Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.272 dated 28.07.2016
C1. Mrs. Shivdhara Gupta w/o late Sh. Mukesh Gupta
C2. Miss Bhoomika Gupta, Minor
C3. Master Yudhishthar Gupta, Minor
C4. Master Yugandhar Gupta, Minor
[C2 to C4 through their mother-C1]
All r/o : B-283, Yojna Vihar, Delhi-110092 ...Complainants
Versus
OP1. Oriental Insurance Company Limited (through its Director)
Having its regd. Office at : Oriental House-A-25/27, Asaf Ali Road,
New Delhi-110002
OP2. M/s MD India Healthcare Services TPA Pvt. Ltd.(through its Director)
having Regd. Office at : 18/13, W.E.A.,
Ganga Plaza,Pusa Lane, Karol Bagh, New Delhi-110005 .Opposite Party
Date of filing: 28.07.2016
Coram: Date of Order: 10.12.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.1)
- [Introduction to case of parties] – The complainants have grievances of deficiency of services against OPs that despite having Happy Floater Mediclaim Insurance Policy no.252108/48/2014/1359 valid from 28.03.2014 to 2.03.2015 [hereinafter referred as insurance policy] from OP1/Insurer, the OP1 failed to reimburse medical expenses of episode of treatment and hosiptalisation on 15.09.2014, 16.09.2014 to 18.09.2014 of Shri Mukesh Gupta (briefly insured- deceased or patient). The OP1 had declined the claim orally by invoking exclusion clause 4.8 of the policy. Whereas Dr Neeraj Jain [under whom supervision that treatment was being rendered to the patient], furnished report that patient used to take some alcohol and it was also given up too by 4 to 5 months back before his initial admission in the hospital ( which was on 04.09.2014). Since the claim of Rs.73,420/- was declined, that is why the complaint for reimbursement of claimed amount, visiting expenses of Rs.1,500/- and compensation of Rs.25,000/- in lieu of mental agony besides other appropriate reliefs.
- The OP1 opposed the complaint vehemently that of want of any deficiency of services as well as each insurance policy is a insurance contract, the parties are bound by the terms and conditions of the policy being sacrosanct and OP1 followed it. The complainants' subject claim is not covered by virtue of exclusion clause 4.8 of the policy and that is why the claims were properly declined and it was also informed to the complainants.
- It is relevant to mention that this complaint is by Ms. Shivdhara Gupta/ complainant no.1 and also for her other three minor children arrayed as complainant nos. 2, 3 & 4 through complainant no.1 being their mother and natural guardian. All of them have been insured in the insurance policy beside Sh. Mukesh Gupta (since deceased, husband complainant no. 1).
2.1. (Case of complainant) – The complainant no.1’s husband took medical insurance policy in the year 2007 for himself and his family from National Insurance Co. Ltd. However, in the year 2008 the insurance policy was portable to present Insurer/OP1/Oriental Insurance Co Ltd. The insurance policy was purchased from the OP1 pursuant to inducements and promises assured by broker Sh. Purushottam Dass of OP1 to her husband, then policy of medical insurance cover - Happy Family Flouter Policy-Silver Plan- was purchased. The policy has been subscring for the last 8 years in his name and his family by making regular payment of premium without any fault. The policy indemnify for medical expenses for hospitalization, surgery and other treatments. The said policy was also renewed on 16.03.2014 through broker Sh. Purushottam Dass Aggarwal for a period of one year from 28.03.2014 to 27.03.2015 for sum insured of Rs. 4 lakh against payment of premium of Rs. 12,745/- being the subject policy.
2.2.1 The insured Mukesh Gupta felt lower abdomen pain, he went to Pushpanjali Medical Centre for check-up and after his examination, he was advised for hospitalization. He was admitted on 04.09.2014 for treatment of acute abdomen pain in the said medical centre and he remained admitted till his discharge on 10.09.2014. The total expenses of Rs. 1,10,931/- were incurred by him but its claim was declined by the OP1, that is why CC no. 302/2015 was filed against the OP1 before Consumer Forum.[It is relevant to mention that during the phase of final arguments of this matter, it was apprised that CC no. 302/2015 was disposed off as contentious matter by Ld. Predecessors and then it was discovered that it was decided by detailed order dated 24.08.2017).
