IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 16th day of October, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 46/2019 (filed on 09-04-2019)
Petitioner : Sheena Jacob,
W/o. Krian C. Kurian,
Chirathalattu House,
Puthanchantha P.O.
Vakathanam, Kottayam,
(Adv. K. Kuruvilla John)
Vs.
Opposite Party : Manager,
New India Assurance Co. Ltd.
Salim Building,
M.C. Road, Changanacherry,
Pin – 686101.
(Adv. P.G. Girija)
O R D E R
Smt. Bindhu R, Member
This complaint is filed under Section 12 of the Consumer Protection Act 1986.
The complainant took a medical insurance policy from the National Insurance Company on 01-06-2012 and the same was renewed in 2013, 2014 and 2015 without break. On 28-12-2015 again the complainant enrolled with a medical insurance of the opposite party and the same was renewed in 2016. On 28-12-2017 the complainant renewed the said medical insurance by paying Rs.5443. She had paid Rs.17,976/- to the said family medical insurance policy for the coverage of the whole family. As per the terms of the said policy, the complainant, her husband and 2 children should get coverage from 28-12-2017 to 27-12-2018 for an amount of 8 lakhs. The policy No. of the said policy is 76010234172800000234. The complainant paid Rs.1,800/- in addition to the above premium amount to top up the insurance policy vide policy No.76010234177800000011 from 28-12-2017 to 27-12-2018. As per the policy conditions, the complainant is entitled for an insurance coverage of Rs.22,00,000/-. While so on 12-04-2018, the complainant was admitted in Sunrise Hospital, Ernakulam for the treatment of ovarian endometrial cyst. On the same day she had to undergo a surgery and was discharged on 13-04-2018. An amount of Rs.1,34,864.23 was incurred for the said treatment. As per the intimation of the policy to the hospital authorities by the complainant, the hospital authorities have intimated the opposite party about the treatment expenses. But the opposite party had paid only Rs.62,018 instead of Rs.1,34,864.23. The balance amount is Rs.72,846.23 . The complainant is entitled for Rs.72,309/- after deducting Rs.537.23 which was the expense of food but the opposite party is not ready to pay the said amount. The opposite party is liable to pay the expenses arising in any kind of treatment to the complainant in the policy period. The complainant is suffering from ovarian endometrial cyst for the 1st time in her life. The husband of the complainant demanded the TPA Medi Assist India vide a letter dtd.01-06-2018 to pay Rs.72,309/- but there is no reply from Medi Assist India TPA or from the opposite party yet. As the complainant has taken a medical insurance policy from the opposite party by paying premium regularly she is entitled to get the treatment expenses arising in the policy period from the opposite party. But the opposite party is evading the payment of full amount for some or other reasons only to defraud the complainant which is an unfair trade practice and cause deficiency in service from the part of the opposite party. The complaint is filed for getting compensation for the damages caused to the complainant.
Upon notice, the opposite party appeared and filed version.
The opposite party resisted the allegations in the complaint that while admitting that the complainant took a policy “New India Floater Medi claim” from the opposite party vide policy no.76010234172800000234 for a period from 28-12-2017 to 27-12-2018 and the total sum assured for the family consisting of 4 members was Rs.8 lakhs. The said policy was issued subject to the terms and conditions attached to it. The averments regarding policy No.76010234177780000011 is not known to the opposite party and policy that the sum assured for the said policy was Rs.22,00,000/- is also denied. Admittedly the complainant was diagnosed with left ovarian cyst at Sunrise Hospital, Kakkanad, Kochi. The treatment undergone there was
- Left Ovarian Cystectomy
- Adhesiolysis bilateral tubal sterilization
- CuT removal under general anaesthesia
As per exclusion clause No.4.4.13, “Treatment arising from or traceable to
pregnancy, childbirth, miscarriage, abortion or complications of any of these including caesarean section except abdominal operation for extra uterine pregnancy (Ectopic pregnancy) which is proved by submission of ultra sonographic report and certification by Gynaecologist that it is life threatening one if left unattended” are not payable. As per clause 4.4.6, any medical expense incurred for or arising out of ‘sterility’ is not covered. In this case, the left ovarian cystectomy is covered. But the bilateral tubal sterilization and CuT removal are not covered as per the clause No.4.4.6 and 4.4.13 and hence not payable. ‘Medi Assist’ is a third party administrator of the medi claim policies of the opposite party. The Sunrise Hospital, Kakkanad, Kochi has fixed a schedule ie. ‘Package rate’ for continuing cashless facility June, 2017. This package rates are valid for a period of Two years. This package includes the doctors fee, OT charges, Anaesthetic charges, Drugs, investigations, professional charges, Room rents, Nursing and administrative charges, implants, special investigations and modalities of treatment. As per clause 53 of the said package charges, of Sunrise Hospital, the charges for ovarian cystectomy is Rs.62,370/- if admitted in private Non A/c room. So the amount payable to the complainant is Rs.62,370/- only. The complainant had submitted claim for Rs.1,36,014/-. The balance amount of Rs.73,644/- is not payable as it was the expenses for the bilateral tubal sterilization and CuT removal which are excluded as per the above said exclusion clause. So, the claim of Rs.62,370/- was settled on cashless basis to the hospital for Rs.62,019/- deducting the hospital discount of Rs.351/-. Further a post hospital claim was received and it was settled for Rs.1,050,/- to the complainant.
