PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service and unfair trade practice adopted by the Opposite Parties in providing service to the Complainant as they did not settle the legitimate insurance claim of the Complainant as alleged by the Complainant.
2) The facts of this case as stated by the Complainant are that, he has obtained from the Opposite Party No.1 a Mediclaim Policy for himself and for his family bearing Policy No.111300/48/05/79579. The sum assured for the year was Rs.3 Lacs and it was valid from 01/12/05 to 30/11/06. The mediclaim policy was first incepted on 01/12/97 and the same was renewed year after year regularly.
3) The Complainant further stated that he was diagnosed for C.A. Prostate (Carcinoma Prostatic) on 26/05/03 and then he was admitted in Jaslok Hospital on 04/06/03 till 08/06/03. Dr. Percy Jal Chibbar treated the Complainant and advised the treatment of radiotherapy and Zoladex, which is an Harmonal treatment. Thereafter Zoladex was to be given every time under local anesthesia every month. The treatment was started from 08/06/03 (date of discharge) and thereafter continued for nearly 15 months till October, 04. The Complainant had submitted claims for the reimbursement of the expenses incurred on this treatment regularly and the same expenses were reimbursed by the Opposite Party No.1 through Opposite Party No.2. Thus, the claims of the Complainant during this period i.e. till October, 04 were covered by the policy period 01/12/02 till 30/11/03 and from 01/12/03 to 30/11/04. Thereafter, Opposite Party No.1 again renewed the policy from 01/12/04 to 30/11/05 and thereafter from 01/12/05 to 30/11/06.
4) Thereafter, the treating Doctor increased the dose of Zoladex from 3.6 mg. per month to 10.08 mg. per quarterly with effect from November, 04. The Complainant regularly submitted the claim to Opposite Party. These claims were also settled till November, 2005. Every year the policy was renewed with the same terms and conditions.
5) The Complainant then filed the calim of Rs.21,467/- for the quarter of Nov.,05 to Jan., 06 (Claim No.531780506) with Opposite Party No.2 on 14/02/06 in a routine manner as was being done before. However, the Opposite Party No.2, vide its letter dtd.30/03/06 informed the Complainant that the claim was not payable under clause 3.2 of the policy.
Clause 3.2 of the Insurance Policy is “Post Hospitalization” “Relevant medical expenses incurred upto 60 days after hospitalization on disease/illness/injury sustained will be considered as part of claim as mentioned under item 1.0 above.”
6) On receipt of the above said repudiation of the claim the Complainant replied vide his letter dtd.05/04/06 and requested the Opposite Party No.2 to reconsider his insurance claim. Again Opposite Party No.2 replied to the Complainant that the administration (treatment) of Zoladex is not a drug related to chemotherapy.
7) Thereafter, the Complainant has stated that, he again submitted one more claim of Rs.21,585/- for the period Feb., 2005 to April, 2005 on 06/06/06. The same was also rejected vide Opposite Party’s letter dtd.17/06/06 on the same ground. Thereafter, the Complainant also approached the Insurance Ombudsman but to no purpose. The Complainant also submitted the treating Doctor’s certificate and extract of Medical Journals supporting the contention of the Complainant that the treatment of Zoladex is part of treatment of C.A. Prostrate, but in vain.
8) The Complainant has pointed out the provision of clause 2.4 Note of the policy that “When treatment such as dialysis, chemotherapy, radiotherapy, etc. is taken in hospital and the insured is discharged on the same day the treatment will be considered to be taken under hospitalization benefit section” (Hospitalization benefit).
9) The Complainant has also pointed out the provision of clause ‘3’ of the policy regarding ‘Any one Illness’ Any one illness will be deemed to mean continuous period of illness and it includes relapse within 45 days from the date of last consultation with the hospital where treatment may have been taken. Occurrence of the same illness after lapse of 45 days as stated above will be considered as fresh illness for the purpose of this policy.” The Complainant has submitted that, he was suffering from C.A. Prostate continuously and as such it was any one illness as per clause ‘3’ above and the treatment for continuous period of illness including hospitalization benefit is covered under the policy.
10) The Complainant has further averred that, he was suffering from C.A. Prostate continuously from June, 2003 till April, 2006 when last disputed claim was submitted to the Opposite Parties. Each treatment of chemotherapy, radiotherapy including Zoladex is an independent hospitalization required for the treatment of the above said illness. Administrating Zoladex was being done under anesthesia at the hospital. This is covered under Note of Clause 2.4 allowing one day hospitalization for chemotherapy radiotherapy, etc. Therefore, it was submitted by the Complainant that Zoladex treatment is an integral part of C.A. Prostate treatment and it is not expressly excluded under the clause 4 of the policy.
