Complainant through Lrd. Adv. Smt. Nishchala Joshi
Opponent No. 1 through Lrd. Adv. Sanjay Gaikwad
Opponent No. 2 absent
Opponent No. 3 through Lrd. Adv. Irani
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(23/04/2014)
This complaint is filed by the consumer against Insurance Company and Ruby Hall Clinic for deficiency in service under section 12 of the Consumer Protection Act, 198. The brief facts are as follows,
1] The complainant no. 1 and 2 are husband and wife. They are resident of Mira Society, Salisbury Park, Pune – 37. The opponent no.1 is Insurance Company. Opponent no. 2 is M/S Medi Assist and the opponent no. 3 is a Ruby Hall Clinic. It is the case of the complainants that they have obtained insurance policy from the opponent no. 1 as regards their illness for the period of 22/01/2007 to 21/01/2008 for Rs. 1,00,000/-. The complainant no. 1 is 58 years old lady. She was suffering from various problems; hence she was admitted in Ruby Hall Clinic in the months of May 2007. Various doctors of Ruby Hall treated her and directed her to undergo various tests, for which she had spent huge amount. She had filed cashless hospitalization claim for Rs. 28,000/-. But the opponent no. 2 had sanctioned an amount of Rs. 22,150/- only. On 4/9/2007, the opponent no. 3 had issued final bill of Rs. 1,37,944/-. However, there was no recovery or any positive cure effected on the complainant no.1. The opponent no. 1 had failed to reimburse an amount of Rs.1,18,457/-. The opponent no. 3 had asked her for taking various tests and given treatment and there was no improvement in her condition. She was admitted to Poona Hospital. There again she had under gone various tests. It was established that she had suffered kidney problem due to infection and it was not related with diabetes. The opponent no. 3 had treated her as regards kidney problem, which was related with the diabetes. It is the case of the complainant that it is the deficiency in service. Hence, she had asked reimbursement of Rs. 1,15,794/-, as regards final bill given by the opponent no. 3, Rs.6,780/- as regards treatment from Dr. Kazi, Rs.31,670/- as regards treatment taken by her from Poona Hospital, other related expenses of Rs.10,000/-, compensation for suffering trauma and pains to the tune of Rs.3,00,000/-, Rs. 25,000/- as cost of the proceeding.
2] The opponents have resisted the claim by filing separate written versions. It is the case of the opponent no. 3 i.e. Ruby Hall Clinic that there was no deficiency in service at the hands of doctors and staff members of the Ruby Hall Clinic. The complainant no. 1 had recovered from the disease by taking treatment at Ruby Hall Clinic. She was properly treated; hence no claim is established against them. According to the Insurance Company, the present complaint is suffering from mis-joinder of necessary party, as the complainant had claimed relief from the Insurance Company for repudiation of the claim and also claimed compensation from the hospital on the ground of deficiency in service. These two factors are distinct and these can not be clubbed together, hence the present complaint is not maintainable. As regards Insurance Company there is no dispute between the complainants and the opponent no. 1. The opponent no.1 had prayed for dismissal of the complaint.
3] Considering the pleading of both the parties, scrutinizing the documents and hearing argument of both the counsels, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has established that there was deficiency in service at the hands of the opponent no. 3 i.e. Ruby Hall Clinic? | In the negative. |
2. | Whether complainant has established that the Insurance Company has caused deficiency in service by wrongly repudiating the mediclaim of the complainants? | In the affirmative. |
3. | Whether opponent no. 1 has proved that there is mis-joinder of cause of action? | In the negative. |
4. | What order? | Complaint is partly allowed against opponent no. 1 and 2. |
REASONS :-
4] The undisputed facts in the present proceeding are that the complainant no. 1 took medical treatment for kidney disease in Ruby Hall Clinic as well as in Poona Hospital. It is not in much dispute that the complainant no. 1 and 2 have obtained joint policy from the Insurance Company, as regards their health. According to the opponent no. 3, the health of the complainant no. 1 recovered after taking medical treatment in Ruby Hall Clinic. In order to establish this fact, the opponent no. 3 had brought on record the treatment given to the complainant during the said period. It reveals from the record that the complainant had undergone various pathological tests. It is not the case of the complainant that her health was deteriorated due to treatment given in the Ruby Hall Clinic. It is the case of the complainant that, doctors at Ruby Hall gave her treatment for kidney disease, which was relating with the diabetes. But when she was admitted in Poona Hospital, it was disclosed that she was suffering from urinary infection. Doctors of Ruby Hall Clinic gave wrong treatment and that amounts to deficiency in service. It reveals from the record that whenever the complainant no.1 was admitted in the Ruby Hall Clinic, her health was improved and she has not established that her health was deteriorated due to treatment given in the Ruby Hall Clinic. It is the settled principle of law that, even error in judgment or diagnosis does not amounts to deficiency in service. The complainant had not adduced any evidence of expert in order to establish that the treatment given by Ruby Hall Clinic was wrong treatment and there was medical negligence on the part of Ruby Hall Clinic. In such circumstances, this Forum is of the opinion that the complainant has failed to establish cause of action against the opponent no. 3.
