-à-vis it disappears with treatment].
However, the complainant has proved diagnostic reports and investigations besides the bills paid but there is no discharge summary proved by the complainant. It appears from the medical bills that the date of admission was 05.11.2011 and complainant was discharged on 21.11.2011, if the complainant was not diagnosed of stone in the gall bladder, then for what purposes she remained admitted in the hospital is not clear from the record file or what treatment was finally given to the complainant. The final bill just reflects on heading that she was under treatment of Dr. Ajay Gupta, Gastroenterologist.
(iii) The complainant was discharged on 21.11.2011 and cashless facility was declined after her admission on 05.11.2011. The legal notice was sent in January 20015. There is no other date available on the record for computing the period of limitation but the OP computes period that complaint ought to have been filed on or before 04.04.2015, meaning thereby time was subsisting till around 05.04.2013. The legal notice of January 2015 does not depict as to how the complainant was pursuing the matter with other authorities or OP nor the complaint so mentions name of office or authority. Therefore, the complaint filed on 25.04.2016 is beyond statutory period of two years prescribed u/s 24A of Consumer Protection Act 1986 by computing the time from the date of discharge on 21.11.2011. The documentary record filed by complainant does not depict any fact or date beyond 05.04.2013 to consider continuity of cause of action or existence of cause of action to construe that the complaint was within time on the date of filing it on 25.04.2016.
7.2. In view of above, the complaint fails. The complaint is dismissed. No order as to costs.
8. Announced on this 6th day of July, 2024 [आषाढ़ 15, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules, besides to upload on the website of this Commission.
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