Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor MaharanaPratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.218/02.08.2019
C1.Poonam Manoj Chugani w/o Shri Amit Ajmani
r/o 40, Pocket B, Sarita Vihar, New Delhi -110076
C2. Sunder Singh Khurana s/o Sh. G. R. Khurana,
r/o B-40, SaritaVihar, New Delhi-110076 …Complainants
Versus
OP- National Insurance Company Limited
(through its Divisional Manager), Division No. XXII,
4th Floor, Pal Mohan House, 5/67, Padam Singh Road,
Karol Bagh, New Delhi-110005 ...Opposite Party
Senior citizen's case
Date of filing: 02.08.2019
Coram: Date of Order: 20.09.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.23)
1.1. (Status of the parties)- The complainant no.1 has been working in M/s Ericsson Global India Pvt. Ltd., where she took insurance policy through her employer, which was also opted for her spouse, their daughter, parents and mother-in-law. The complainant no.2, aged about 82 years, is father of complainant no.1. The OP is Insurer, who issued the insurance policy bearing no. 354500501710000786, for sum insured of Rs. 5 lakh for complainant no. 2 for period 09.11.2017 to 08.11.2018 (hereinafter referred as "the insurance policy").
1.2.(Introduction to case of parties) –The complainants/insured have grievances of deficiency of services against OP/Insured that complainant no.2 was diagnosed of osteoarthritis in both knee joints, for which he took treatment of SBM therapy for 21 consecutive days from SBF Health Care and Research Centre by spending amount from their pockets. But OP declined their claim on the ground that treatment unproven experimental treatment, alternative treatment, magnet-therapy , which are not covered and claim was repudiated. That why this complaint was filed.
1.3.The complaint is opposed by OP that declining the claim was because of treatment was unproven experimental treatment, of magnet-therapy and similar treatment are not covered and claim was not payable . Since the claim was not covered under the policy by virtue of exclusion clause 4.15 and claim was repudiated properly. This is not deficiency of services.
2.1. (Case of complainant)–The complainant no.2’s daughter/complainant no.1 has been working with Ericson Global India Pvt. Ltd. since 16.05.2016 and she took the insurance policy through her employer from OP. The insurance policy was for “employees as well as voluntary parental policy” to covers the employee herself, her parents and in-laws. The policy also covers, as opted, the complainant no.1’s father (i.e. complainant no.2), mother and mother-in-law besides her husband and daughter. The sum insured under parental policy for complainant no.2 is Rs. 5 lakh. The complainant no.1 had also paid an amount of Rs.70,772/- for the policy. That is why the complainants are consumer and OP is service provider.
2.2. It was around April-May 2018, when the complainant no.2 having pain in his both knees. Initially, the pain was bearable and complainant no. 2 was taking some treatment and massage at home. However, the pain grew to become unbearable and intolerable, then in June 2018 the complainant came to know about a treatment known as Sequentially Programmed Magnetic Field Therapy (hereinafter referred briefly as "SPMF Therapy") for osteoarthritis. The complainant was also informed through his friends and well-wishers that there is health care facility in Bangalore by name SBF Health Care and Research Centre, who had treated large number of patients of osteoarthritis through its advance treatment/SPMF therapy.
2.3. On 18.07.2018, the complainant no.2 went for consultation at SBM Health Care at Bangalore, where investigations and X-ray revealed that he had osteoarthritis in both knee joints. He was advised SPMF therapy at the earliest for 21 consecutive days. The complainant no.2 commenced that therapy from 18.07.2018, it lasted on 07.08.2018 being continuation for 21 day. During that treatment, complainant’s both affected joints were exposed to SPMF for one hour, followed by physiotherapy for another hour and thence observations for an hour. The complainant was treated through a newly developed machine and technology and was not required to stay in the Hospital/health care centre.
The complainant no.2’s stay at the Centre was three hours every day (except on the first day of treatment - when he was admitted for eight hours for blood investigation, treatment, rehabilitation exercise, pain management and observation). This treatment was done under the supervision of Wing Comdr. (Dr) V. G. Vasishta, a well renowned doctor in the field of treatment for osteoarthritis.