5] The learned Advocate for the insurance company argued that the complainant had clubbed two distinct causes of action in the
present proceeding. In such circumstances, this complaint is not maintainable and it should be returned to the complainant. This Forum has already observed that the complainant has failed to establish cause of action against the opponent no. 3 i.e. Ruby Hall Clinic, hence it can not be said that two causes of action clubbed together. Undisputedly, the insurance company agreed for the reimbursement of the medical bill of complainants during the policy period. There is no sufficient reason established by the insurance company for repudiating the insurance claim of the complainant. Hence, this Forum held that, that amounts to deficiency in service. The learned Advocate for the opponent no. 1 has argued that, if the complaint is filed against manufacturing company as well as insurance company, that amounts to mis-joinder of cause of action. Hence, complaint should be reassess separately. The learned Advocate for the opponent strongly relied upon the Ruling of “Dr.Brajo Banerjee V/S TELCO and Others” reported in II (2002) CPJ 267 Maharashtra. It has been observed in the said ruling, if complaint is filed against the manufacturing company and insurance company for manufacturing defect and for deficiency in service, that amounts to mis-joinder of cause of action. Hence, it is necessary to reassess the evidence separately. Facts in the present proceeding and that of Ruling cited by the learned Advocate, are totally different. In the present proceeding, it has been held that the complainant has failed to establish deficiency in service against the hospital, hence it
can not be said that there is clubbing two separate causes of action. In these circumstances, it is not necessary to direct the complainant to file two separate complaints, one against the Insurance Company and another against the hospital. Hence, this Forum held that the complainant has established deficiency in service against the opponent no. 1 and 2, who had wrongly repudiated insurance claim of the complainant. The complainant has also established that the Insurance Company had partly made payment of reimbursement i.e. to the extent of Rs. 22,150/-. This also indicates that there is no sufficient reason for repudiation of the insurance claim. Hence, the Forum held that the complainants are entitled for reimbursement of Rs.1,47,464/-. The complainants are also entitled for compensation on the ground of physical and mental suffering to the tune of Rs.10,000/- and cost of the proceeding to the tune of Rs. 5,000/-. In the result this Forum answers the points accordingly and pass the following order.
** O R D E R **
1. The complaint is partly allowed against
the opponent no. 1 and 2.
2. It is hereby declared that the opponent
no. 1 and 2 have caused deficiency in
service by wrongly repudiating the
mediclaim of the complainants.
3. The opponent no. 1 and 2 are directed to
pay jointly and severally an amount of Rs.
1,47,464/-/- (Rs. One Lac Forty Seven
Thousand Four Hundred and Sixty Four
only), an amount of Rs. 10,000/- (Rs.Ten
Thousand only) towards compensation
for mental and physical sufferings and
Rs. 5,000/- towards cost of the litigation,
i.e. total amount of Rs.1,62,464/- (Rs.One
Lac Sixty Two Thousand Four Hundred
and Sixty Four only) to the complainant
within six weeks from the date of receipt
of copy of this order.
4. Complaint stands dismissed against
The Opponent no. 3.
5. Copies of this order be furnished to
the parties free of cost.
6. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 23/04/2014