11) It is also specifically pointed out by the Complainant that the Opposite Parties had allowed the prior similar claims till 2005 for the same treatment including quarterly administration of Zoladex till November, 05. Therefore, rejecting the claim of the Opposite Party after November, 05 is the deficiency in service on the part of Opposite Parties as well as they adopted unfair trade practice.
12) The Complainant has finally prayed that a) the Opposite Parties be directed to pay to the Complainant a sum of Rs.43,052/- being the sum of his mediclaim for hospitalization. b) The Opposite Parties also be directed to pay Rs.1 Lac compensation towards mental agony, trauma & inconvenience caused to the Complainant due to the deficiency in service and unfair trade practice as mentioned above. c) The Opposite Parties also be directed to pay the cost of this complaint.
13) The Complainant has attached the xerox copies of the following documents in support of his complaint -
a) Policy No.111300/48/05/79579, valid from 01/12/05 to 30/11/06 alongwith terms and conditions.
b) Discharge card dtd.04/06/03 to 08/06/03.
c) Letters dtd.30/03/06 and 05/04/06.
d) Letters dtd.08/05/06, 20/06/06, 13/06/06 & 15/06/06.
e) Letters dtd.06/06/06, 17/06/06, 30/08/06 & 11/08/06.
f) Letters dtd.11/09/06, 13/09/06.
g) Letters dtd.18/09/06, 25/09/06, 28/09/06 & 09/11/06.
h) Letters dtd.27/11/06 and 25/05/07.
i) Letter dtd.13/07/2007.
J) Doctor Percy Jal Chibber’s certificates dtd.19/04/06, 26/07/06 & 20/11/06.
k) Claim Form having no date.
l) Literature.
m) Ombudsman papers.
14) The complaint was admitted and notices were served on the Opposite Parties. Opposite Party No.2 did not appear before this Forum despite of service of notice on it. Therefore, an ex-parte order was passed against Opposite Party No.2. Opposite Party No.1 has filed its written statement wherein it denied the allegations of deficiency in service and unfair trade practice adopted by it. However, it has admitted that the Complainant has obtained the mediclaim policy from Opposite Party No.1 since 1997 and during 2003, the Complainant was suffering from C.A. Prostate disease for which he was hospitalized in Jaslok Hospital for radiotherapy & Zoladex treatment. It was also admitted that the Complainant has continued the treatment of Zoladex for 2-3 years and for that treatment, the claim of the Complainant were paid by Opposite Party No.1. However, Opposite Party No.2 rejected the further claim of Feb., 2006 and June, 2006 for Rs.21,467/- and Rs.21,585/- respectively because of violation of condition 3.2 of the mediclaim policy. The Opposite Party No.1 has further submitted that, the Complainant had confirmed that no radiotherapy treatment was given alongwith injection (Zoladex) for which the Complainant has claimed the insurance.
15) The Opposite Party No.1 has further clarified that the previous claims of the Complainant were settled as per the policy conditions i.e. expenses of treatment of chemotherapy, radiotherapy, etc. However, administration of injection Zoladex was not part of Chemotherapy. It was only follow up treatment without hospitalization and hence, the claim of the Complainant was rejected. So the administration of Zoladex was an hormonal treatment and hence, it did not fall within the period of 60 days of the hospitalization of the Complainant and hence, the claim was rejected under clause 3.2 of the mediclaim insurance policy.
16) It is further clarified by the Opposite Party No.1 that when the Complainant used to take the injection Zoladex alongwith radiotherapy, every month, the claim was paid. But only when the injection Zoladex was taken quarterly beyond the period of 60 days of hospitalization the claim was rightly rejected by it and hence, there is no deficiency of whatever nature in the service of the Opposite Parties. Finally the Opposite Party No.1 has prayed for dismissal of the complaint.
17) Thereafter, the Complainant filed his affidavit of evidence wherein he reiterated the facts mentioned in the complaint. Thereafter, the Opposite Party No.1 filed its written argument wherein it reiterated the facts and points mentioned in its written statement.
18) On 06/11/2010, the Complainant died. Therefore, his wife Smt. Jasmin Harris made an amendment application for amending the title clause of the complaint, bringing her name as the legal heir of the deceased Complainant on record as a new Complainant. She produced the death certificate of the deceased Complainant Shri. Harris Arinjal K. Valapil. The amendment application was allowed. Necessary amendment was carried out.