This treatment for osteoarthritis through SPMF has been proven to have decreased pain among osteoarthritis patients, being without use of any pain killer/drug and without any side-effect. Moreover, both the knees were treated simultaneously and it is much cheaper than new replacement. It increases mobility, improves power and stability of the knee joints while halting the progress of the disease. It does not have effect on co-morbidities and patient can carry on normal activity during the treatment. [the paragraphs 11 to 14 of complaint enumerate the data/study as to prevalence of this type of ailment in 22% to 39% among the people, the number of patients treated in the said Hospital and the high successful rate of the treatment, however, the same does not require lengthy detail to be mentioned].
On completion of the treatment on 07.08.2018, the complainant no.2 was advised certain specified diet and exercise for next three months in the treatment summary issued by Dr. V.G. Vasishta.
2.4 After the treatment, the complainants filed claim of paid amount of Rs.1,30,716/- on 08.09.2018 with the TPA and they furnished all documents including receipts and letters from the Health Care Centre. They did not release the claim for very longtime, the complainants had to visit, time and again, to the office of OP and to spoke to the officers of OP on telephone. But there was no result. After about two month of making claim, the complainants received letter dated 05.11.2018 from the OP of declining the claim on the ground that the treatment was experimental, the claim was not covered and it was repudiated. It shocked them. Thence, the complainants tried to demonstrate from the number of decided cases/verdicts of the Consumer Commission including NCDRC, wherein the insurance companies were directed to settle the claim alike the case of complainants, however, the OP did not pay heed. The OP was supposed to settle the claim within reasonable time. There was no justifiable cause on the part of OP to decline the claim, which caused harassment to the complainant. That is why this complaint for amount of Rs.1,30,716/-, interest of 18%pa, compensation of Rs.50,000/- and costs of Rs.30,000/-. The complaint is supported with affidavits of the complainants.
2.5. The complaint is accompanied with copies of – insurance policy schedule, consultation certificate dated 18.07.2018, medical investigation/tests reports, brochure of SPMF Health Centre, treatment summary, claim application, claim declining letter dated 05.11.2018 and case law.
3.1 (Case of OP)– The OP does not dispute the facts mentioned in paragraph 2.1 on the ground that these are matter of record. However, all other allegations are denied by the OP, including that the treatment undergone by the complainant is not recognized nor the said Health Centre is registered.
3.2.The complaint is without cause of action and complainants failed to comply the terms and conditions inclusive of they failed to inform the OP within seven days of hospitalization of complainant no.2 or 30 days from the discharge from the Hospital. As per documents submitted by the complainants, the complainant no.2 is aged about 82 years, he was diagnosed with osteoarthritis of both knees, he took treatment of SPMF therapy followed by physiotherapy, which is in fact an experimental treatment modality and the same is not covered under the policy as per clause 15 of the policy, which says “ that expenses for naturopathy, unproven experimental treatment, alternative treatment, acupuncture, acupressure, magnet-therapy and similar treatment are not payable. The claim of the complainants has been repudiated as per clause 4.15”.
The insurance policy is containing terms and conditions, it is a contract between the parties and both the parties have to follow them strictly, any violation in respect of thereof deserves the complaint to be dismissed. There is no hospitalization of complainant no.2 and he was treated as OPD patient. It does not cull out any deficiency of services but the claim was rejected in violation of terms and conditions of policy. The complaint is liable to be dismissed.
3.3. The written statement is not supported by any document.
4.1 (Replication of complainant) –The complainant files the rejoinder to answer the allegations of written statement that the treatment undergone and the Health Centre by the complainant no.2 are recognized, it is well known treatment/therapy for osteoarthritis. The SPMF is the latest technology in treating osteoarthritis, it is widely accepted all over the world. Moreover, SPMF therapy is non-surgical treatment to help regenerate cartilage and restore the mobility of arthritic knee-joints. There was no terms and conditions that complainant had to file claim within the time periods as stated by the OP or the treatment was not covered since the no terms and conditions were provided to the complainant. There is cause of action in favour of complainants; the complainant no.2 has undergone regular treatment of 21 days consecutively as already stated. The complainants deserve appropriate relief.
5.1. (Evidence)-In order to establish the complaint, the complainant no.2 Sh. Sunder Singh Khurana filed his affidavit of evidence fortified with documents filed with the complaint.
