PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer complaint is as under –
The Complainant is Senior Solicitor, Advocate and Notary practicing law in the Bombay High Court since, 1966. He had obtained Mediclaim Policy bearing No.110900/48/04/76204 from Opposite Party No.1. Photo copy of the aforesaid mediclaim policy is produced alongwith complaint at Exh.‘A’. The aforesaid policy was for the period from 11/07/2004 to 10/07/2005. Sum assured under the said policy is Rs.3,00,000/-. Amount of cumulative bonus noted against the name of Complainant is Rs.1, 05,000/-. All the ailments related to GOUT are excluded from the policy.
2) It is the case of the Complainant that on 27/11/04, he fell down from a height on a granite ground at Cricket Club of India and thereby he sustained injuries to his left leg. The Complainant was immediately taken to Bhatia General Hospital and admitted in the said hospital on the same day i.e. on 27/11/04. His X-ray showed a fracture of Femur bone to left leg. On 27/11/04 the Complainant was operated upon by a Senior Orthopedic Surgeon Dr.Nikhil Shah and his team. Unfortunately on 3rd day of operation i.e. on 01/12/04 the Complainant developed complications and his wound started bleeding profusely. The Complainant’s condition became critical and serious. Team of doctors headed by Dr.Nikhil Shah decided to reopen the wound and accordingly second operation was performed. The Complainant was confined to bed in the hospital till 14/12/04. He was discharged from the hospital on 14/12/04 and was advised bed rest for 15 days. During hospitalization and thereafter the Complainant incurred huge expenses by way of operation charges, hospital charges, and other medical charges, room charges and doctor’s fees etc.
3) The Complainant vide his letter dtd.16/02/05 lodged his claim with Opposite Party No.1 for sum of Rs.4,31,339/- for reimbursement of the medical expenses. Alongwith claim, the Complainant submitted medical case papers, medical bills etc. to the Opposite Party.
4) In the first week of July, 2005 the Complainant received from Opposite Party No.2 the claim statement-cum-discharge voucher alongwith cheque of Rs.2,59,949/-. The Complainant had preferred total claim of Rs.4,31,339/- out of which claim to the extent of Rs.2,59,949/- was sanctioned and balance claim of Rs.1,71,390/- was rejected by the Opposite Parties. The Complainant under protest and without prejudice to his rights accepted cheque of Rs.2,59,949/- and accordingly informed to the Opposite Party by letter dtd.04/07/2005.
5) The Complainant by letter dtd.14/07/05 set out relevant facts and explained the reasons and/or to how that the deduction made by Opposite Party was unjustified and illegal. Opposite Party vide letter dtd.14/07/05 informed the Complainant out of the surgeon’s fee of Rs.1,20,000/- they have sanctioned Rs.40,000/- but no reason whatsoever was assigned. It is alleged by the Complainant that the bills submitted alongwith the claim form were not properly checked by the Opposite Party. The Complainant purchased medicines from the store of the said hospital. Name of medicines is also mentioned in the bill and even then the Opposite Party had rejected the claim of the Complainant under head ‘Pharmacy’.
6) Subsequently Complainant received a letter dtd.19/07/2005 from the Opposite Party No.1 in which it was informed that Opposite Party No.1 were looking into the Complainant’s grievance with concerned TTK and were revert back to the Complainant. Thereafter Complainant wrote several letters but Opposite Party have not considered claim of the Complainant’s balance amount of Rs.1,71,390/-. Therefore, the Complainant has filed his complaint.
7) The Complainant has prayed to declare that the Opposite Parties are guilty of deficiency in service. He has requested to direct the Opposite Parties to pay to the Complainant sum of Rs.1,71,390/- towards balance claim with interest @ 18 % p.a. from 01/07/2005 till realization of entire amount. The Complainant has claimed Rs.5 Lacs as a compensation towards mental agony and Rs.25,000/- towards cost of this proceeding from the Opposite Party. Alongwith complaint, the Complainant had filed copies of the documents as per list of document. The Complainant has filed affidavit of evidence and produced documents as per list of documents.