No assurance of reimbursement of all the expenses incurred for treatment
was never given by the opposite party. The policy was issued subject to its terms and conditions and exclusion clause contained there in. No letter as alleged was sent to Medi Assist India TPA by the complainant. As per the policy conditions the opposite party is unable to pay the balance amount of Rs.72,309/- which is not covered by the policy. So there is no deficiency in service or unfair trade practice on the part of the opposite party and the opposite party is not liable for the mental agony or financial loss if any caused to the complainant. The complainant was already convinced the reasons for non-payment of balance amount of her claim. The opposite party has acted bonafidely in good faith and in accordance with the terms and conditions attached to the insurance policy. The complainant is not entitled to any relief and the complaint is liable to be dismissed.
The complainant adduced evidence through proof affidavit along with
Exts.A1 to A7 and the opposite party also filed proof affidavit along with Ext.B1 to B4.
On perusal of the pleadings and evidence on record, we would frame
the following points.
- Whether the complainant has succeeded in proving the deficiency in service on the part of the opposite party?
- If so, what are the reliefs?
- The case of the complainant is that she had purchased an insurance policy from the opposite party covering all 4 of her family members from the hospital expenses of any decease which was kept renewed annually and prompt payment of premium. Moreover she had made the policy top up also for the enhancement of the sum assured upto 22lakhs. But on the occasion of her undergoing a cystectomy surgery the opposite party evaded from settling the full amount for some reasons which is a gross deficiency of service.
- Whereas the opposite party raised the contentions that they had already paid Rs.62,370/-as per the package rate of treatment for ovarian cystectomy of the hospital and the balance amount being the expenses incurred for the Adhesiolysis bilateral tubal sterilization and Cu T removal under general anaesthesia were not payable as per the exclusion clauses of the policy conditions.
- Considering all the allegations, contentions and arguments we have given a detailed attention to the evidence on record. The policy is admitted by the opposite party and they have made a part payment to the hospital where the complainant was treated. The balance amount was not paid because the procedures for sterilisation etc. fall under the exclusion clause of the policy and as per the contract those charges are not payable.
While going through the Exhibit A4, the treatment history is recorded as “Left ovarian cystectomy, adhesiolysis, bilateral tubal sterilisation with Cu T removal under general anaesthesia.
4. The contention of the opposite party is that they had paid Rs.62,370/- as per the hospital package for ovarian cystectomy. But the point is whether the opposite party had informed the insured that if a claim arises, they would pay only according to the packages that the hospital give to them. But here the opposite party has nowhere in the policy conditions stated that they had been supplied with a package of treatment expenses and they would pay only according to that package. Unless and until the insured is intimated about this, the package is not binding on the insured. The contract of insurance made between the insurer and the insured does not contemplate such a package. So the insurer cannot insist that they would pay only as per the package.
5. The contention of the opposite party that the expenses incurred for the sterilization procedure is not payable as per the exclusion clause is admissible. But we are of the view that the expenses incurred for other procedures which are not included in the package given to the TPA by the hospital is also payable. The opposite party after receiving the premium regularly for years cannot evade from the payment on mere technical ground that too outside the contract. The contract of insurance is a contract uberri mafidie. So both the parties are bound by this bonafide contract. So the opposite party should pay the hospital expenses except the exclusions in the contract. In the clause 3.10 the network hospital or clause 3.11 cashless facility do not envisage the term hospital treatment package.
