PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed the that Opposite Parties be directed to pay Rs.1,30,785/- alongwith interest thereon @ 18% p.a. from filing of the complaint i.e. 08/10/2010 till actual payment to the Complainant.  It is also prayed that the Opposite Parties be directed to pay Rs.25,000/- by way of compensation towards harassment, mental agony and inconvenience suffered by the Complainant and cost of Rs.10,000/- towards the cost and professional fees to the Complainant and

any other reliefs.

2)        The Complainant alleged that he is a subscriber of Mediclaim Policy offered by the Opposite Parties from 2000 without any gap.  The policy relevant to the facts of this case was for the period 12/03/2010 till midnight of 11/03/2011.  The copy of mediclaim policy issued by the Opposite Party is marked as Exh.‘A’.  It is submitted that around the year December, 2009 the Complainant felt pain in his right knee.  Thereafter, he made casual checkup from his family doctor and took medicine for few days but there was no effect.  On the contrary his left leg knee also started paining.  He was unable to walk properly.  The Complainant came to know about non invasive treatment for Osteoarthritis called Rotational Field Quantum Magnetic Resonance (referred to as RFQMR) which was being offered by Bangalore based Company, Cartigen Health Care Pvt. Ltd., having their Mumbai Centre at JMC House, Bislavi Compound, Andheri-Ghatkopar Link Road, Andheri (W),Mumbai -99.  According to the Complainant, she undertook RFQMR treatment for both the knees for Osteoarthritis during the period from 06/05/2010 to 26/05/2010 i.e. for total period of 21 days continuously for duration of at list 1 hours followed by prescribed and supervised Physiotherapy exercise for half an hour. It is submitted that the infrastructure for the treatment of the Complainant for pain in the knee joint only available at the Cartigen Health Care Pvt. Ltd. as the machine for the above treatment are available at their Health Care Centre which are designed and developed by them at their Bangalore as well as Bombay Based Centre.  It is submitted that after completion of her treatment as there was some pain, she was in regular consultation with the Doctors and Physiotherapist.  The Complainant further submitted that she often visited SBF Health Care Centre for examination and was recommended some oral medicines which stated to work and effected after one-two weeks and after follow up visits, it was concluded that the Complainant would not require any further post treatment RFQMR sessions. 

3)        The Complainant thereafter, on 18/06/2010 submitted his claim for Rs.1,30,785/- to the Opposite Parties with all necessary documents which are marked at Exh.‘B’.  The copy of claim form is marked at Exh.‘C’ colly. According to the Complainant, the Raksha TPA Pvt. Ltd. i.e. Opposite Party No.2 vide letter dtd.30/07/2010 repudiated the claim of the Complainant on the ground that as per available documents, patient was admitted for Osteoarthritis both knees and treated with QMR Therapy.  As QMR therapy was not proven treatment hence, the claims stands non payable under exclusion 4.4.19. 2) Exclusion Clause 4.4.19 experimental and unproven treatment (not recognized by Indian Medical Council) QA on both knees. 

4)        It is submitted that the Complainant thereafter tried to communicate through telephonic talk with the concerned officer of the Opposite Party and requested them to reopen her claim file but she has not received any reply from them.  It is submitted that the Opposite Party as well as other Insurance Companies have allowed such claims of their clients. The Complainant has relied the order of Ombudsman, Chandigarh.  The judgement of this Forum in Complaint No.208/2008 in the case of Rajesh Patel V/s. United India Insurance Co., the order of Ombudsman, Kolkatta.  It is submitted that the Opposite Parties are required to allow genuine claim submitted by him.  It is also submitted that by repudiating claim submitted by the Complainant the Opposite Parties are indulging in unfair trade practices. There is gross deficiency of the service on the part of the Opposite Parties as they have not settled the claim of the Complainant. The Complainant therefore, submitted that due to such act of repudiation of claim he had suffered mental agony as well as hardship and inconvenience for which the Opposite Parties are liable to compensate the Complainant. The Complainant has therefore, prayed that the reliefs claimed in para one of this order may be granted in his favour. 