5.2. On the other side, OP also led its evidence by filing affidavit of Ms. Karishma Negi, Administrative Officer/AR of the OP. The OP had not filed any document with the written statement but repudiation letter dated 05.11.2018 and a booklet under the title National Medi-claim Policy containing terms and conditions (bilingual) is filed, without seeking any permission from the Commission.
6. (Final hearing)-The parties were given opportunity to file written submission;, both the sides filed their written arguments, followed by oral submissions by Sh. S. K. Pandey, Advocate for OP. There were no oral submissions on behalf of complainant but fresh submissions were filed, being blend of pleading and evidence, alike earlier written submissions.
7.1 (Findings)-The case of both the sides, their pleadings, evidence inclusive of documentary record, written arguments and case law are considered. Further, the complainant relies upon the following cases:-
(a) Somnath Gupta Vs. United India Insurance Co. Ltd. (case no. GIC/271/UII/II/07 order dated 09.03.2007 by Hon’ble Ombudsman Chandigarh, wherein the claim was considered and allowed in respect of knee treatment given in M/s Sibia Medical Centre on the basis of latest technology for treatment of arthritis, etc which was approved by Govt. of Punjab.
(b) Order date 23.02.2015 by Hon’ble NCDRC New Delhi in petition no. 2362/2014 when the order of District Commission was confirmed regarding treatment given for osteoarthritis of both knee under SPMF therapy and the treatment was given in SBF Health and Research Centre, when affected joints were treated in the AKTIS TM machine for one hour followed by physiotherapy and observation.
(c) The complainant has also relied upon Mrs.Vidya Vishnu Kamble Vs. New India Insurance Co. Ltd & anr CC. No. 15/29 Mumbai, however, the citation filed is illegible to cull out matrix of the case but in the reasons of order, the complainant has taken the treatment as SBF Health and Research Centre, and she was discharged, in conclusion the complaint was allowed, while decline the plea of insurer.
(d) Indira C. Patel Vs. the Divisional Manager, United India Insurance Co. Ltd. CA. No. SMP/MUM/208/2008 dod 13.10.2009, Mumbai wherein technique of RFQMR was followed in respect of for both knees, which was diagnosed to be osteoarthritis. It was also allowed (by referring the cases (a)) above.
7.2.1 There is dispute of providing or explaining of terms and conditions of the policy. The complainants asserts that they were not furnished or stated terms and conditions of policy except the policy detail/ schedule filed with the complaint. On the other side, the OP contends that the complainant was provided with the terms and conditions of the policy, however, it was not complied with.
7.2.2 By considering the stand of complainant and also the plea of OP, the record is perused. The complainant has filed a single policy schedule showing the profile of complainant no.1, the dependents/insurers detail inclusive of voluntary parental policy detail, showing the name of complainant no.2 also besides sum insured and premium paid. No the terms and conditions have been provided to the complainants with the policy schedule. There is no evidence by and on behalf of OP as to when terms and conditions were stated or furnished or explained to the complainant no.1 or to complainant no.2. The law is that insurer/OP is required to furnished the proposal form and the policy document inclusive of terms and conditions to the insured/complainants. Moreover, there is also precedent on these issues by 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) 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".
(iii) Jacob Punnen and anrVs United India Insurance Co Ltd (Civil Appeal no.6778/2013 dod 09.12.2022 SC), the precedent Biman Krishna Bose case (supra) 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.
Hence, it is held that the circumstances are establishing that complainants were not provided with the terms and conditions of the policy and there is no proof by the OP as to why and in what manner the policy terms and conditions were provided to the complainants. It is also not out of context to mention that the OP in its written statement mentions filing of terms and conditions but no terms and conditions were annexed with the written statement. Subsequently, at the stage of evidence, the prospectus-the terms and conditions (a booklet) were annexed with the affidavit of evidence but without permission of the Commission. This was not fair on the part of OP. It is not certain whether these terms and conditions in the booklet/prospectus were the actual terms and conditions of the policy entered between the parties?. Accordingly, this objection of the OP stand disposed off against the OP.
