Tamil Nadu

South Chennai

CC/38/2022

P. Suresh - Complainant(s)

Versus

NEW INDIA ASSURANCE COMPANY LIMITED, Rep. by its authorised officer and another - Opp.Party(s)

M/s. S. Sridhar

06 Jun 2023

ORDER

                                                                                  Date of Complaint Filed:22.02.2022

  Date of Reservation     :23.05.2023

  Date of Order              :06.06.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                   THIRU. T.R. SIVAKUMHAR, B.A., B.L.,              :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,       : MEMBER II

               

                                                                           CONSUMER COMPLAINT No.38/2022

TUESDAY,THE 6^THDAY OF JUNE 2023

P.Suresh,
S/o.D.Pandian,
No: 74A, 3rd Main Road,
Kolathur, Chennai 600099.                                                                                                                                    .. Complainant.

-Vs-

 

1.New India Assurance Company Limited,

   Rep. by its authorised officer,
   Large Corporate & Brokers Office,
   Tarapore Towers, 3^rd Floor,
   826, Anna Salai,

   Chennai 600 002.

2. Vidal Health Insurance Tpa Pvt, Ltd,

    Rep. by its authorised officer,
    No 88, Anmol Palani Building, 2^nd floor,
    G.N.Chetty Road,

    T Nagar, Chennai,
    Tamil Nadu 600017.                                                                                                                                     .. Opposite Parties.

* * * * * * *

Counsel for the Complainant    :     M/s. M.Sridhar, Adv.,

Counsel for 1^st Opposite Party  :     Mr.S.Dhakshnamoorthy, Adv.,

Counsel for 2^nd Opposite Party  :     Exparte on 23.05.2022.

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the 1^st Opposite Party this Commission delivered the following:

 

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

 

(i)  The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties to jointly or severally pay Rs.3,07,883/- with 18% interest to the Complainant from 13.3.2021 to till the date of payment and to pay a sum of Rs.10,00,000/- to the Complainant as compensation towards mental agony, hardships suffered by them due to the deficiency in service rendered by the Opposite Parties and to pay the cost of the complaint. 

 

1.    The averments of Complaint in brief are as follows:-

 

1. The Complainant submitted that he is working as Technical Manager in
the EXPLEO SOLUTIONS LIMITED. He and his family members covered
under cashless insurance scheme vide Policy No.970000/34/19/04/00000043 through the 1^st Opposite Party and the 2^nd Opposite Party is Third Party Administrator of 1^st Opposite Party. The Complainant's son namely Baby Tamizh Nilavan who is aged 4 years old then had complained pain in his left ear all of sudden in the year 2019.Hence he was taken to KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED where he was diagnosed that he had been suffering from BILATERAL HARD OF HEARING WITH DELAYED SPEECH, hence to restore his speech and hearing capacity cochlear implant surgery should be done as earliest possible time.

2.     The Complainant submitted that cochlear implant is life saving treatment. A cochlear implant is a small electronic device that electrically stimulates the cochlear nerve (nerve for hearing). The implant has external and internal parts. The external part sits behind the ear. It picksup sounds with microphone. It then processes the sound and transmits it to the internal part of the implant. The internal part is placed under the skin behind the ear during an in-patient surgery. A thin wire and small electrodes lead to the cochlea, which is part of the inner ear. The wire sends a signal to the cochlear nerve, which sends sound information to the brain to produce a hearing sensation. Early treatment can put child's hearing progress on par with their nearing peers.

3.     The Complainant submitted that considering the strict advice of doctors and necessity of the lifesaving surgery he admitted his kid as inpatient on 30.09.2019 and COCHLEAR IMPLANT was done on his left side ear. The Complainant spend totally Rs.25,00,000/- as on date medical expenses for including pre and post-surgery expenses. It is pointed out here that prior to surgery the Complainant informed KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED that he has cashless insurance coverage for Rs.5,00,000/-. The said Hospital authorities obtained prior approval for cashless surgery from both Opposite Parties and on behalf of 1^st Opposite Party, the 2^nd Opposite Party approved Rs.5,00,000/- as per the insurance Coverage and the same was also informed to the Complainant by 2^nd Opposite Party vide their SMS dated 03.10.2019. Apart from that the 2^nd Opposite Party on behalf of 1^st Opposite Party issued cashless authorisation letter on 03.10.2019 to the KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED as well as to the Complainant categorically informed that they approved Rs.5,00,000/- for Complainant's son's surgery. It is pointed out here that before approving the amount, both Opposite Parties had verified the nature disease medical cost and treatment of the Complainant's son in this regard.