2.2.2 After discharge of Sh. Mukesh Gupta from said medical centre, he was undergoing continuous treatment under the guidance of Dr. Neeraj Jain of Pushpanjali Medical Centre. On 15.09.2015 Sh. Mukesh Gupta went to the Doctor along-with his KFT report and on assessment of report as well as looking at the condition of patient, the said Dr. Neeraj Jain advised IV injection alubumim 25% BDx2 days and treated him in the casualty. The patient again went to the hospital for injection on 16.09.2014 and after that injection, he felt sever pain in the abdomen and he was referred to Dr. Neeraj Jain; immediately opinion of surgeon was taken and Dr. A. K. Kundaliya was called, the patient was advised immediate hospitalization and he was admitted in ICU of Pushpanjali Crosslay Hospital, Vaishali on 16.09.2014 and he was treated there. There was no visible improvement, therefore, on 18.09.2014 the patient was tried to be shifted to Apollo Hospital but he died on the way towards Apollo Hospital (the present complaint CC. No. 272/2016 pertains to this episode and claims).
2.3.1. The OP1/Insurer and the OP2/TPA were informed in time about hospitalization and admission of Mukesh Gupta, necessary forms were also furnished to avail cashless facilities but they same were refused by the OPs, it was being handled by Mukesh Gupta's brother being only other male member in the family and he was also taking care of patient. Since the cashless services was declined, the complainant no. 1 had no option but to bear all medical expenses, which were Rs. 73,420/- for this treatment [of this second episode, which included medicine, ICU charges, Lab tests which were conducted at different places viz. Rs. 51,059/- at Pushpanjali Crosslay Hospital, Rs. 22,361/- as causality charges, medical bill, etc]. The hospital had also issued discharge summary with all details of treatment besides final bill summary and final bill detail, which are annexed as part of the complaint.
2.3.2 The claim was lodged with the OPs by way of claim form and all necessary documents were also furnished to OP2/TPA within time on 16.10.2014 for reimbursement of medical expenses incurred in treatment and it was assured that claim amount will be reimbursed very soon. The insured’s brother kept on pursuing the matter to OPs but they paid no heed. Then he contacted the Branch Manager of OP1 with grievances that the claim is not being looked into, he was dissatisfied, however, the OP1 assured that matter will be looked into and it will be discussed with the OP2 and immediate action would be taken but no written communication was ever-since made either by OP1 or OP2 insured patient.
Since Mukesh Gupta's brother was pursuing the matter with OPs, it was told that on the basis of report of OP2, the claim cannot be allowed as the insured-patient was alcoholic and the claim was refused because of clause of 4.8 of the policy. In fact, OP2 had received report from Dr. Neeraj Jain to the effect, specifically mentioned, that patient used to take some alcoholic but he abandoned it four to five months back immediately before his first/initial hospitalization for treatment. Moreover, in April 2013, he had also suffered jaundice and as per medical test of jaundice, his liver was perfectly working besides reports of hepatitis B & C came negative; they were showing that there was no effect of occasional alcoholic on his body, since he was occasional moderate consumer of alcohol. The valid claim has been declined by the OPs without any justifiable reasons and contrary to insurance policy, the complainants suffered because of want of settlement of claim by OPs.
2.4 The complainant has been subscribing the policy regularly against payment of premium to indemnify risks but OP1 has acted contrary to insurance contract. There was no justification of refusal of the claims, which made the complainants to run the offices of OPs but they failed to address of grievances and settle the claim. That is why the present complaint for reliefs claimed.
2.5 The complaint is accompanied with copies of - insurance policy schedule (three pages), premium paid receipt, medical papers, discharge summary issued by Pushpanjali Medical Centre, final bill and the bill details, claim form, report of jaundice test.
3.1 (Case of OP1) - The OP1 opposes the complaint that there is no liability of OP1 pay any amount since there is no cause of action or any liability against the OP1 as per terms and conditions of the policy.