8) Opposite Parties have filed their written statement and thereby resisted claim of the Complainant contending interalia that complaint is misconceived and bad in the law and does not disclose any cause of action therefore, complaint is liable to be dismissed with cost. It is further submitted that complaint is instituted beyond the period of limitation. As per clause 5.3 and 5.4 of the terms and conditions of Mediclaim Insurance Policy as admitted by the Complainant, for happening of any event which may give rise to a claim under this policy notice with full particulars shall to sent to the Company within 7 days from the date of hospitalization and claim must be filed within 30 days from the date of discharge from the hospital. The Complainant has not filed his claim within 30 days from the date of discharge from the hospital. Even then the Opposite Parties have entertained the claim because it did not want to reject the claim which the Opposite Parties were legally bound to pay and the Opposite Parties have issued cheque of the amount of Rs.2,59,949/- to the Complainant which is accepted by the Complainant.
9) It is contended that this Consumer Forum has no jurisdiction to entertain and try this complaint as a Mediclaim policy provides to refer the dispute to a sole arbitrator to be appointed in writing by parties.
10) The Opposite Parties have denied the allegations made in the complaint. According to the Opposite Parties, claim settlement-cum-discharge voucher clearly states that cheque of Rs.2,59,949/- was towards full and final settlement and encashment of the cheque shall discharge the liability of the insurer under the said claim. The Complainant has accepted aforesaid cheque. The Opposite Parties have rejected the bills with remark “no name- not payable”. As Complainant’s name is not mentioned on the bills of medicine, Complainant’s claim was rightly rejected by the Opposite Party. Opposite Parties are liable to pay only the medicine with receipt to the said injury caused to the Complainant. Therefore, decision of the Opposite Party of rejecting the claim of under head “Pharmacy” is justified. It is contended that in any hospital the surgeries are done with the equipment which are in the hospital and the statements by the responsible authorities like Manager Administration to that effect that the collection of charges directly by the treating doctors were allowed during the period only and not of other period clearly indicates that the said submissions of the bill by the treating doctors was not as per the rules followed by the hospital. It is further contended that the collection of charges directly by the treating doctor is unheard of and in any hospital without the hospital charging for the same. It is further submitted that Surgeons and Anesthesia’s fees were negotiable in the room category patient is unheard of. The bill claimed by the Complainant is exorbitant and the deducted amounts are reasonable. The Opposite Parties have disputed the Complainant’s claim of compensation of Rs.5 Lacs, contending that claim is highly exaggerated. According to the Opposite Party, the complaint is liable to be dismissed with cost.
11) Alongwith written statement, Opposite Parties have filed affidavit of Mr. Y.T. Owal, Officer of the Opposite Party No.1.
12) On 02/12/2008 the Complainant has produced photo copies of Pharmacy bills obtained from Bhatia General Hospital. The Complainant has filed written argument and alongwith written argument he has produced copies of number of documents. On 07/04/2010 the Complainant was present. Opposite Parties were absent. Opposite Parties had not appeared before this Forum from last many dates, so we heard oral submissions of the Complainant and matter was closed for order. However, before passing of final order, Hon’ble member Smt.Jyoti S. Iyer was transferred from this Forum. Therefore, the matter was again fixed for rehearing. Notice of rehearing is sent to both the parties. Inspite of notices served to the Opposite Parties, Opposite Parties have not appeared before this Forum and on the ground of absence of Opposite Parties the matter was adjourned for argument. In such circumstances lastly we heard oral submissions of Complainant and matter was closed for order.
13) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Yes.
Point No.2 : Whether Complainant is entitled to recover Rs.1,71,390/- with interest, compensaion and cost of this complaint
from Opposite Party ?
Findings : As per final order.
