Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-404/2016
Sh. Inder Mohan Khanna
S/o Late H.C. Khanna
R/o S 1/20 Old Mahavir Nagar
Tilak Nagar,
New Delhi-110018 ...Complainant
Versus
OP1: Oriental Insurance Company
88, Janpath, Ground Floor,
Connaught Place
New Delhi-110001
OP2: B.L.K. Hospital
Near Rajendra Place
Metro Station
New Delhi-110060
OP3: Medddi Assist
B-20, Sector-2, Noida
Near Sector-15, Metro Station
Opp. HCL Comnet Building
Noida, U.P. 201301 ...Opposite Party
Senior Citizen Case
Date of filing: 09.11.2016
Order Reserved on: 20.12.2022
Date of Order: 12.01.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1 (Introduction to case of parties) : Precisely, the allegations in the complaint are dispute of deficiency in services and unfair trade practice on the part of OPs as the complainant/insured was charged extra amount of Rs. 16,916/- on account of non-payable on the first medi-claim in respect of wife of complainant and in the second medi-claim not only non-payable amount of Rs. 27,626/- were charged but also excess amount of Rs. 800/- was charged, which was not supposed to be charged by them. OP2/hospital had received the amount from OP3/TPA of OP1/Insured entire amount was not paid to the complainant. That is why, the said amount charged from complanant as well as compensation of Rs. 1,00,000/- on account of harassment is being claimed. Whereas the claim was opposed by insurer/OP1 that there was delay in lodging the claim after TPA settled the claim as well as there was an arbitration clause in the insurance policy. The OP2 has also opposed the complaint that nothing was charged extra but claim was adjusted as per authorization/amount actually received from TPA/OP3. There was no appearance and evidence by OP3 (being was ex-parte after service of notice).
1.2. It is relevant to mention that this case was initially filed as complaint case no. 441/2014 on 06.06.2014 before CDRF-VI, New Delhi, however, pursuant to directions dated 10.08.2016 in TC No.-36/2016, the complaint was transferred to CDRF-VIII, Central, consequently the present CC No.-404/2016 was assigned.
2. (Matrix of the case of complainant ) : The complete case of complainant, as set up, is that complainant had bought insurance policy vide Medi-Assist ID No. 5008446485 from OP1 since the year 2010, the subject policy is for the tenure w.e.f. 08.01.2014 to 07.01.2015 (Policy is Annex.-B/Exh. CW1/B) against payment of premium, he is visually handicap (Annex.- A/ Exh. CW1/A). The complainant's wife Smt. Indu Khanna had some health problem, she consulted Dr. Pawan Mehta of OP2, who diagnosed and referred her to OP2/ B.L.K. Memorial Hospital, where tests were prescribed in writing and some tests were got done from different diagnostic centers, ultimately she was suggested kidney operation by the doctors of OP2.
She was admitted in the hospital/OPS on 17.12.2013 for Laparoscopic Radical Adrenalectomy under the care of Dr. Pawan Mehta with medi-claim facility of OP3. She was discharged after treatment on 01.01.2014. The Bill was Rs. 1,84,421/- and OP2 had received authorisation for Rs. 1,81,441/-, there were some remarks by the OP3 to the OP2 with regard to certain non-medical expenses etc. The total bill was Rs. 1,84,421/- and at the time of discharge, OP2 had charged Rs. 16,916/- from the complainant since the amount received by them from OP3 was Rs. 1,55,528/-. When the complainant contacted OP3, then it was revealed that in fact OP3 had transferred amount of Rs. 1,68,745/- in the account of OP2 (the claim settlement advice is Annex.- C/ Exh. CW1/C) , there was discount of Rs. 11,976.75p given by OP2 to OP3.
Similarly, when the complainant had to get re-admitted his wife on 05.03.2014 in hospital of OP2 because of some infection/puss developed of previous treatment, she was discharged on 11.03.2014, the total bill raised by OP2 this time was Rs. 1,90,226/- (Annex.-D/ Exh. CW1/D colly. is invoice & claim settlement advice). The complainant came to know, at the time of final approval that OP3 wrongly charged 10% co-payment and policy excess charges, which were not applicable and OP3 had sent the remarks to OP2. It was a comprehensive PNB Oriental Royal Medi-claim policy, under which the deduction were not applicable. Moreover, OP2 has also charged Rs. 27,626/- from the complainant on account of non-payable as per instructions of OP3 ((Annex.- E/ Exh. CW1/E is invoice no. 1314CR35045). As per settlement advice receipt of OP3, the payable amount is Rs. 1,87,413/- and sum of Rs. 1,67,284/- was transferred by OP3 in the account of OP2 on 04.04.2014, on the instruction of OP1.