7.3 So far other issues are concerned, it is held that the complainants have proved the complaint for the following reasons:-
(i) The complainant has proved the prescriptions, the treatment undergone after material tests and investigations for consecutive 21 days. The complainant has also proved medical bills and expenses of Rs. 1,30,716/-.
(ii) The OP has invoked exclusion clause 4.15 to repudiate the claim as if the alternative treatment or experimental treatment are not covered under the policy. Whereas, the OP failed to proved the terms and conditions of policy which were actually entered when the insurance policy taken and the prospectus-terms and conditions proved are a general form.
(iii) The OP has reproduced the entire exclusion clause 4.15 from the general prospectus as if it excludes experimental and alternative treatment acupressure, acupuncture, magneto therapy and so on. Whereas, whether this exclusion was there in the terms and conditions of the policy which was actually issued to the complainants have not been proved. Otherwise, the complainants have proved decisions by Hon’ble Consumer Commissions (already referred in paragraph 7.1 above) that the treatment being rendered under SPMF therapy for both the knee-joints together being non-surgical treatment that too without pain are covered under the objective of the policy. The cases at serial number (b) and (c) pertains to same SBF Health and Research Centre, where the complainant had undergone treatment.
(iv) There is innovations of the technology in all sphere of life. The medical sciences and its branches are advanced with the technology. To put in simple words, the advancement in technology means speed, accuracy in process. The complainant no.2 for the one reason or the other was not to undergo scissor surgery, it is his choice of life and liberty. Simultaneously, the complainant no.2 was not knowing that there is exclusion clause 4.15 in the policy for want of providing them terms and conditions of the policy; had it been made aware to the complainants, the things would have been different including of choice to explore policy for appropriate options.
(v) The OP also took objections in the written statement that it was not informed of admissions or discharge in particular period. Whereas, this was not mentioned as ground of repudiation in the said letter. It is settled law that OP cannot go beyond reasons given in the repudiation letter but OP exceeded its plea in the written statement, which was not expected from a professional institution of service provider. This plea of OP does not stand.
In view of (i) to (v) above, as well as the conclusion drawn in paragraph 7.2 above, the complainants have succeeded in establishing the circumstances to prove the complainant. They are held entitled for reimbursement of medical expenses of Rs. 1,30,716/- for treatment of complainant no.2. This amount of expenses are within the sum insured of Rs. 5 lakh.
7.4 The complainants also claim interest @ 18% pa. Since the complainants had parted with money from their pockets for bills for treatment of complainant no.2 and it also remained unpaid for want of settlement of claim in his favour. But there is no agreed rate of interest between the parties. It is appropriate to award reasonable interest, therefore, interest @ 6% per annum is allowed from the date of complaint till realisation of amount in favour of complaint and against OP.
7.5 The complainants claim compensation of Rs. 50,000/- on account of harassment and mental agony. It is apparent that OP has not settled the valid claims within the normal course under the policy, instead repudiated on the ground, which was never told and revealed to policy holder nor agreed so. In addition, the OP has also taken another objection in the written statement, which is alien of repudiation letter. This shows intentions of OP that in order to avoid legal obligation. The circumstances are speaking themselves that how it caused harassment and agony to complainants; these aspects are suggesting that complainants deserve compensation. The compensation ought to be consonance with the situation in lieu of harassment, un-certainty, inconvenience, agony. Therefore, compensation of Rs.20,000/-appearing to be reasonable to situation, it is allowed in favour of complainants and against OP.
7.6 The complainants also claim cost of Rs.30,000/- besides other relief. Since, complainants have to file the complaint for reimbursement valid medical claim after exhausting all efforts, had it been processed, settled and paid, they need not to file complaint. Hence, costs of Rs.10,000/- is allowed in favour of complaint and against OP to the situation of this case.
8. Accordingly, the complaint is allowed in favour of complainants and against the OP to reimburse medical bills/expenses amount of Rs.1,30,716/- with simple interest @ 6%pa from the date of complaint till realization of amount, compensation of Rs.20,000/- and costs of Rs.10,000/- to complainants. 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 8% per annum on amount of Rs.1,30,716/-. The OP may deposit the amount in the Registry of this Commission by way of valid instrument in the name of either of the complainants.
9. Announced on this 20th day of September 2024 [भाद्र 29, 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.
[ijs-118]
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