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.1,05,000/- alongwith interest thereon @ 18% p.a. from the date of claim to the Opposite Parties i.e. 03/12/2008 till actual payment to the Complainant.  It is also prayed that the Opposite Parties be directed to pay Rs.50,000/- by way of compensation towards physical harassment, mental torture and agony suffered by the Complainant and cost of Rs.25,000/- towards the conveyance, telephonic charges and visit charges and any other reliefs.

 2)        The Complainant alleged that she is a subscriber of Mediclaim Policy offered by the Opposite Parties from 2007 without any gap.  The policy relevant to the facts of this case was valid for the period 30/03/2009 till midnight of 30/03/2010 under which the sum assured was Rs.3 Lacs.  The complaint is filed on behalf of the Complainant by his Constituted Attorney Shri. Deepak Jadhav.  The copy of the said power of attorney is marked as Exh.‘A’.  The copy of mediclaim policy issued by the Opposite Party is marked as Exh.‘B’. It is submitted that around the year 2005-06 the Complainant gradually began to feel pain in both the knee joints.  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 26/09/2008 to 16/10/2008 i.e. for total period of 21 days continuously for duration of at list 1 hour 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 was 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 started to work and effected after one or 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 03/12/08 submitted her claim for Rs.1,05,000/- to the Opposite Parties with all necessary documents which are marked at Exh.‘C’.  According to the Complainant, the TTK Health Care TPA Pvt. Ltd. vide letter dtd.15/12/2008 repudiated the claim of the Complainant on the ground that – 1) the said claimant availed treatment at SBF Health Care for severe Osteoarthritis both knees. 2) Patient availed treatment i.e. Quantum Magnetic Resonance Therapy which is an experimental and unproven treatment and therefore, as per the terms and condition of Medical Policy the claim is rejected under Clause 4.4.19 which excludes experimental treatment and unproven treatment (not recognized by Indian Medical Council).

 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.  The Complainant then on 26/04/2010 issued demand notice for reimbursement of her claim.  The copy of the said notice is marked at Exh.‘D’.  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 Party is required to allow genuine claim submitted by her.  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 she had suffered mental agony as well as physical hardship, torture 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 her favour. 

 5)        The Opposite Parties by their 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 Parties.

 6)        The Complainant has filed rejoinder of written statement and affidavit of her Constituted Attorney. The Opposite Parties have filed affidavit of Shri. K.S. Kulkarni, Sr. Divisional Manager of the Opposite Parties.  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 Parties.  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 her 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 Party 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 by 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 Parties 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 26/09/2008 to 16/10/2008 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  she  is entitled for treatment charges and interest thereon from the date of claim i.e. 03/12/08 as well as compensation and cost of the proceeding ?

Ans.            :   Yes, proved.

 Point No.3  :  Whether the Complainant proves that she is entitled for Rs.25,000/- towards conveyance, telephonic charges, etc. ?

Ans.            :   Not proved.

 Point No.4  :  What order ?

Ans.            :  As per final order.

9)  Point No.1 & 2 :  The Opposite Parties has specifically come out with the case that as the Complainant has obtained treatment at SBF Health for severe Osteoarthritis of Both Knees and she availed treatment i.e. Quantum Magnetic Resonance Therapy which is an experimental and unproven treatment (Not recognized by Indian Medical Council) she 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 treatment 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 she had incurred an expenditure of Rs.1,05,000/- 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 documents 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.1,05,000/- for the treatment which she 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.1,05,000/- 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.1,05,000/- 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.            

10)  Point No.3 & 4  :  The Complainant has alleged that she is entitled for an amount of Rs.25,000/- from the Opposite Parties towards conveyance telephonic charges and visit charges.  However, the Complainant has not produced any documentary evidence to establish such claim against the Opposite Parties.  We therefore, hold that the claim of Rs.25,000/- made by the Complainant against the Opposite Parties for the above purposes is not required to be granted.  In the result we answer point no.3 as not proved and pass the following order –

O R D E R

i.                    Complaint No.221/2010 is partly allowed against Opposite Parties.

ii.                 Opposite Parties are directed to pay Rs.1,05,000/- (Rs. One Lac Five Thousand Only) to the Complainant with interest @ 6% p.a. from 03/12/2008 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.