5)        The Opposite Party No.1 by its written statement contested the claim and contended that as per clause 4.4.19 experimental treatment and unproven treatment (not recognized by India Medical Council) cannot be granted.  It is not disputed that the Complainant had taken the Mediclaim Policy as alleged.  It is submitted that there is no deficiency or negligence of service rendered by the Opposite Parties.  It is denied that the Complainant had suffered mental agony.  It is contended that as per the terms and conditions of the policy the claim of the Complainant has been rejected. The other allegations made in the complaint have been specifically denied by the Opposite Party No.1.

6)        The Complainant has filed affidavit of evidence.  The Opposite Parties have not filed affidavit of evidence. Both the parties filed their written arguments. We heard the oral arguments of Smt. S.D. Gandhi, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi the Ld.Advocate of the Opposite Party No.1. Smt. S.D.Gandhi, Ld.Advocate for the Complainant submitted that this Forum as well as the Central Mumbai District Forum, Mumbai Suburban District Forum and Ombudsman – Kolkatta and Ombudsman of Ahmedabad have allowed claims for such treatment which the Complainant has obtained for his both knee joints.  She has placed on record the copies of those judgements at the time of her oral argument.  Smt. Gandhi, Advocate also submitted that as per the objective of the Indian Medical Council and India Medical Council Act, 1933, what treatment is to be recognized is not mentioned in its objectives. She therefore, submitted that the clause which is relied by the Opposite Parties in the policy is totally improper for repudiating the claim made by the Complainant. She has also relied the literature regarding SBF Health Care as well as QMR Therapy.  She submitted that as per the literature submitted by her the QMR Therapy Clinical trials were approved by the Ethics Committee of the Indian Air Force under the AEGIS of Indian Council of Medical Research. She therefore, submitted that in view of QMR is a new method of treatment Conquering Arthritis.  The Ld.Advocate Smt. Gandhi submitted that the repudiation of the claim is unjustified on the part of the Opposite Parties. She therefore, submitted that the claim made in the complaint be allowed. 

7)        Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party No.1 submitted that the Opposite Parties rightly rejected the claim as it is unproven and experimental treatment which is not recognized by Indian Medical Council. She therefore, submitted that the complaint is liable to be dismissed.                     

8)        The following points arise for our determination and our findings thereon with reason as under –

Point No.1 :   Whether the Opposite Parties prove that the claim for the treatment of  RFQMR  obtained  by  the  Complainant for both the knees for

                        Osteoarthritis during the period from 06/05/2010 to 26/05/2010 at Cartigen Health Care Pvt. Ltd.  at  Mumbai  as being experimental

                        treatment and unproven treatment (not recognized by Indian Medical Council) cannot be granted ?

Ans.            :   Not proved.

Point No.2  :  Whether the Complainant  proves  that  he  is  entitled  for  treatment charges and interest thereon from the date of complaint i.e. 08/10/08

                         as well as compensation and cost of the proceeding ?

Ans.            :   Yes, proved.

Point No.3  :  What order ?

Ans.            :  As per final order.

 9)  All the Points :  The Opposite Parties have specifically come out with the case that as the Complainant has obtained treatment at SBF Health for severe Osteoarthritis of Both Knees and he availed treatment i.e. Quantum Magnetic Resonance Therapy which is an experimental and unproven treatment (Not recognized by Indian Medical Council) he is not entitled for the claim lodged to the Opposite Parties.  In this context, in our view the burden lies to prove that the treatment obtained by the Complainant is excluded as per the clause No.4.4.19 of the Mediclaim Policy which the Complainant had obtained from the Opposite Parties.  The Opposite Parties though raised such contention while repudiating the claim of the Complainant have not produced any documentary evidence to establish which are the approved or proven treatments recognized by Indian Medical Council.  The Opposite Parties have also not produced on record any documentary evidence to show that the RFQMR treatment is not recognized by the Indian Medical Council.  In our candid view only raising such objection by the Opposite Parties would not be justifiable.  The Opposite Parties are expected to establish it by any circular of Indian Medical Council to that effect.  As the Opposite Parties have not placed on record any such type of authorized documentary evidence showing that the treatment obtained by the Complainant is not recognized by the Indian Medical Council and only mentioning the same in the mediclaim policy clause would not be held just and proper for repudiating the claim.  The Opposite Parties have not disputed that the Complainant has not obtained RFQMR treatment at SBF Health Care for severe Osteoarthritis of Both Knees and he had incurred an expenditure of Rs.1,30,785/- for such treatment.  In the absence of any proof produced by the Opposite Parties in our view the repudiation made by the Opposite Parties regarding the claim lodged by the Complainant is not at all justifiable.  Furthermore, the Complainant have produced on record the literature showing that the QMR treatment for Osteoarthritis significantly decreases pain, increases mobility, stability and power of the knee joint, and increases the cartilage thickness, establishing the efficacy of QMR in chondrogenesis.  Furthermore, as per the document of objectives of Indian Medical Council which is placed on record by the Advocate for the Complainant, it appears that the said Council is not having object to approve any specific treatment or disapprove any treatment.  We therefore, hold that the contention raised by the Opposite Parties for justifying the repudiation itself is not proved by them. 