The complainants did not disclose the actual/proper facts but in fact they twisted the facts willfully to give colour of deficiency in services. The complaint is liable to be dismissed for suppression of material facts. The patient was admitted in Pushpanjali Medical Center firstly on 04.09.2014 and discharged on 11.09.2014 but the patient was again admitted in the hospital on 16.09.2014 but discharged on 18.09.2014 as LAMA. The patient was admitted with past history of CLD and PHTN and diagnosis of chronic liver deceases (alcoholic related)/PHT/Ansarca, cellulitis/UTI with sepsis with ? HRS as per discharged summary issued by the Hospital. The OP2/TPA processes the claim but it was found inadmissible as per clause 4.8 of Happy family floater insurance policy.
The claims were properly declined in terms of exclusion clause 4.8 of the policy, "that the company shall not be liable to make any payment under this policy in respect of any expenses, whatsoever incurred by any insured person in connection with or in respect of convalescence, general debility, run down condition or res cure congenital external disease or defects or anomalies, sterility, any fertility, sub fertility or assisted conception procedure, venereal diseases, intentional self injury/suicide, all psychiatric and psychosomatic disorders and diseases/ accident due to and or use, misuse or abuse of drugs/ alcohol or use of intoxicating substances or such abuse or addiction etc".
3.2 In addition, as per the terms and conditions of policy, the complainants were duty bound to intimate the hospitalization of patient immediately in writing within 48 hours duration or before the discharge of hospital, which they failed. Moreover, the patient was got discharged on 18.09.2014 [LAMA], it was also to be informed within 7 days of discharge but the complainants informed the OP1 on 16.10.2014. There is also a condition of co-payment to the tune of 10% of admissible amount in each and every claim.
3.3. Moreover, for establishing the case, OP1 has to lead evidence and examined its witnesses besides expert evidence. In Oriental Insurance Co. Ltd. Vs. Muni Mahesh Patle (VI 2006 CPJ I SC) it was held that the civil court is the appropriate Forum to decide the cases which are complicated in nature and in which oral and documentary evidence are required to be led. Whereas, the Consumer Protection Act the procedure prescribed in summary in nature. The matter needs adjudication by the civil court. In addition, the branch office of OP1 is at Ghaziabad, UP but the address of head office of OP1 has been used by complainant in appropriately, therefore, the present Consumer Forum lacks territorial jurisdiction. There is no cause of action arisen within the territorial jurisdiction of this Commission.
3.4. Since the inadmissible claim was declined properly under the terms of insurance policy, the complaint is without cause of action vis-à-vis the complaint is filed to gain sympathy of this Commission and to make imaginary and arbitrarily claim which is not tenable. The OP1 has no liability under the policy. There is a triable issue to be decided by the civil court. The complaint is liable to be dismissed.
3.5. The written statement is accompanied with copy of - book-let of terms and conditions of Happy Family Floater Policy - Silver Plan [without insurance policy].
3.6 (Case of OP1) – The OP2/TPA failed to appear and it had also not filed the reply.
4. (Replication of complainant) – The complainant filed detailed rejoinder while denying all allegations of written statement of OP1 but reaffirming the complaint as correct. The matter does not require any adjudication by the civil court since the Consumer Forum has jurisdiction to decide the consumer dispute. The OP1 has wrongly invoking exclusion clauses 4.8 and 4.23. The claim is squarely covered under the policy.
5.1. (Evidence)- In order to establish the complaint, the complainant no.1 led her evidence by filing affidavit of evidence coupled with the documentary record, it is on the pattern of complaint.
5.2. On the other side OP1 led evidence by filing affidavit of Shri Subhsh Chandra, Deputy Manager (Legal), of OP1. This affidavit is replica of written statement of OP1.