The complainant in his replication opposed the plea of opposite parties that neither there was any substance with regard to arbitration clause or any delay but the amount was charged from him wrongly and contrary to the provisions of terms of policy, the claim was valid and nothing was claimed by him which was beyond the terms of policy contract.
3.1 (Matrix of case of OP1) : The OP1/ Insurer opposed the complaint by splitting the written statement into two parts - being preliminary objections [as complainant came before the Forum without clean hands, the claim is exorbitant and irrational, there was delay in informing the insurer beyond 48 hours of admission or discharge from the hospital and there is an arbitration clause 5.11 in the policy terms, it is triable by the arbitrator as per the Arbitration and Conciliation Act, 1996] and on reply on merits - it is composite reply for paragraphs [viz. Para 1 to 3 & para 4 to 10] by reiterating the preliminary objections as well as by supplementing once TPA has settled the claim of the complainant and TPA had sent the payment as full and final payment, the complainant failed to raise any objection/ disagreement with that settlement within 7 days, the claim not tenable. The complaint is liable to be dismissed and it was filed just to gain sympathy of this Commission.
3.2: (Matrix of case of OP2): The OP2 does not dispute about the admission and discharge of complainant's wife on two occasions as well as treatment given to her. it is also supplemented that there is no deficiency in service or any unfair trade practice. However, OP2 opposed the allegations put against it of charging of non-medical expenses or other charges from the patient. By clarifying that total bill was Rs. 1,84,421/-, hospital gave 10% discount on final bill except medicine and consumables, net bill amount was Rs. 1,72,444/- and amount received from TPA was 1,55,528/-, that is why balance amount of Rs. 16,916/- was charged from the patient on account of non-payable items by the TPA. Similarly, the other final bill was Rs. 1,90,226/- and final bill approval on behalf of TPA was of Rs. 1,74,604/- with special remark full and final, 10% co-pay applicable as per policy was silver plan as well as non medical expenses were to be collected from the patient only, that is why after all adjustments, balance amount of Rs. 27,626/- was charged from the patient on account of non-payable item by TPA. It was requested to dismiss the complaint.
4. (Replication of complainant) : The complainant filed replications to the reply of OP1 and OP2, by referring and explaining the facts mentioned in the complaint as correct.
5. (Evidence): Complainant Inder Mohan Khanna filed his detailed affidavit of evidence, while referring the documents accompanying with the complaint. Similarly, Shri Vipin Kumar, Senior Divisional Manager of OP1 filed the affidavit, which is on the line of reply, it reproduces the preliminary objections as well as reliance is placed on PNB Oriental Royal Medi-claim Insurance Policy with family floater to emphasize arbitration clause of 5.11. OP2 through its Dr. Sanjay Mehta filed a brief affidavit, while relying upon the facts mentioned in the reply that the bills were issued and only balance amount was charged from the account of non-payable items by TPA.
6. (Submission of Parties) : Complainant's wife Ms. Indu Khanna (in fact she has undergone the treatment) made oral submission for complainant. Shri Rahul Sharma, Advocate for OP2 made oral submissions but no oral submission on behalf of OP1, its written submissions are on record, the same are being considered to appreciate the rival contention. The rival contentions will be dealt at appropriate stage of discussion.
7.1 (Findings) : The record is considered, inclusive of documentary record, which is material for the purposes of the present dispute arisen. In nutshell, one issue is with regard to arbitration clause no.5.11 and other issue is of discount & amounts charged from the complainant on account of non-payable despite such amount was received by OP2 from OP3.