4.     It is submitted that based on the approval, KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED conducted operation on 01.10.2019 and the Complainant's son was discharged 03.10.2019.During the Surgery a device is called internal implant with electrode manufactured by "ADVACNED BIONICS" was permanently fixed his left ear inside and an external device is called sound processor was fixed behind his left ear. The external device like connecting cables, batteries should be replaceable often till life time of the Complainant’s son. The cost of "ADVACNED BIONICS" internal implant device is Rs.11,44,500/- the most expensive in comparing to total surgery expenses.

5.  It is submitted that after the surgery the medical bill for Rs.13,44,500/- was produced along with entire medical records to the Opposite Parties directly by the KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED. Out of Rs,13,44,500/- the Complainant paid a sum of Rs.8,44,500/- and remaining Rs,5,00,000/- should be paid by the Opposite Parties as per the their earlier approval. But it appears from the letter dated 06.01.2021 of 2^nd  Opposite Party, they paid only a sum of Rs.1,92,117/- directly to KKR ENT H0SPITAL AND RESEARCH INSTITUTE(P) LIMITED out of Rs,5,00,000/- and refused to pay remaining amount of Rs.3,07,883/- without giving any reason for reducing the already approved amount and undeniably there was no prior opportunity was given to the Complainant before taking such unsustainable and unreasonable decision. On receipt of such communication, the KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED compelled the Complainant to pay the balance of Rs.3,07,883/- otherwise further
treatment would not be done to the Complainant's baby. Hence, without any option, the Complainant paid Rs.3,07,883/ on 13.03.2021 to KKR ENT HOSPITAL AND RESEARCH INSTITUTE (P) LIMITED.

6.     Apart from the emails, a legal notice dated 06.08.2021 was served to Opposite Parties on 10.08.2021 calling upon them jointly or severally liable to pay the remaining amount of Rs.3,07,883/- with 18 % interest from the date of payment done by the Complainant to the Hospital but evoked no response from them. Hence the complaint.

II.     Written  version filed by the 1^st Opposite Party in brief is as follows:

7.     The Opposite Party submitted that it has issued a NEW INDIA FLEXI FLOATER GROUP MEDICLAIM POLICY to M/s.Expleo Solutions Limited in which Complainant and his family members were covered. The Sum Insured opted by the Complainant under the said Policy No. 97000034190400000043 was Rs.5,00,000/-. The coverage under the policy is subject to the terms and conditions of the policy and the Complainant conveniently suppressed to file the terms and conditions of the policy which is crucial for ascertaining the admissibility of any claim.

8.     This Opposite Party submitted that the Cashless approval was granted to the extent of the Sum Insured i.e. Rs.5,00,000/-. The Cashless approval for the threshold of Rs.5,00,000/- would take care of those expenses that are covered under the policy. What is not payable under the policy cannot be claimed by the Complainant on the pretext that cashless approval is granted for a sum of Rs.5,00,000/-.

9.     It is submitted that cashless approval of Rs.5,00,000/- cannot be construed for all expenses but is meant only for those expenses that are payable under the policy. The terms and conditions of the Policy is placed herewith as Annexure A Clause 3.8 of the Policy terms and Conditions defines “Cashless Facility and is reproduced hereunder
Clause 3.8 - CASHLESS FACILITY means a facility extended by the insurer
to the Insured where the payments, of the costs of treatment undergone
by the Insured in accordance with the policy terms and conditions, are
directly made to the network provider by the Company to the extent pre-
authorization approved.

10.    This Opposite Party submitted that based on the treatment records submitted, it was found that out of the total medical expenses of Rs.13,44,500/- incurred by the Complainant, the major component of Rs.11,44,500/- was the expenses incurred towards Cochlear Implant charges. The Cochlear implants is specifically excluded under the Policy and the relevant clause is reproduced hereunder.

4.4 Permanent Exclusions: Any medical expenses incurred for or arising
out of

"4.4.20 Cost of braces, equipment or external prosthetic devices, nondurable implants, eyeglasses Cost of spectacles and contact lenses hearing aids including cochlear implants, durable medical equipment"

11.    The Medical computation sheet detailing the allowable payment under the policy has been sent to the Hospital as well as the Complainant. Therefore, the aforesaid submissions would explicitly demonstrate that the Opposite Parties has settled the claim as per the terms and conditions of the Policy. Hence prayed to dismiss the complaint.

III. The 2^nd Opposite Party was set ex parte:

 Notice was sent to the 2^nd Opposite Party and was duly served on 23.05.2022. Despite the notice being served the 2^nd Opposite Party failed to appear before this Commission either in person or by an Advocate on the hearing date i.e.23.05.2022.On that day, the 2^nd Opposite Party was called absent and set ex-parte. Subsequently, the case was proceeded to be heard on merits.