5.3. There is no pleading or evidence by the OP2 for want of its appearance since inception.
6.1 (Final hearing)- The complainants and the OP1 have filed their respective written arguments. The parties were also given opportunity to make oral submissions, Shri Bhupesh Kumar Chandna, Advocate for OP1 presented his oral submissions. The OP1 further relies upon Pradeep Kriplani Vs. New India Assurance Co. Ltd. (2018 HTPL 638 N/C); wherein it was held ‘the patient was found suffering from CLD with ALD due to heavy consumption of alcohol and the claim was declined. Khushboo Singh Vs. LIC of India (2018 HTPL 6918 N/C), the medical expenses claim was declined as the patient was chronic alcoholic and known case of ALD.
But no oral submissions were made on behalf of the complainants for want of appearance at that stage, however, their written arguments will be considered.
6.2 In addition, during the course of submission, it stand revealed that previous matter has already been disposed off. Thereafter, the Registry was directed to ascertain the actual status of case no. 302/2015, then the Registry was able to locate the decided file in CC. 302/2015 under the title Shiv Dhara Gupta and Ors Vs. Oriental Insurance Co. Ltd. and Anr. besides its execution petition no. EA-63/2017 is still pending. As per proceedings of execution, appeal FA. No. 659/2017 is pending before the Hon’ble State Commission as well as proceedings of execution are directed stay.
7.1. (Findings)- The case of both the sides are considered, keeping in view the material on record, inclusive of documentary record of the parties, statutory provisions of law and case law besides record of CC no.302/2015 produced by the Registry.
There is no dispute of subject policy issued by OP1, risk covered for the complainant no.1, her husband (Shri Mukesh Gupta) and their dependent children and sum insured of Rs.4,00,000/-. There is also no dispute of treatment and hospitlisation of Shri Mukesh Gupta besides medical expenses incurred but main dispute is in respect of admissibility of claim under the policy and of other legal issues.
7.2. The allied issues/disputes are being taken by beginning from the point of territorial jurisdiction of this Fora/Commission as well as on the subject matter. In case it is determined that this Commission has jurisdiction on both counts, then other issues will be taken and considered but not otherwise.
8.1 The OP1 took the objection that the complainant has invoked jurisdiction of the present Consumer Fora/Commission on the basis of mentioning address of head office of the OP1, otherwise the complaint could not be filed on the basis of head office of OP1. In addition, there is no cause of action arisen within the area of present Forum/Commission.
However, there was no oral submission on behalf of complainants nor OP2 was appearing to make the submissions on this point.
8.2. Thus the record is perused. The complainant has also impleaded TPA as OP2 having address of Pusa Lane, Karol Bagh, New Delhi, which is within the area of present Commission. The complainant has also proved letter dated 16.10.2014 written to OP2 at its address Pusa Lane, Karol Bagh, New Delhi, where claim was being processed and its receipt was also acknowledged by the OP2 under its seal and signature. To say, the claim was being processed by OP2 in its office at Pusa Lane Karol Bagh and complainants were also pursuing it at Pusa Lane, Karol Bagh, therefore, the cause of action has arisen within the operational jurisdiction of present Commission. This Commission/Consumer Fora has territorial jurisdiction on the subject matter. The OP2/TPA failed to contest the matter including the operational jurisdiction this Fora. Thus, objection of OP1 does not sustain. It is held that this Commission has local jurisdiction on this complaint.
9.1 The OP1's other contentions is that feature of the case involves questions to be decided by the civil court because it needs detailed evidence and cross examination of witness and it cannot be determined by this Consumer Fora under summary procedure. This was opposed by the complainant that Consumer Fora is competent to determine the consumer disputes even on the basis of affidavit of parties, which suffices.
9.2 On plain reading of entire pleadings and evidence, the OP1 has not highlighted as to which is or what is material, that warrants detailed examination or cross examination of witnesses and decision to be only by the civil court nor there is any whisper of complicated question of law or fact or mixed question of law and fact, nor any request ever since made to this Commission that any person/party/witness is required to be summoned, examined/cross examined in this complaint or otherwise issues cannot be determined. The record filed and proved by parties are abundantly clear besides there is a single document of terms and conditions of policy filed by OP1 (that too without policy or its schedule). The matter can be determined in the summary way. Therefore, this Consumer Commission is competent and has also jurisdiction on the subject matter to decide the dispute.