7.2: (Reg- Arbitration Clause): This point is raised by the OP1 that since there is an ‘arbitration clause’ in the insurance policy, it constitutes an arbitration agreement, therefore, the matter is to be adjudicated by an Arbitrator; the compliant is liable to be dismissed as the Commission lacks jurisdiction. Whereas the plea of complainant is the present Commission is competent to decide the complaint
To trace answer to this issue, it is appropriate to discuss this issue from the point of the Arbitration and Conciliation Act 1996 as well the Consumer Protection Act, whether erstwhile Act of 1986 or the current Act of 2019 apart from the law laid down in precedents. It is matter of discretion of parties to enter into arbitration agreement or to include arbitration clause in the agreement to resolve the dispute, if so arises, through Arbitrator. The Arbitral Tribunals are private fora, which are chosen by the parties out of their volition to get determined their dispute, in place of public form of Civil Court and other tribunals. When, there is such agreement between the parties, matter is to be referred to Arbitrator by the judicial authority in terms of section 8 of the Arbitration and Conciliation Act 1996 in case civil suit is filed in the court. The Arbitrator has to follow the provision of the Arbitration and Conciliation Act 1996. Arbitrator gives its final findings as an Award. There is also remedy provided in the Act, 1996 itself if one is feeling aggrieved from such Award, however, it is subject to fulfilling the conditions laid down. Section 34(2)(b) and sec.48(2) of the Arbitration and Conciliation Act 1996, makes it clear that arbitral award may be set aside if the court finds that subject matter of the dispute is not capable for settlement by the arbitration under the law for the time being in force or award is in conflict with the public policy in India.
The Consumer Protection Act 1986 does not specify non-arbitral matters. However, on the principle that adjudication of certain categories of proceedings are reserved by legislature exclusively for public fora as a matter of public policy, e.g. dispute relating to rights and liabilities which give rise to or arise out of criminal offences; matrimonial disputes relating to divorce, judicial separation, child custody, restitution of conjugal rights; guardianship matters; insolvency and winding up matters; testamentary matters (probate, letter of administration and succession certificate) and eviction of tenancy matters, which are governed by special statute, as held in Booz Allen and Hamilton Inc Vs SBI Home Finance Ltd 2011 5 SCC 532.
A situation, alike question in hand, had arisen in M/s Emaar MGF Land Ltd Vs Aftab Singh [decided on 10.12.2018 in Review petition (C) no.2629-2630 in civil appeal no. 23512-23513] wherein the revision petition was dismissed by holding that the arbitration clause in buyer's agreement is not a bar to resolve dispute by Commission, while relying upon the Act that provisions of Act are in addition to and not in derogation of other law in force (sec. 3 of Act 1986) and also on the basis of previous decisions inclusive of case Booz Allen and Hamilton Inc (supra). Sec. 100 of the Act 2019 is identical to section 3 of erstwhile Act 1986. Since, section 8 of the Arbitration and Conciliation Act 1996 was amended in 2015 and it was also discussed that it would also not affect the position because of amendment of 2015 in section 8(1) of the Arbitration and Conciliation Act 1996, that notwithstanding any decree or order of Supreme Court or other Court, the matter is to be referred to arbitration unless court finds prima facie that no valid arbitration agreement exists. To say, in Emaar MGF case, the reasons and objects of Bill of proposed amendment of 2015 in the Arbitration & Conciliation Act 1996, was also discussed to ascertain what was impetus for proposed amendment. It was discovered that in order to smooth and expedite the arbitration proceedings by least judicial intervention from the point of filing copy of agreement, section 8 was amended. It is never the move in objective of amendment to oust the jurisdiction of Consumer Commissions.
The Consumer Protection Act gives definition of 'service', it includes 'insurance' and it is within the policy of legislature that it has been kept within the purview of the Consumer Protection Act. In this present case, if the contention of OP1 is accepted, because of an 'arbitration clause' in the insurance policy, then it would defeat the very objective of the Consumer Protection Act 'of better protection of interest of consumers' and it would also mean by 'inserting arbitration clause' in the insurance policy, would implies that agreement between the parties would waive or forfeit the rights of Consumers from filing the consumer complaints or from invoking the Consumer Protection Act, which is not the intention of legislation enshrined in the Preamble of the Act 1986 or Act 2019. Thus, it is held that arbitration clause in the insurance policy would not bar from filing Consumer complaint nor it would be construed to oust the jurisdiction of the Consumer Commission as provisions of the Consumer Protection Act are in addition to other provisions of other law and not in derogation thereof. In precedent Skypak Courier Ltd Vs. Tata Chemicals 2000 5 SCC 294, it was held "that even if there exists an arbitration clause in an agreement and complaint is made by consumer in relation to a certain deficiency of services, then the existence of an arbitration clause will not bar to entertain the complaint by Redressal Agency, constituted under the Consumer Protection Act since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force"
Accordingly, this point is determined against the OP1 and the consumer's complaint cannot be dismissed on this ground. This District Consumer Dispute Redressal Commission has jurisdiction to adjudicate this consumer's complaint despite arbitration clause no.5.11 in the terms of the insurance policy.