IV. The Complainant has filed his proof affidavit, in support of his claim in the complaint and has filed 12 documents which are marked as Ex.A-1 to A-12. The 1^st Opposite Party had submitted its proof affidavit and Exs.B-1 & B-2 were marked on its side. Both side written arguments filed.

V.Points for Consideration:-

 

1. Whether there is any deficiency in service on the part of the Opposite Parties?

 

2. Whether the Complainant is entitled for the reliefs sought for?

 

3. To what other relief, the Complainant is entitled to?

 

POINT NO. 1 :-

 

12.    The contention of the Complainant is that he and his family members are covered under the cashless insurance scheme vide policy No. 970000/34/19/04/000 00043 of the 1^st Opposite Party.  The Complainant’s son S. Tamizh Nilavan, aged 4 years was diagnosed for Bilateral Hard of Hearing with delayed speech, for which he had to undergo cochlear implant surgery. He was admitted to KKR ENT Hospital AND Research Institute (P) Limited on 30.09.2019, where the hospital conducted operation on 01.10.2019 and the Complainant’s son was discharged on 3.10.2019.  Out of the total medical bill of Rs.13,44,500/- the Complainant paid a sum of Rs.8,44,500/- as the remaining amount of Rs.5,00,000/- is to be paid by the Opposite Parties as per the policy. But the 2^nd Opposite Party had paid a sum of Rs.1,93,117/- directly to the Opposite Party and refused to pay the remaining amount of Rs.3,07,883/- without assigning any reason, for which act of the Opposite Parties, the Complainant issued email communications to the Opposite Parties on 10.6.2021 and 6.7.2021 followed by a legal notice dated 6.8.2021.  Even after receipt of the communications the Opposite Parties failed to respond.

13.    The 1^st Opposite Party contended that they had issued a  NEW INDIA FLEXI FLOATER GROUP MEDICLAIM POLICY to M/s.Expleo Solutions Limited in which Complainant and his family members were covered.
Further contended that as per clause 3.8 of the policy terms and conditions, cashless facilities means, the facility extended to the insured where the payments of the cost of treatment undergone by the insured in accordance with the policy terms and conditions.  Further submitted that based on the treatment records submitted, it was found that out of the total medical expenses of Rs.13,44,500/- incurred by the Complainant, the major component of Rs.11,44,500/- was the expenses incurred towards Cochlear Implant charges. The Cochlear implants is specifically excluded under the Policy. Only after the submission of the medical records and bills, the Opposite Parties were able to validate allowable expenses as per the terms of the policy and since implant expenses and non medical expenses are excluded the same were disallowed and the amount of Rs.1,92,117/- towards surgical and medical expenses was duly paid by the opposite parties.

14.    It is an undisputed fact that the Complainant and his family members are covered under the Medi claim policy issued by the 1^st Opposite Party, in which the 2^nd Opposite Party is a Third Party Administrator. As per Ex.A1, the Complainant has received SMS from the 2^nd Opposite Party approving a sum of Rs.5,00,000/- on 1.10.2019. As per Ex.A2, which is the cashless authorisation letter dated 3.10.2019 the 2^nd Opposite Party for the claim made by the Complainant for the treatment of his son Tamizh Nilavan, who was diagnosed for B/L        Profound hearing loss, and for the proposed line of treatment of surgical management has approved a sum of Rs.5,00,000/-. 
The KKR ENT Hospital Research (P) Limited has issued a medical bill for a total sum of Rs.13,44,500/-, out of the total amount a sum of Rs.8,44,500/- was paid by the Complainant as evident from Ex.A4. While the Opposite Parties had to pay the balance amount of Rs.5,00,000/- which is the approved amount, the Opposite Parties had paid a sum of Rs.1,92,117/-.  Hence the Complainant was compelled to pay the balance amount of Rs.3,07,883/- to the hospital on 13.3.2021.  The Complainant had issued an email dated 24.7.2021 to the Opposite Parties to pay the remaining amount of the approved insurance amount as per Ex.A7. The Complainant had also issued a legal notice dated 6.8.2021 Ex.A9 to the Opposite Parties to pay a sum of Rs.3,07,883/- with interest and for compensation.