10.1. There is also rival plea on the point of terms and conditions of the policy, the OP1 invokes exclusion clause no.4.8 of the terms and conditions of policy but complainant denies those terms and conditions of the policy. The OP1 refers those terms and conditions and its exclusion clauses 4.8 that the claim is not admissible. The complainants are aware of them and the same are applicable, it reads ". convalescence, general debility, run down condition or res cure congenital external disease or defects or anomalies, sterility, any fertility, sub fertility or assisted conception procedure, venereal diseases, intentional self injury/ suicide, all psychiatric and psychosomatic disorders and diseases/ accident due to and or use, misuse or abuse of drugs/ alcohol or use of intoxicating substances or such abuse or addiction etc".
On the other side the complainants relies upon the medical record provided by the treating doctor, the same was also provided to OP2/TPA and the insurance policy scheduled provided by OP1, thus exclusion clause does not apply because of such material documents.
10.2. The submissions of the parties are assessed, in view of the material on record. The following are culled out -
(i) The complainants have proved discharge summary of patient Shri Mukesh Gupta in respect of his hospitalization from 16.09.2014 to 18.09.2014 [pages 14 to 16 of paper book] it mentions not only history of the patient CLD PHTN but also diagnosis of CLD/PHT/Anasarca/Celluitis/UTI with sepsis and present complaint of CLD (alcohol related).
(ii) Since the record of CC. No. 305/2015 is available, it contain discharge summary of patient in respect of first episode of hospitalization and treatment from 04.09.2014 to 10.09.2014. The patient was diagnosed of CLD with PHT gross edema, past history known case of CLD, HTN, ETOH and he was having complaint of pain abdomen since yesterday, shivering +with fever, episode of coffee colour vomiting, nausea + breathing difficulty. To say, in the said discharge summary there was nothing diagnosed of treatment by virtue of use or abuse of alcohol consumption.
(iii) There is also discharge summary in respect of treatment and hospitalization from 16.09.2014 to 18.09.2014 and it is mentioned that patient was suffering from CLD (alcohol related).
But there is no observation by the treating doctors that the patient was treated because of abuse of alcohol consumption by him nor any evidence by the OP1 to that effect. The complainants have also proved letter dated 15.09.2014 & 16.09.2014 by Dr. Neeraj Jain regarding ailment, diagnosis and treatment to patient Mukesh Gupta, however, none of them mentions that the patient Mukesh Gupta had abused alcohol consumption.
(iv) There is occasion to go through the following case law pertain to similar situation-
(A) National Insurance Co. Ltd. Vs. Preeti Sharma, dod 08.10.2007, by the Hon'ble State Consumer Dispute Redressal Commission of Delhi, it is held in Para no.19 - "It is not a case where the respondent insured was at any prior point of time held to be a case of liver cirrhosis or being alcoholic for several past years. It is not a case where insured had been admitted or hospitalized for any disease resulting from his being alcoholic or use of intoxicating drugs or alcohol. In the discharge summary there was reference that he had been taking alcohol and that also the quantity was not mentioned. Such a phenomenon does not develop in a day even in case of an alcoholic"
Para no.9-"In modern day social life people take drinks that may be known as social drink or even if a person drinks every day in moderation it does not mean that he should be deprived of the benefit of Mediclaim policy which he has obtained after requisite medical examination to rule out any such disease that may be pre-existing and may disentitle him to obtain the policy itself. Even otherwise unless and until the doctors give certificate that the disease for which the patient was admitted and treated was solely because of his having used, intoxicating drugs or alcohol in heavy quantity, no insured can be deprived of the rightful claim towards Mediclaim expenses.