19) Thereafter, the Complainant also filed the written argument wherein the Complainant reiterated the facts mentioned in the complaint and affidavit of evidence.
20) We heard the Ld.Advocates for both the parties and perused the papers submitted by both the parities. Our findings in this case are as follows -
The Complainant has obtained the mediclaim policy from Opposite Party since 1997 and was renewed regularly thereafter every year till 30/11/06. During the validity of the mediclaim policy, the Complainant suffered from C.A. Prostate (a Cancer of Prostate) for which he was submitted the claims regularly for hospitalization and the claim were settled and paid by the Opposite Parties till November, 2005. However, dispute cropped up after November, 2005. The Complainant was having valid policy from 01/12/05 to 30/11/06.
21) The treating Doctor advised the injection of Zoladex quarterly for the treatment of C.A. Prostate. As per his advice the Complainant took this injection during the 1st quarter i.e. November, 2005 to January, 2006 and the cost of this treatment was not mentioned by the Complainant in his compliant. From the papers it appears that the treating doctor has administered this injection to the Complainant. The Complainant nowhere has mentioned at which hospital or nursing home he was hospitalized for taking this injection. However, the Opposite Party No.1 has not denied administrating the Zoladex injection by the Complainant nor it denied the submission of the claims by the Complainant. The only point raised by Opposite Party No.1 is that the claims of Rs.21,467/- and 21,585/- were rejected under clause 3.2 of the policy. But clause 3.2 of the policy does not exclude expenses incurred by the insured during hospitalization policy. Actually clause 3.2 allows post hospitalization expenses upto 60 days after hospitalization. Basically the insurance policy is an hospitalization policy. It states that “Relevant medical expenses incurred during period upto 60 days after hospitalization on diseases/illness/injury sustained will be considered as part of claim mentioned under item 1 above.”
22) This is not a case of clause 3.2 of the policy because the Complainant was 1st hospitalized on 04/06/03 to 08/06/03 and thereafter the treatment of chemotherapy and Zoladex injection was continued and the claims of the same were paid by the Opposite Party No.1 till November, 2005 i.e. even after 60 days after hospitalization. Therefore, the claim of the Complainant was repudiated on the wrong ground by the Opposite Parties.
23) Clause 2.4 of the policy-note specifically states “When treatment such as dialysis, chemotherapy, radiotherapy, etc. is taken in the hospital/Nursing home and the insured is discharged on the same day, the treatment will be considered to be taken under hospitalization benefit section.” Though the treatment of Zoladex injection is not mentioned in this “Note” the word etc. in clause 2.4 covers this treatment of administering the Zoladex injection which was prescribed by the treating Dr. Shri Percy Jal Chibber for the treatment of C.A. Prostate. Initially after the hospitalization 04/06/03 to 08/06/03 the Doctor has prescribed chemotherapy plus Zoladex. Thereafter only a Zoladex was prescribed. Thus, the treatment of cancer of prostate was a continuous treatment and as per clause 2.4 the word etc. covers this treatment. The Opposite Party No.1 also continued to pay the claims right from 2003 to November, 2005, even when only the Zoladex treatment alone was given to the Complainant. Therefore, in our candid view the Opposite Parties after Nov.,05, has wrongly repudiated the claim under clause 3.2 which is not relevant at all to case in hand and thus they are guilty of deficiency in service. Both the Opposite Parties are guilty of deficiency jointly and severally. However, the compensation sought and cost of the complaint prayed for by the Complainant is exorbitant. In our candid opinion we pass the order as follows -
O R D E R
i.Complaint No.16/2008 is partly allowed.
ii Opposite Party No.1 & 2 are directed to pay jointly and/or severally to the Complainant the insurance claim amount of Rs.43,052/- (Rs. Forty Three Thousand Fifty Two Only) alongwith interest @ 9% p.a. from 07/06/2006 till its payment.
iii. Opposite Party No.1 & 2 are also directed to pay jointly and/or severally a compensation of Rs.10,000/- (Rs. Ten Thousand Only) to the Complainant for causing mental agony & inconvenience to the deceased Complainant as well as present legal heir Complainant by repudiating the legitimate claim.
iv.Opposite PartyNo.1 & 2 are also directed to pay jointly and/or severally as sum of Rs.5,000/- (Rs. Five Thousand
Only) to the Complainant towards the cost of this complaint.
v.Opposite Party No.1 & 2 are directed to comply with the above said order jointly and/or severally within 30 days
from the receipt of this order.
vi.Certified copies of this order be furnished to the parties.