15.    Upon discussions made above, and on perusal of records it is seen that the Opposite Parties had authorised and approved a sum of Rs.5,00,000/- towards cashless Medi claim for the treatment undergone by the Complainant’s son Tamizh Nilavan, after going through the medical records and the line of treatment to be given to the Complainant’s son.  However the Opposite Parties had paid a sum of Rs.1,92,117/- to KKR ENT Hospital AND Research Institute (P) Limited out of Rs.5,00,000/-.  For the communications issued by the Complainant to the Opposite Parties, the Opposite Parties had not made any reply to the Complainant.  Even for the legal notice issued by the Complainant on 06.08.2021 which was duly received by the Opposite Parties on 10.08.2021, the Opposite Parties neither made any payment as sought for by the Complainant or issued any reply assigning reasons for  non payment of the balance amount.  For the first time in the written version, the 1^st Opposite Party has taken the defence that Cochlear implantation is excluded under Clause 4.4.20 of the policy document.  The contention of the Complainant is that he was unaware of the exclusion clause and only based on the approval given by the Opposite Parties, he had admitted his son for Cochlear surgery.  For which the Opposite Parties contended that  the policy was issued in favour of the insured M/s. Expleo Solutions Limited and insured has never stated that they had not received the policy terms and conditions.  Further submitted that the policy terms and conditions had been issued to the insured/employer and that the Complainant had falsely claimed ignorance of the terms and conditions of the policy.

16.    The Complainant relied upon the judgement of the Hon’ble Supreme Court, New Delhi reported in (2000) 2 Supreme Courts cases 734, Modern Insulators Limited –Vs Oriental Insurance company limited wherein it was held that the terms and conditions of the standard policy where the exclusion clause were included were neither the part of the contract insurance nor disclosed to the appellant the respondent cannot claim the benefit of the exclusion clause.  Even in the present case, the Opposite Parties had failed to show that the terms and conditions of the policy was issued to the insured, even otherwise the Opposite Parties had not informed about the exclusion clause when the claim was made to them and after the issuance of email communications and legal notice to the Opposite Parties and hence the Opposite Parties having not disclosed about the exclusion clause to the Complainant cannot claim the benefit of the exclusion clause.  The act of the Opposite Parties in not making/paying the entire amount as approved by them to the Complainant amounts to deficiency in service.  Accordingly point No.1 is answered.

POINT NOs. 2 &3 :-

17.    As discussed and decided in Point No.1 that the Opposite Parties have committed deficiency in service, the 1^st and 2^nd Opposite Parties are liable to pay a sum of Rs.3,07,883/- with interest at the rate of 9% per annum from 13.3.2021 till the date of realisation and to pay a sum of Rs.25,000/- as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of litigation of Rs.5000/- within 8 weeks from the date of receipt of this order, failing which the above amount of Rs.3,07,883/- will carry interest at the rate of 12% per annum from the date of receipt of this order to till the date of realisation.  Accordingly Point Nos 2 & 3 are answered.

  In the result, this complaint is allowed in part. The 1^st and 2^nd Opposite Parties are directed to pay a sum of Rs.3,07,883/- with interest at the rate of 9% per annum from 13.3.2021 till the date of realisation and to pay a sum of Rs.25,000/- as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of litigation of Rs.5000/- within 8 weeks from the date of receipt of this order, failing which the above amount of R.3,07,883/- will carry interest at the rate of 12% per annum from the date of receipt of this order to till the date of realisation.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 6^th June 2023.

 

 

S. NANDAGOPALAN                                                        T.R. SIVAKUMHAR                                                  B.JIJAA

      MEMBER II                                                                       MEMBER I                                                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	01.10.2019	Xerox copy of the cashless medical claim approval SMS given by the 2nd opposite parties.
Ex.A2	03.10.2019	Xerox copy of cashless medical claim approval letter of the 2nd opposite party.
Ex.A3	03.10.2019	Xerox copy of inpatient credit bills for Rs.13,44,500/-.
Ex.A4	03.10.2019	Xerox copy of the receipt for Rs.8,44,500/- paid by the Complainant.
Ex.A5	03.10.2019	Xerox copy of the discharge summary.
Ex.A6	13.03.2021	Xerox copy of payment receipt for Rs.3,07,883/-.
Ex.A7	10.06.2021	Xerox copy of the email to the opposite parties.
Ex.A8	06.07.2021	Xerox copy of the email to the opposite parties.
Ex.A9	06.08.2021	Xerox copy of the Advocate notice to the opposite parties.
Ex.A10	10.08.2021	Xerox copy of the postal acknowledgement cards.
Ex.A11		Xerox copy of the photo’s of the Complainant’s son.
Ex.A12		Xerox copy of photo showing the COCHLEAR IMPLANT   surgery.

 

List of documents filed on the side of the 1^st Opposite Party:-

 

Ex.B1		Xerox copy of policy and its and terms and conditions.
Ex.B2		Xerox copy of  Medical computation sheet.

 

 

S. NANDAGOPALAN                                                         T.R. SIVAKUMHAR                                                B.JIJAA

      MEMBER II                                                                     MEMBER I                                                          PRESIDENT