... Para no.12 - If clause like 4.8 is invoked in such a manner as appellant has invoked in this case then more than 90% population who is seeking Mediclaim would be out of their net as whenever a person lands up in the hospital for some treatment or problem may be partly because of the use of alcohol etc. or even the stray reference in the discharge summary by the insured that he had been taking drinks every day would render the insurance companies out of business as modern day life many people are being persuaded by various studies that wi or liquor in moderate quantity is healthful for heart and even longevity. Son of the findings of the latest study, conclusions of which were based on pool data from 34 large studies involving more than one million people should be eye-opener. Findings reported in Archives of Internal Medicines by study leader Augusto Di Castelnuovo from Catholic University of Campo-basso are as under -
(a) A moderate amount of alcohol - upto four drinks per day in men and two drinks per day in women reduces the risk of death from any cause by roughly 18%;
(b). Its been shown that when men and women who drink the same amount of alcohol, women experience higher blood alcohol level than men.
(B) Oriental Insurance Co Ltd Vs Vijay Sharma (FA-66/201 dod 24.4.2023 Hon'ble State Commission Delhi, while dealing with core question arises as to whether the exclusion clause no. 4.7 of terms and condition of the policy is attracted or not; held that the objection taken in the repudiation by O.P is to be tested on the touch stone of discharge summary which indicates that the complainant was admitted in the hospital with diagnosis "CLD/PHT/severe anemia." Admittedly, the complainant was a case of CLD but it did not convey that it happened due to heavy intake of alcohol as contended by O.P, CLD may occur for many reasons not squarely on account of heavy intake of alcohol. The O.P has not placed on record any documentary evidence to show that complainant was in the habit of taking heavy and regular alcohol which led to CLD, therefore, the contention raised on behalf of O.P is not sustainable
(C) Rajesh Singla Vs Max Bupa Health Insurance Ltd CC 199/201 dod 24.4.2018 by Hon'ble State Commission, Chandigrah, (para 6) that in the absence of any specific evidence on the record, mere reference in the record mentioned by the Doctor that he was suffering from hypertension for the last 5 years is not sufficient to say so.
Para 8- no such evidence has been brought on the record by the Ops. In this regard, a reference can be made to the judgment of the Hon'ble National Commission in Revision
Petition No. 200 of 2007 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of pre-existing disease." It has been observed by the Hon'ble National Commission in the III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check up and on that ground repudiation is not justified. Further it has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. In the present case, except the medical record of the present ailment, Ops have not placed on the record any independent evidence that the insured had the knowledge or that he had been taking the treatment of liver disease before purchasing this policy and these judgments were not rebutted by the counsel for the Ops that in the absence of any specific evidence on the record how the disease, if any, to which the insured does not have the knowledge can be termed as pre-existing disease. Further it was also observed in "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" (supra) that many times healthy persons are unaware of such silent ailments of diabetes and hypertension, which come to their knowledge first time during the health check-up camps or in any emergent situation. Op cannot apply a hard and fast rule to presume that complainant was suffering for long duration before taking the policy. Therefore, we are of the opinion that repudiation of the claim is not justified.
(v) By reading sub-clause (ii) & (iii) above together and by taking them in sequence, the previous discharge summary does not mention the case of complain of CLD related with alcohol but the subsequent discharge summary mentions CLD (alcohol related). There are no findings of chronic alcoholic in respect of the patient nor any other independent evidence by the OP1 to establish that the patient was chronic alcoholic. Moreover, the complainants have also proved that the patient-insured has suffered jaundice and subsequent of hepatitis status have also been proved.
The case law presented on behalf of OP1 are distinguishable from the features of present case since those cases were related to the proved facts in which the patient was either chronic alcoholic or abused alcoholic. In addition, the case law referred (iv) above are leaning towards the feature of the present case.
(vi) On plain reading of clause 4.18, it applies when there is misuse or use of alcohol or such abuse or addiction etc. but there is no such evidence led by the OP1 to invoke this clause 4.8 against insured-patient in situation in hand.
It would not be out of context to mention that OP1 has not issued any letter for declining the claim (either in the form of rejection of claim or repudiation letter or under other expressions) but the patient’s brother was informed orally that the claim has been declined because of invoking clause 4.18 of alcoholic clause in the insurance policy vis-à-vis the OP1 also confirms this fact in the written statement. What was told and heard of clause 4.18 from OP2, the same was mentioned paragraph 14 of the complaint.