Reasons :-
Point No.1 :- Following facts are undisputed fact that the Complainant had taken Hospitalization and Domiciliary Benefit Policy bearing No.110900/48/04/76204 from Opposite Party No.1. The Complainant has produced photo copy of the aforesaid policy alongwith complaint at Exh.‘A’. Under the policy Opposite Party has given sum assured Rs.3,00,000/- + Rs.2,00,000/- to the Complainant and cumulative bonus of Rs.1, 05,000/- + Rs.10,000/- is recorded against the name of Complainant. All the ailments related to GOUT are excluded from the policy. As per the Complainant, during the period of aforesaid policy on 27/11/04 he fell down from a height in the Cricket Club of India on a granite ground and thereby he suffered injuries to his left leg. It is not in dispute that after the aforesaid accident the Complainant was immediately taken to Bhatia General Hospital. The x-ray showed a fracture of Femur bone to left leg. On 29/11/04 the Complainant was operated upon by a Senior Orthopedic Surgeon Dr.Nikhil Shah and his team. The aforesaid facts are not disputed by the Opposite Party. Opposite Party has also not disputed averment made in the complaint para no.5 that on 01/12/04 the Complainant developed complications and his wound started bleeding profusely. The Doctor took emergency decision to reopen the wound and accordingly second operation was performed by Dr.Nikhil Shah. It is undisputed facts that from 27/11/04 till 14/12/04 the Complainant was indoor patient in Bhatia General Hospital. After discharge from the hospital, the Complainant submitted his claim for reimbursement of the medical expenses of Rs.4,31,339/- to Opposite Party No.1. Photo copy of the claim form is produced by the Complainant. By letter dtd.01/07/05 Opposite Party No.2 – TPA of Opposite Party No.1 sent statement-cum-discharge voucher of Rs.2,59,949/- to the Complainant. The Opposite Party has not sanctioned balance claim of Rs.1,71,390/-. The Complainant vide letter dtd.04/07/05 informed Opposite Party that he was accepting said Rs.2,59,949/- under protest and without prejudice to his right of claiming the balance amount. Copy of the said letter is produced on record at Exh.‘D’.
It is the grievance of the Complainant that Opposite Party has illegally and arbitrarily deducted an amount of Rs.1,71,390/- from his claim. From time to time he requested Opposite Party to reconsider his claim but there was no response from the Opposite Party, therefore, he has filed this complaint.
According to the Complainant, the amount of Rs.1,71,390/- deducted by the Opposite Parties is unjustified, bad and illegal. On the contrary, according to the Opposite Party, even though delay was caused by the Complainant in submitting claim form, they have sympathetically considered claim of the Complainant and sanctioned amount of Rs.2,59,949/- which they are under legal obligation to pay. As regards the amount deducted, it is submitted that alongwith claim settlement-cum-discharge voucher they have given particulars of the amount claimed by the Complainant and the particulars of the amount which are not admissible under the policy and therefore, disallowed by the Opposite Party.
The Complainant has produced copy of mediclaim computation received from the Opposite Party alongwith claim settlement-cum-discharge voucher. The Complainant who is a solicitor and advocate practicing in the Hon’ble High Court has referred mediclaim computation and pointed out the amounts which are disallowed by the Opposite Party. It is pointed out that the Opposite Parties have disallowed pharmacy bills on the ground that the Complainants name is not mentioned in the pharmacy bills. In the written statement Opposite Party have clearly stated that Complainant’s name was not mentioned in the pharmacy bills and so the said pharmacy bills are deducted from the claim. It is submitted by the Complainant that in view of aforesaid objection raised by the Opposite Party, he has collected copies of pharmacy bills from Bhatia Hospital and informed about the same to the Opposite Party but Opposite Parties have not considered his claim. On 02/12/2008 the Complainant has produced pharmacy bills obtained from Bhatia General Hospital. Each and every pharmacy bills produced by the Complainant alongwith application dtd.02/12/2008 bears name of the Complainant Mr. Indravadan Ramshanker Joshi. Total amount of the aforesaid pharmacy bills comes to Rs.30,582/-. Therefore, from the evidence produced on record, it appears that the Opposite Party has wrongly rejected claim of the Complainant regarding pharmacy bills.
It is further submitted that Opposite Parties have deducted Rs.1,20,000/- out of Surgeons fees of Rs.1,60,000/- mentioned in the claim form, alleging that Complainant has claimed Rs.1,20,000/- excess amount towards Surgeons charges. According to the Complainant, he was admitted in the Bhatia General Hospital on 27/11/07 as he had sustained injury/fracture Femur bone to the left side of leg. On 29/11/04 he was operated but unfortunately his condition become serious and he was to undergo second operation. As per the prevailing practice in the Bhatia General Hospital, the Complainant directly paid as surgeons fees to the concerned surgeon. The Complainant has produced letter of treating Dr. Nikhil Shah who is Consultant Orthopedic Surgeon attached to Bhatia General Hospital. Dr. Nikhil Shah has given particulates of his total fee of Rs.1,60,000/- received from the Complainant. The Opposite Party has submitted that the collection of treating Doctor’s fees is unheard of. It appears from the evidence on record that the Complainants statement the collection of charges directly by treating doctors, were allowed in Bhatia General Hospital during the relevant period is supported by Administrative Officer of Bhatia General Hospital. There are no rules and regulations regarding fees of surgeons. Patient admitted in the hospital cannot determine fees of his treating doctor. It appears that Dr. Nikhin Shah is a Senior Orthopedic Consultant and he has certified that he has received Rs.1,60,000/- towards fees from the Complainant. In such circumstances, it cannot be said that the Complainant claim Rs.1,60,000/- towards the surgeon’s fees was excessive. Therefore, deduction of Rs.1,20,000/- from surgeons charges by the Opposite Parties is not justifiable.
