Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.82 /10.04.2019
Shri Dev Raj Gandhi son of Late Ram Chand
House no. 9/113 Geeta Colony, East Delhi,
Delhi -110031 …Complainant
Versus
OP. National Insurance Company Limited
3rd floor, 6/90, Padam Singh Road,Karol Bagh,
New Delhi. ...Opposite Party
Date of filing: 10.04.2019
Coram: Date of Order: 12.08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no. 19)
- (Introduction to case of parties) – The complainant has grievances of deficiency of services that despite having valid medi-claim insurance policy from OP, the OP had partly paid the medical expenses of Rs.1,71,136/- but failed to reimburse balance medical expenses/claim of Rs.1,57,229/-; the OP had declined this claim under the garb of invoking terms of policy and CMD guidelines. The complainant claims amount of Rs.1,57,229/- alongwith costs and interest @ 12% pa besides other appropriate relief.
- The OP denied the complaint for want of cause of action or deficiency of services. The admissible amount was reimbursed timely but the remaining amount was not within the purview of policy, that is why the balance amount was declined by invoking the terms and conditions of policy and CMD guidelines. The complainant is not maintainable.
2.1. (Case of complainant) – The complainant took Parivar medi-claim/insurance policy from OP vide policy bearing no. 351200/48/1/850002291 effective from 05.02.2018 to 04.02.2019 (hereinafter referred the 'insurance policy'). On 22.12.2018 complainant’s wife Smt. Veena Gandhi (hereinafter referred as "insured-patient") was admitted in Max Super Speciality Hospital, Patparganj for her treatment and surgery since she was hit by cow/bull, she had received fracture in her body and she remained hospitalized till her discharge on 27.12.2018. The hospital raised bill and settled the amount for treatment and surgery for Rs. 3,56,170/-.
2.2 Since the insured-patient is covered under the policy, the complainant applied for cashless and later for reimbursement of balance amount of Rs. 1,57,229/- because the OP had partly paid amount of Rs. 1,71,136/-. But, OP rejected the claim of Rs. 1,57,229/- on 20.02.2019 on the ground that deductions were under various clauses, one of clause amongst others is a clause no. 3.24, being reasonable and customer charges (which means charges for services as supplies which are standard charges for the service providers) but the same are vague. The amount was deducted without justifiable reason and declining of valid claim partly is a deficiency of services actionable under the Consumer law. That is why the complaint u/s 12 of Consumer Protection Act 1986.
2.5 The complaint is accompanied with copies of - insurance policy schedule, prospectus provided to the complainant containing terms and conditions, insurance card, discharge summary, authorization of amount of Rs. 1,71,136/-, settlement receipt of balance paid amount of Rs. 1,57,229/- and in-patient bill summary.
3.1 (Case of OP) - The OP opposes the complaint that nothing is liable to be paid by the OP, since there is no cause of action or any liability against the OP. The part claim was declined properly. The OP is not liable to make any payment
3.2. The complainant came before this Commission without clean hands and by suppressing material fact besides complaint suffers from non-joinder of Max Super Speciality Hospital being a necessary party to the complaint. The subject policy was issued by the OP to the complainant, however, out of total cost of treatment of Rs. 3,28,365/-, the OP allowed the credit limit for procedure/treatment for Rs. 1,71,136/-. The remaining amount of Rs. 1,57,259/- was payable by the patient himself, which was towards applicable deductions, it was also undertaken/declared by the complainant in PPN form of PPN network declaration.
The insured-patient was diagnosed of 1.2 compression fracture and for that balloon kyphoplasty was done. Accordingly, the standard charges for specific service provider and consistent with prevailing charges in the geographical area for identical or similar services, the nature of injury involved and the procedure of balloon kyphoplasty, the maximum admissible amount that too under the CMD guidelines 2017-18, the amount was advanced to the hospital. The paragraph 5 of the preliminary objection enumerates detail of deductions item-wise and one of them is an item under clause 3.24 reasonable and customary charges of Rs. 1,52,394/-. The total deductable amount was Rs. 1,85,226/- reduced by discount by the hospital of Rs. 27,805/-. Since the admissible maximum claim has been reimbursed to the complainant. There is no merits in the claim. The complaint is liable to be dismissed.