            The Complainant has also produced on record the copies of orders passed by Ombudsman, Kolkatta, in the case of Prabir Kumar Chatergi V/s. The New India Assurance Co. Ltd., dtd.19/06/2009, the order of Additional District Consumer Forum, Bangalore in Consumer Case No.599/2009 Sunitha Ahuja V/s. The New India Assurance Co. Ltd., dtd.26/11/2009.  the order of South District Consumer Forum, in C.C. No.208/2008 in the case of Mrs. Indira C. Patel V/s. United India Insurance Co. Ltd., dtd..31/10/2009, order of the same Forum in C.C. No.231/2010 in the case of Rajesh Nambiar V/s. National Insurance Co. Ltd., dtd05/10/2011, order of Mumbai Suburban District Forum in C.C. No.220/2010, dtd.31/05/2012 in the case of Arun G. Bharal V/s. Oriental Insurance Co. Ltd., of the same Forum in the case of Krushna Kumar Gupta V/s. United India Insurance Co. ltd. in C.C.No.618/2010, dtd.05/04/2013 and Central Mumbai District Forum in C.C.No.73/2011, decided on 20/08/2011 in the case of Kishori Karkhanis V/s. Reliance General Insurance.  In all the aforesaid cases the Insurance Companies have raised similar objections and also some more objections such as, not admitting by the patient in the hospital for continuous period of treatment or more than 24 hours, etc. however, in all the aforesaid cases the said objection were turned down by the judicial decisions.  We therefore, hold that only raising the objection and relying on clause no.4.4.19 of the policy by the Opposite Parties would not be sufficient to justify the repudiation on their part.  The same must be proved by the authentic evidence to that effect.  The Opposite Parties have failed to prove the same. 

            The Opposite Parties have not denied that the Complainant has incurred an expenditure of Rs.1,30,785/- for the treatment which he had taken from SBF Health Care Centre, Mumbai.  The Complainant has also produced bills issued by the said SBF Health Care Centre alongwith complaint.  In our view therefore, the Complainant is entitled for that amount of Rs.1,30,785/- from the Opposite Parties.  We also hold that as the Opposite Parties have denied the claim without any justification and adopted unfair trade practice as discussed above the Complainant is entitled for compensation of Rs.10,000/- from the Opposite Parties.  The Complainant is also entitled for the interest @ 6% p.a. from the date of 03/12/2008 on the amount of Rs.1,30,785/- till its realization. The Complainant is also entitled for the cost of Rs.5,000/- towards this proceeding from the Opposite Parties. In the result we answer the point no.1 as not proved and Point No.2 as proved. In the result we pass the following order –

O R D E R

i.                    Complaint No.284/2010 is partly allowed against Opposite Parties.

ii.                 Opposite Parties are directed to pay Rs.1,30,785/- (Rs. One Lac Thirty Thousand Seven Hundred Eighty Five Only) to the Complainant with interest @ 6% p.a. from 08/10/2010 till actual payment.

iii.              Opposite Parties are directed to pay Rs.10,000/- (Rs. Ten Thousand Only)  as  compensation  to  the  Complainant  towards unfair trade practice adopted against her.

iv.               Opposite Parties are directed to pay cost of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant.  

v.                  The Opposite Parties are directed to comply with the above order  within one month from the date of service of this order.  

vi.               Certified copies of this order be furnished to the parties.