- The contention of making the payment only upon the hospital package without prior intimation does not have logical / technical or even legal reason for doing so. It is only for the business purpose and to avoid the responsibility for paying the actual expenses to the insured.
- Hence in the case in hand, as per the above discussion and as per the settled law that the act of the opposite party of giving only the amount under the package is not found to be a proper service as the insured is in no way connected to the said package. The insured had been paying the premium for the sum insured and if a claim arises, the opposite party is bound to pay the payable expenses as per the wordings of the contract.
- Exhibit B4 is the claim settlement advice given by the TPA to the opposite party in which the amount payable is shown as Rs.62370/- and the amount non payable is s72494/-. The reason for the non payable is shown as “Excess of agreed hospital package rate”. As per this the amount transferred is 55817/- only.
- The opposite party in their version stated that they had paid the amount of the hospital package ie 62370/- and the balance amount is not payable as they had paid the said amount as per the hospital package and the sterilization treatments such as removal of CuT and bilateral tubal sterilization are excluded by the provisions of the policy conditions. Exhibit B3 and A5 are the same ie. the hospital bill issued by the Sunrise Hospital towards the treatment expenses of the complainant in which the total amount is 1,34,864.23. The expense for TL + Cu T removal is shown as 10000/-only. The amount for adhesiolysis is Rs.43,000/-. Rs.795 for the food and related services. All the other expenses are not stated to be included in the exclusion clause. So there is no satisfactory explanation given by the opposite party why they had omitted to give the expense under the other heads. Even the amount incurred under ovarian cystectomy in total comes to 60,000/-,Medicines6915/-,IP consultation 500,observation charge 500, procedure charges 5320/-,Radiology 700/-, Lab investigations 2808, anaesthesia drugs 1500/-,others 200/-. The opposite party has failed to establish how they arrived at the said amount or on what basis the hospital package is framed.
- The contention of the opposite party that they had settled the claim by giving the amount as per the hospital package is not tenable. The insurance policy is primarily meant for the support of the insured at the time of accidental hospitalisation based on the premium he/she pay for years based on the contract entered into between the insurer and the insured bonafidely. The terms and conditions etc. should be communicated to the insured even before the payment of premium is the just and proper way. But here the insurance company had never intimated the insured that they would pay the claim only according to the agreement made by their third party agency with the hospital in which the insured is not at all a party and she is not having the knowledge of it as well. So this act of the opposite party is seen unfair and such practices cannot be entertained so as to cause unwanted mental agony to the insured. The Consumer protection act is a benevolent legislation which is ultimately meant for the reddressal of the grievances of the consumer who are subjected to such unfair practices.
- Moreover, the settled position is also if the contract of insurance is having some ambiguity, it should be construed in favour of the insured. Thus we are of the opinion that there is gross deficiency in service and unfair trade practice on the part of the opposite party which is to be compensated by the opposite party.
The complaint is allowed and the opposite party is directed to pay the amount of Rs.28,809/- to the complainant along with an interest at the rate of 9%from the date of 13.4.2018 till realisation.
The opposite party is also directed to pay Rs.5000/- as compensation and Rs.2000 as litigation expenses.
The order shall be complied with within 30 days from the date of receipt of Order. If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 16th day of October, 2021.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant.
A1 – Copy of membership card in the name of petitioner issued by
opposite party
A2 – Copy of insurance policy certificate no.76010234172800000234
A3 – Copy of insurance policy certificate no.76010234177800000011
A4 – Copy of discharge summary dtd.13-04-2018 issued by Sunrise Hospital,
Kakkanad
A5 – Copy of medical bill for Rs.1,34,864.23 issued by Sunrise Hospital,
Kakkanad
A6 – Copy of receipt dtd.14-04-18 issued by Sunrise Hospital, Kakkanad
A6 (a)– Copy of receipt dtd.12-04-18 issued by Sunrise Hospital, Kakkanad
A7 – Copy of letter dtd.01-06-18 from Kiran C Kurian to the Office in charge
Medi Assist India TPA, Ernakulam
Exhibits marked from the side of opposite party
B1 – Copy of policy with terms and conditions
B2 – Copy of package charges – June 2017 issued by Sunrise Hospital,
Kakkanad
B3 - Copy of bill issued by Sunrise Hospital, Kakkanad
B4 – Copy of claim settlement advice dtd.05-05-18
B4 (a) - Copy of claim settlement advice dtd.30-06-18
By Order
Senior Superintendent