3.4 The written statement is accompanied with copies of - Parivar mediclaim for Family policy terms and conditions. list of expenses generally excluded, PPN network declaration, bills. authorisation letter dated 24.12.2018 and 27.12.2018, and settlement receipt of bill paid to Max Hospital.
4. (Replication of complainant) –The complainant filed detailed rejoinder to the written statement of OP, while denying all allegations of written statement but reaffirming the complaint as correct. Since Max Super Speciality Hospital is not a necessary party, it is not impleaded in the complaint. He had spent the amount on treatment of his wife against medical bills filed. The complainant was not disclosed about PPN form nor the admissible amount was reimbursed nor the CMD guidelines 2017-18 were apprised to him nor the same are applicable. He is entitled for the admissible amount covered under the policy.
5.1. (Evidence)- In order to establish the complaint, the complainant Shri Dev Raj Gandhi, filed his evidence by way affidavit supplemented with the documentary record filed with the complaint.
5.2. The OP also led its evidence by filing affidavit of Sh. Raghunath Panwar, AO (Legal), Natinal Legal Vertical of OP, the affidavit is mirror image of the written statement with support of documents filed.
6.1 (Final hearing)- The complainant and the OP have filed their respective written arguments. The written arguments of the parties are blend of pleading and evidence.
6.2. The parties were also given opportunity to make oral submission, therefore, Shri Rajnish Kumar, Advocate [associate of Shri Vivek Kadiyan, Advocate] for OP made oral submissions. No oral submissions were made by and on behalf of complainant despite opportunities.
7.1 (Findings)- The contentions of both the sides are considered, analyzed and assessed by taking into stock of material on record, inclusive of documentary record of the parties, statutory provisions of law and case law.
7.2 The OP took the objection that the complaint is bad for non-joinder of Max Super Specality Hosptial, Patparganj but the OP could not explain as to how presence of the Hospital is necessary and without its presence, the dispute cannot be adjudicated. Therefore, the complaint is not bad for non-joinder of the hospital. Accordingly, this contention is disposed off.
8.1 There are also rival plea on the point of terms and conditions of the policy, the OP invokes the terms and conditions filed with the written statement but complainant denies of furnishing of those or any other terms and conditions with the policy. The OP refers terms and conditions and its exclusion clauses 3.24 (reasonable and customary charges) to show that because of these terms and conditions/CMD guidelines the entire claim was not admissible but part claim, which was admitted and reimbursed. The complainant is well aware of such protocols, he is bound by them.
On the other-side the plea of complainant is that original policy schedule and prospectus/terms of conditions so provided were not containing such clauses being referred and relied upon by OP nor any list of general exclusions were provided nor details of deduction were clear but vague. Since those guidelines/terms and conditions filed with the written statement were not provided to the complainant at any point of time of original policy document issued, then how it could be forced upon the complainant? The OP is duty bound to consider entire valid claim of the complainant.
8.2. These submissions of the parties are assessed, in view of the material on record. The above contentions of the parties are based on material and documents proved by the parties.
The insurance policy is an insurance contract; it is governed by Chapter-III (of Contingent Contracts). The parties are bound by those terms and conditions of contingent contract entered between the parties. The parties are supposed to be aware of those covenants to be followed by them. Unless they are aware of those covenants specifically and completely, the same cannot be complied by them. The insurance policy and its terms and conditions are prepared and issued by Insurer/insurance company, the Insurer/OP is duty bound to provide complete terms and conditions of the contract to the insured to be complied with. In case OP/Insurer does not provide such terms and conditions of policy with the policy, then the OP/insurer does so at its risks. Moreover, there is also settled law (on the point of terms and conditions of policy to be made available to insured) in the following cases :-
(i) Bharat Watch Company (through its partners) vs National Insurance Co. Ltd.[Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016], it was held that in the absence of appellant being made aware of terms of exclusions, it is not open to the insurer to rely upon exclusionary clauses.
