DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.578/2008
1. Smt. Raminder Kaur Bhasin
W/o Late Sh. Balbir Singh Bhasin
R/o 767, 1st Floor, Dr. Mukherjee Nagar,
Delhi
2. Mrs. Tarveen Kaur
W/o Sh. Satinder Singh
D/o Sh. Balbir Singh Bhasin
R/o 825, Mukherjee Nagar,
Delhi
3. Smt. Jasmeet Kaur
W/o Sh. Gulinder Kaur
D/o Sh. Balbir Singh Bhasin
R/o 880, Hargobind Enclave,
New Delhi ……Complainants
Versus
1. National Insurance Company
DRO-II, 2 E/O, Jhandewalan Extension
New Delhi-110055
2. National Insurance Company
E-13, Hauz Khas, New Delhi …Opposite Parties
Date of Institution : 08.09.08 Date of Order : 29.12.15
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Initially, the complaint was filed before the District Forum, Kashmere Gate, Delhi and the same was returned to the Complainants on 16.05.08 on the ground of territorial jurisdiction. They filed the instant complaint before this Forum on 08.09.08.
Briefly stated, the facts of the present case are that Sh. Balbir Singh Bhasin, deceased husband of Complainant No.1 and father of Complainant No.2 & 3 had taken a mediclaim policy from OPs on 23.03.2006 commencing from 29.03.2006 to 28.03.2007 vide policy No.360902/48/05/8500001653 for hospitalization and domiciliary hospitalization benefits for a sum of Rs.2,50,000/- for self and for his wife. Shri Balbir Singh Bhasin was admitted in Rasheed Hospital, New Garden Town, Lahore on 30.06.2006 for renal transplantation and he was discharged on 14.07.2006. He was admitted in Sir Ganga Ram Hospital on 24.08.2006 for diabetic mellitus, diabetic nephropathy and was discharged on 31.08.2006. During the period of admission in Sir Ganga Ram Hospital, he incurred expenses of Rs.1,48,548/-. He submitted the bill for payment to OPs but he was directed to lodge a claim for Rs.1,48,548/- with Genins India Ltd. He sent the documents to the Manager (Operations) enclosing original discharge summary of admission of Sir Ganga Ram Hospital dated 02.05.06. The Genins India Ltd. asked for a detailed opinion from the Doctors of Sir Ganga Ram Hospital regarding the insurance claim of Sh. Balbir Singh Bhasin and Sir Ganga Ram Hospital, Department of Nephrology sent a detailed letter dated 01.02.2007 signed by Dr. Dinesh Khullar giving the detailed opinion about the patient. Sh. Balbir Singh Bhasin was admitted in Sir Ganga Ram Hospital again on 06.02.2007 for treatment and could not recover from the illness and died on 15.02.2007. During this period, complainants paid a sum of Rs.85,369/- to the hospital and submitted the bill to the OPs company for the payment alongwith the payment of pending bill amounting to Rs.1,48,548/- but Genins India Ltd. sent a letter to the OP dated 25.03.2007 to the effect that Sh. Balbir Singh Bhasin had undergone the transplantation in Pakistan and as per the Transplantation of Human Organ Act, 1994, the claim should not be entertained as transplantation was not done in India. On the basis of opinion of Genins India Ltd, OPs repudiated the claim vide letter dated 28.03.2007 as according to the OPs the claim was inadmissible as per terms and conditions of the Mediclaim Policy. Complainants sent legal notice dated 13.02.2008 to the OPs to make the payment of the bills and to pay Rs.50,000/- as damages on account of pain and suffering for not making the payment. OPs sent a letter dated 15.02.2008 informing them that they were taking the matter with their operating office but no intimation has been received from the OPs. Hence, pleading deficiency in service on the part of OPs the Complainants have prayed as under:-
- Direct the OPs to make the payment of Rs.2,33,916/- alongwith interest @ 18% per annum to the Complainants.
- Direct the OPs to pay to the Complainant a sum of Rs.50,000/- towards pain, suffering and harassment undergone by the Complainants.
- Costs of proceedings.
In the written statement, OPs have contended that at the time of submitting application for obtaining the insurance policy the Complainants had intentionally suppressed the fact regarding the pre-existing disease/problems related to the health. It is stated as hereunder:
“It is further submitted that Mr. Balbir Singh is known case of diabetes and hypertension and END STAGE RENAL DISEASE, prior to this admission he was admitted in Sir Ganga Ram Hospital as per the documents submitted in May, 2006 for his cardiac evaluation, on workup he was found to have triple vessel disease along with advanced Renal disease than he was told about the need of the renal replacement therapy.”
Mr. Balbir Singh had undergone unrelated kidney transplantation in Lahore and not in India. He was admitted for infection and graft dysfunction as per the certificate issued by Dr. Dinesh Khullar, the renowned Nephrologists of Ganga Ram Hospital. Sh. Balbir Singh could have undergone for unrelated kidney transplantation in India as per the Transplantation of Human Organ Act, 1994 but Mr. Singh had undergone the transplantation in Lahore, Pakistan “where is no such act and one can undergo unrelated organ transplantation”. It is denied that the operation was successful and he was fit for travel and that the patient had no renal disease. The deceased was again admitted in Ganga Ram Hospital but died on 15.02.2007 only due to the running infection which was caused due to the unrelated kidney transplantation in Pakistan. The claim was rightly rejected by OPs as Complainants had not complied with the existing laws related to the kidney transplantation in India. It is stated that there is no deficiency in service committed by the OPs. OPs have prayed for dismissal of the complaint.