The Complainant has produced terms and conditions of the Mediclaim policy issued by the Opposite Party. As per Clause 1.0 of the Policy “In the event of any claim becoming admissible under this scheme, the company will pay to the Insured person the amount of such expenses as would fall under different heads mentioned below, and as are reasonably and necessarily incurred thereof by or on behalf of such Insured Person, but not exceeding the Sum Insured in aggregate in any one period of insurance stated in the schedule hereto.
A)Room, Boarding Expenses as provided by the hospital/nursing home.
B)Nursing Expenses.
C)Surgeon, Anaesthetist, Medical Practitioner, Consultants, Specialists Fees.
D)Anaesthesia, Blood Oxygen, Operation Theater Charges Surgical Appliance, Medicine & Drugs, Diagnostic Materials and X-Ray, Dialysis, Chemotherapy, Radiotherapy, Cost of Pacemaker, Artificial Limbs & Cost of Organs and similar expenses.
(Note: Company’s Liability in respect of all claims admitted during the period of insurance shall not exceed the Sum Insured per person mentioned in the schedule.)
In view of aforesaid terms and conditions of the policy we have carefully gone through Mediclaim computation submitted by the Opposite Party No.2 to the Complainant which is produced alongwith complaint at page 42. It appears that some of the items like telephone charges, expenses of relatives stays, amount spent for body lotion, ambulance charges, colon, charming cream, refresher, home visit charges are not payable as per the terms and conditions of policy. Total amount of aforesaid charges comes to about Rs.12,000/-. After deducting amount of Rs.12,000/- from the balance amount of Rs.1,71,390/-, Complainant is entitled to claim Rs.1,59,390/- from the Opposite Party. It is proved that the Opposite Party is unreasonably deducted huge amount from the claim of the Complainant and it amounts to deficiency in service on the part of Opposite Party, therefore, we answer point no.1 in the affirmative.
Point No.2 :- For the reasons discussed above, the Complainant is entitled to claim Rs.1,59,390/- out of the balance of Rs.1,71,390/- from the Opposite Party.
The Complainant has claimed interest @ 18 % p.a. on aforesaid amount from 01/07/2005. The Complainant claimed interest at exorbitant rate. Considering facts of this case, we think it just to direct Opposite Parties to pay interest @ 9 % p.a. to the Complainant on Rs.1,59,390/- from 01/07/2005 till realization of entire amount to the Complainant.
The Complainant has claimed Rs.5 Lacs towards compensation for mental agony. The Complainant has claimed exorbitant amount of compensation from the Opposite Party. It is true that the Complainant is a senior citizen and he is practicing as an advocate in the High Court. Considering the facts of this case, we think it just to direct Opposite Parties to pay an amount Rs.10,000/- to the Complainant towards compensation for mental agony.
The Complainant has claimed Rs.25,000/- towards cost of this proceeding. Considering the nature of this proceeding, we think it just to direct Opposite Parties to pay an amount of Rs.5,000/- to the Complainant towards cost of this proceeding.
For the reasons discussed above, we pass following order –
O R D E R
i.Complaint No.22/2007 is partly allowed.
ii.Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.1,59,390/- (Rs. One Lac Fifty
Nine Thousand Three Hundred Ninety Only) to the Complainant with interest @ 9 % p.a. from 01/07/2005
till realization of the entire amount.
iii.Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.10,000/- (Rs.Ten Thousand
Only) as compensation for mental agony and Rs.5,000/- (Rs. Five Thousand Only) towards cost of this
proceeding to the Complainant.
iv.Opposite Party Nos.1 & 2 shall jointly and/or severally comply with this order within 1 month from the
date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