(ii) Jacob Punnen and anr Vs United India Insurance Co Ltd (Civil Appeal no.6778/2013), the precedent Biman Krishna Bose case was referred and held that Insurer is duty bound to inform the policy holder about the limitation of policy issued. It was also held that on renewal of policy, insurer is duty bound to inform about change of limitations on its liability that being introduced.
(iii) Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
8.3 Further, the complainant has proved those terms and conditions/prospectus furnished by OP to the complainant at the time of insurance policy, it contains a clause no.1.3 in respect of PPN which reads as “hospitalization options- the policy provides for cashless facility and/or reimbursement of hospitalization expenses for treatment of disease illness or injury. Cashless facility is available only in network providers, subject to prior approval by the TPA. Preferred Provider Network (PPN) is a hospital which has agreed to a cashless packaged pricing for certain procedures for the insured person. The list is available with the company/TPA and subject to amendments from time to time”. Similarly, the OP has also proved terms and conditions of the policy, which has also been refereed in the written statement as clause no. 3.24 [i.e. Reasonable and customary charges means the charges for services or supplies, which are the standard charges for the specific provider and consistent with the prevailing charges in the geographical area for identical or similar services taking into account the nature of the illness/injury involved”. The other clause 3.20 reads as “preferred provider network (PPN) means a network of hospital which have agreed to a cashless packaged pricing for certain procedures for the insured person. The list is available with the company/TPA and subject to amendment from time to time. Reimbursement of expenses incurred in PPN for the procedures (as listed under PPN package) shall be subject to the rates applicable to PPN package pricing”
8.4 On plain reading of the terms and conditions provided to the complainant with the policy schedule and the terms and conditions being relied upon by the OP in support of its defence are self-explanatory that the OP is relying upon those terms and conditions which were not provided to the complainant. The terms and conditions being relied by the OP in support of its defence is materially different from the terms and conditions provided to the complainant at the time of policy. There is also no evidence by the OP that terms and conditions being relied upon by the complainant were not provided, or in other terms there is no rebuttal evidence by OP to disprove the document proved by the complainant or the terms and conditions filed by the OP were actually the only terms and conditions prevailed between the parties. Thus, in view of the settled law what was the not entered between the parties nor the terms and conditions were provided to the complainant, it cannot be forced upon the complainant. There is no specific term under clause no.3.24 or for reasonable and customary charges in the policy documents supplied to complainant. Accordingly, this issue stand disposed off.
9.1 In view of the above, it stand crystal clear and established by the circumstances that the case and claim of complainant is to be assessed from the point of terms and conditions provided and proved by the complainant since those terms were entered between the parties.
9.2 After taking into account stock of all such materials, the following conclusions are drawn:-
(i) Since the OP could not prove the terms and conditions of policy filed with written statement to have been furnished to the complainant nor there is any proof by the OP that the parties had entered into insurance contract for which clause 3.24 were agreed upon between them to be binding for insurance cover and settlement of the claim.
(ii) The complainant has proved prospectus/terms and conditions of policy, which has already been discussed and concluded in paragraph 8 above.
(iii) There is no dispute of hospitalization of insured/patient as well as the amount of medical bills and expenses incurred by the complainant, since the dispute is of clause 3.24 or 3.20 but in view of sub-clauses (i) and (ii) above, the clauses cannot be invoked in the situation of this complaint. Therefore, the plea of OP regarding deductable of Rs. 1,52,394/- under “reasonable and customary charges” is not acceptable. In addition, the OP could not prove in this complaint, what are those reasonable and customary charges in that particular geographical area. It is not a privileged document but document of public domain, which was required to be proved by the OP.
(iv) As per the terms and conditions proved by the complainant, the complainant is entitled for room rent of 1% of the sum insured, the complainant had paid an amount of Rs.28,750/- towards room rent but in estimation of OP, excess amount under the head of room rent was 2,400/- clamed, the excess is to be deductable, therefore, the plea of OP is within the parameter of policy, therefore, an amount of Rs. 2,400/- is to be reduced from amount of room rent.