7.3 (Reg- other issues): In fact, the entire controversy can be set at rest by looking into the documentary record, the same are tax invoice of January.2014, TPA authorisation and claim settlement advice and tax invoices of March, 2014, TPA authorisation and claim settlement advice, since the relationship of insured & insurer between the complainant & OP1, period of policy, entitlement of complainant as well as twice treatment of complainant's wife at hospital of OP2 are not disputed. OP3 TPA of OP1 is also not disputed being mentioned on the face of policy itself. To simply put, in the first invoice bill, the amount was Rs. 1,84,421/- and non-payable amount was Rs. 2,980/- and net payable amount was Rs. 1,81,441/- as per claim settlement advice of OP3. Whereas an amount of Rs. 16,916/- was asked from the complainant by OP2 Hospital to deposit it on account of non-payables. Similarly, in the other claim settlement advice of 04.04.2014, the amount of bill was of Rs. 1,90,226/- and non-payable amount was of Rs. 2,810/- and net payable amount was Rs. 1,87,416/- as per claim settlement advice of OP3, whereas an amount of Rs. 27,626/- was asked from the complainant by OP3 to deposit it on account of non-payables. The complainant had deposited such amounts apart from Rs. 800/-extra being asked.
The record clearly shows that although the amount of non-payable was Rs. 2,980/- in the first bill and Rs. 2,810/- in the second bill as per claim settlement advice but the complainant was asked to deposit amounts Rs. 16,916/- and Rs. 27,626/- respectively, apart from Rs. 600/-, which was also deposited by him to the tune of Rs. 45,342/-. The said settlement claim advice issue by OP3 to OP2 also reflects that there was discount allowed transaction inter-se between OP2 and OP3. OP3 is TPA of OP1 and OP3 was under the instruction of OP1. However, inter-se arrangement between OP3 and OP2 of discount allowd or any agreement, if so, would not prejudice the rights of complainant nor the discounts would be at the cost of complainant. Otherwise, there is no proof of terms and conditions in the insurance policy that the discount to be allowed inter-se between OP2 & OP3 would be recoverable under the non-payable item from the complainant. In the circumstances appearing, what happened is that the OP2 allowed discount to OP3, thus the amount allowed in settlement claim advice of OP3 was after adjustment of non-payable that too was reduced by discount allowd and OP2 is treating that amount (reduced after discount) as actually allowed by the TPA, then complainant was asked to pay the balance amount on account of non-payable, which OP1 is also confirming. In case, the OP2 was comfortable of its own or on request of OP3 or otherwise to give discount to OP3, then OP2 has its own discretion but not at the cost of claim of complainant.
Therefore, complainant has succeeded to establish complaint against OPs that OP2 took amount of Rs. 44,542/- (viz. Rs. 16,916/- in the first bill and Rs. 27,626/- in the second bill) from the complainant, which it had received from OP3 after adjustment of non-payable amounts in the claim settlement advices. The complainant is entitled for return back his amount of Rs. 44,542/- from OP2/Hospital and also from OP3 ( being TPA of OP1) & OP1, it was not fair on the part of OP2 not to deliver the benefit of policy to the complainant and it also amounts to the deficiency in service on its part.
7.4: The OP2 has further charge an extra amount of Rs. 800/- from the complainant by construing it is a silver policy and under its term the amount was to be charged, whereas it has not been established by OPs that the insurance policy was silver cover policy to levy such charges. Therefore, there is again deficiency in service on their part to pay/ return said amount of Rs. 800/- to the complainant. OP1 had also not established that there was delay on the part of complainant for not approaching for claim in time.
7.5: The complainant has approached the OPs to return his amount, however, it was not returned ultimately he had to file the complaint, for which he has been prosecuting throughout. Since the complainant has established his valid claim, thus he deserves damages/compensation which is quantified as Rs. 15,000/- as a lump sum amount in his favour and against the OPs jointly and severally.
7.6: Accordingly, the complaint is allowed in favour of complainant and against the OP1, OP2 and OP3 to pay a sum of Rs. 60,342/- (i.e. Rs. 45,342/-+ Rs. 15,000/-) jointly and severally within 30 days from the date of receipt of this order.
8. Copy of this sent/provided forthwith to the parties free of cost as per Regulations within 4 days.
9: Announced on this 12th day of January, 2023. [ पौष 22, साका 1944].