Complainants have filed rejoinder to the written statement of OPs. It is submitted that since there was no donor available in the family his kidney transplantation could not be done at Sir Ganga Ram Hospital, Delhi. Therefore he underwent KIDNEY TRANSPLANTATION IN LAHORE. However, it is denied that after the operation he was admitted for infection and graft dysfunction as per the certificate issued by Dr. Dinesh Khullar, renowned Nephrologist of Sir Ganga Ram Hospital. It is submitted that the renal transplantation was very costly in India and Sh. Balbir Singh was able to get a cheap transplantation and, therefore, he opted for transplantation in Lahore. It is further submitted that in the policy issued by the OPs there is no bar of getting the transplantation done from anywhere in the world.
Complainant No.1 has filed her affidavit in evidence. On the other hand, affidavit of Sh. Surender Bargota, Administrative Officer has been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the parties. We have heard the arguments of the Counsel for parties and have also gone through the record very carefully.
The main contention raised on behalf of the OPs is that the deceased late Sh. Balbir Singh Bhasin had undergone kidney transplantation in Lahore, Pakistan and thus violated the provisions of the Transplantation Human Organ & Tissues Act, 1994 (in short, the Act). The said contention has been opposed on behalf of the complainants. We have very carefully gone through the provisions of the said Act and also the rules framed there under. The said Act is applicable in India. Nowhere in the said Act it has been provided that a citizen of India cannot get his/her kidney transplanted from outside India. Therefore, without burdening the order with more discussion we straightway hold that the provisions of the said Act and the rules framed there under are not applicable to the facts of the present case.
Secondly, the present complaint has not been filed with regard to expenses incurred by the deceased and/or his family members towards the expenses incurred on the transplantation of kidney of the deceased in Lahore, Pakistan. The complaint has been filed with regard to the treatment of the deceased received by him from Sir Ganga Ram Hospital after the transplantation of the kidney. However, in this connection the contention raised on behalf of the OPs is that the complainant had died due to infection caused to him by unrelated kidney transplantation in Lahore, Pakistan and hence, he is not entitled to relief.
In this regard, a letter dated 1.2.2007 written by Dr. Dinesh Kullar, Department of Nephrology, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi to the Manager (Operations), Genins India Ltd. is relevant. Copy of the said letter is Annex. P/10. This is in respect to the medical treatment provided to the deceased in the said hospital. The relevant portion of the said letter reads as under:
“This is pertaining to his discharges summaries from Sir Ganga Ram Hospital dated 3/5/2006 and subsequently on 17th August, 2006. It may be noted that Mr. Balbir Singh was initially admitted at Sir Ganga Ram under department of cardiology with coronary artery disease, angina for which coronary angiography was done which had revealed triple vessel disease. During his stay in the hospital his serum creatinine was found to be 5.7 mg% and then 4.8 mg% on different occasions. He had denied history of diabetes mellitus. However, his blood sugar at that time was 151 mg%. He may have been having undetected diabetes leading to diabetic nephropathy about which pt. was not aware. I had seen him for the first time at this point of time and had opined that he was having acute on chronic renal failure while there was no convincing evidence of diabetes or diabetes nephropathy. His renal function worsened in due course of time and he underwent pre-emptive (he never received dialysis) kidney transplantation at Lahore. He was admitted again at Sir Ganga Ram Hospital, this time in Department of Nephrology on 5th August 2006 as a post kidney transplant case with graft site infection and CMV disease.
This time he was found to be having hyperglycemia. It was difficult to qualify whether this hyperglycemia was because of post transplantation medication including steroids and cyclosporine or was it a recurrence of hyperglycemia following normalized renal function. He was labeled as diabetic nephropathy only because his first blood sugar report when he was first admitted under cardiology department was 151 mg%. However it may be stated in the favour of the patient that he was not aware of his being diabetic and hence no question of diabetic nephropathy. It is well documented that in type 2 Diabetes mellitus, diabetes may get detected only after target again damage including advanced renal failure has already taken place. Retrospectively he may not have been a case of diabetic nephropathy and basic disease could well have been chronic interstitial nephritis about which he was not aware in which case his post transplant hyperglycemic status may have been due to post transplant diabetes mellitus related to immunosuppressive medication.”
This letter is too clear to clarify. Copy of the discharge summary dated 31.8.2006 and also copy of bill dated 15.2.2007 of Balbir Singh Bhasin issued by Sir Ganga Ram Hospital are Annx. P-5 & P-11 respectively. He had incurred the amount claimed in the complaint on his treatment. His claim had been rejected by Genins India Ltd. vide letter dated 25.3.2007 (Copy Annex. P/12). It was rejected on the main ground that the provisions of the Transplantation of Human Organs Act, 1994 had been breached. We have already held that the said Act and rules framed there under are not applicable. Therefore, we do not feel any hesitation in holding that OPs through Genins India Ltd. had repudiated the claim in question on a very lame and non-existing excuse and thus committed serious deficiency in service.
In view of the above discussion, we allow the complaint and direct the OPs to pay Rs. 2,33,916/- alongwith interest @ 7% per annum from the date of filing of this complaint till the date of realization, Rs.50,000/- towards pain and suffering and Rs. 15,000/- towards cost of litigations to the complainants within 30 days of receipt of copy of this order.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 29.12.15.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
29.12.2015
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OPs are directed to the OPs to pay Rs. 2,33,916/- alongwith interest @ 7% per annum from the date of filing of this complaint till the date of realization, Rs.50,000/- towards pain and suffering and Rs. 15,000/- towards cost of litigations to the complainants within 30 days of receipt of copy of this order. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