(v) The complainant has also proved summary of bills, it is under 10 headings but the written statement is mentioning 11 deductions randomly and are not in consonance with the 10 headings of the paid bill but there is pick and choose for disallowing the amount that too under its own terms and conditions filed with the written statement instead of the covenants provided to the complainant.
Since OP was having paid bill under 10 heads, it was not only expected from the OP but necessary to show the deductions, if any made out, under such heading wise, instead of creating camouflage and showing deductions without reference to a particular head. One of the items of 'rent room' was dealt under specific heading but other nine items were not dealt so.
(vi) The complainant had proved medical bills for the treatment Rs. 3,56,136/- out of which an amount of Rs. 1,71,136/- was reimbursed by the OP. For the remaining amount the amount was settled for Rs.1,57,229/-, which was paid by the complainant to the hospital from his own pocket in respect of treatment of insured-patient. Therefore, his claim is covered under the policy for amount of Rs.1,57,229/- less Rs.2,400/-=Rs.1,54,829/-.
(vii) The OP has proved PPN form got signed by the Hospital at the time of treatment or while taking consent by the hospital for treatment. But this shows, if there was already agreement between the insured and insurer, then what was need for such declaration? Secondly, what purposes, it would serve when the complainant was not provided those rates and extent of each cover under PPN and otherwise. It would not give any benefit to the OP nor disprove the case of complainant and
(viii) The insurance policy documents mentions that PPN arrangement between the Insurer and the Hospital, however, the inter-se arrangement either of rates or standard rates, affects the insured or patient. Is it not right of the insured/complainant to have information about it? The answer is in affirmative for the reasons viz (i) firstly, the hospital and Insured entered into such arrangement without information to insured, (ii) secondly, it is inter-se arrangement between them, then the patient-insured shall be provided the detail of rates in advance or at the time of registration, how patients-insured would know about such rates or changed rates etc. and (iii) thirdly, the consumer has right to information of about such terms of OP and Hospital, which may affects his rights under the policy.
10.1 In view of above conclusions, it stand established that complainant's wife was advised admission for treatment and she was hospitalized. The claim was lodged with all original papers but valid claim was partly allowed by OP and partly declined. This is deficiency in services on the part of OP. The OP could not prove its case and stand. Therefore, the complainant is held entitled for reimbursement of balance unpaid medical bill amount of Rs.1,54,829/-, which was spent during the currency of policy and it also within sum insured amount.
10.2 The complainant also claimed interest @ 12% pa and other appropriate relief. Since he had parted with money from his pocket to clear medical bills for his treatment of his wife and it also remained unpaid for want of settlement of claim. There is no agreed rate of interest between the parties. It would be appropriate to allow reasonable interest, therefore, interest @ 5% per annum is allowed [on amount of Rs.1,54,829/-] from the date of complaint till realisation of amount in favour of complaint and against OP.
10.3 The complainant also claims cost but in terms of percentage at the rate of 12%pa, however, the cost should not be in percentage on amount but it should be specific amount. Since, complainant was constraint to file the complaint for want of settlement of entire claim vis a vis had his valid claim was settled completely and paid, he needed not to file complaint. Hence, lump sum costs of Rs.15,000/- is allowed in favour of complaint and against OP to the situation of this case and to meet both ends.
11. Accordingly, the complaint is allowed in favour of complainant and against the OP to reimburse balance amount of Rs.1,54,829/- along-with simple interest @ 5%pa from the date of complaint till realization of amount; apart from costs of Rs.15,000/- to complainant. The OP will pay the amount within 45 days from date of this order, failing which the OP will be liable to pay enhanced interest at the rate of 7% per annum on amount of Rs.1,54,829/-. The OP may deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant.
12. Announced on this 12th day of August 2024 [श्र!वण 21, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh] President
[ijs-105]