(vii) The OP1 also took an additional defence that the complainants failed to lodged the claim within 48 hours of admission or with 7 days of discharge, however, this will not give any benefit to the OP1, since, firstly the OP1 in reply to paragraph 14 of the complaint confirms that the brother of patient was told about clause no. 4.18, secondly, the written statement does not counter the plea of complainants that cashless services was declined, which means time factor was not in issue at all, thirdly the clause no. 4.23 was never informed to the patient through his brother (either at the stage of cashless services or otherwise) but it is emerging in the written statement. In fact, the OP1 was to serve the insured with written information about the decision on claim lodged. However, the complaint was filed, after receipt of oral information of refusal of claim on the basis of clause no.4.8.
(viii) There is no dispute of hospitalization of insured/patient from 16.9.2014 to 18.09.2014 as well as the amount of medical bills and expenses incurred by the complainant no.1 and after analysis it is already held that the exclusion clause 4.8 is not applicable in the situation of this complaint.
(ix) The complainants have proved medical record, bills and expenses for treatment of Mukesh Gupta during his hospitalisation.
10.3. So, it stand established that complainant no.1’s husband Shri Mukesh Gupta was advised admission for treatment and he was hospitalized. The claim was lodged by furnishing all papers but it was refused. This is deficiency in services on the part of OP1.
11.1 The complainants have proved their complaint against OP1 but OP1 could not prove its case and stand. Therefore, the complainants are held entitled for reimbursement of paid medical bills and expenses of Rs.73,420/- in respect of treatment and hositalisation of insured- Mukesh Gupta from 15.09.2014, 16.09.2014 to 18.09.2014. The claim bill is within the sum insured limit of Rs.4,00,000/- .
The OP1 has also contended that there is exclusion clause or 10% co-payment by insured in each and every claim but the policy schedule issued (three pages) to insured do not show any clause of co-payment nor OP1 could not show as to which clause in the terms and conditions mentions of 10% co-payment by insured. Therefore, OP1 could not prove this fact too to make any deductions in the claimed proved.
11.2 The complainants also claim interest. Since the complainant no.1 had parted with money from her purse to clear medical bills for treatment her husband and it also remained unpaid for want of settlement of claims. But there is no agreed rate of interest between the parties. It is appropriate to award reasonable interest, therefore, interest @ 5% per annum is determined and allowed from the date of complaint till realisation of amount in favour of complainants and against OP1.
11.3 The complainants claim compensation of Rs. 25,000/- on account of harassment and agony. It is apparent that OP1 has not settled the valid claims within the normal course under the policy, instead introduced and invoked an exclusion clause The circumstances are speaking themselves of avoiding obligation by OP1 under the policy but it caused harassment to complaint, these aspects are suggesting that complainants deserve compensation. But the compensation ought to be in consonance with the situation in lieu of harassment, un-certainty, inconvenience, agony. Therefore, compensation of Rs.15.000/-, being reasonable to situation, is allowed in favour of complainants and against OP1.
11.4 The complainants also claims other appropriate relief. Since, complainants have to file the complaint to seek reimbursement of amount of valid claim after exhausting all efforts, had it been settled in their favour and paid, there was no need to file complaint. Hence, costs of Rs.5,000/- is being considered reasonable and it is allowed in favour of complainants and against OP1 to the situation of this case but of no other relief.
11.5. OP2 is TPA and it process the claim by inter-acting with the Insurance Company and the insured, therefore, no relief is made out against OP2; the complaint deserves dismissal against OP2.
12.1 Accordingly, the complaint is allowed in favour of complainants and against the OP1 to reimburse medical bills/expenses amount Rs.73,420/-/- along-with simple interest @ 5%pa from the date of complaint till realization of amount, compensation of Rs.15,000/- and costs of Rs.5,000/- to complainant. The OP1 will pay the amount within 45 days from date of this order, failing which there will be enhanced interest at the rate of 7% per annum on amount of Rs.73,420/-. The OP is at liberty to deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant no.1, since other complainants are minors but through their mother and natural guardian.
12.2. The complaint against OP2 is dismissed.
12.3. The files of CC no.302/15 and EA no.63/2017 are returned to the Registry to place them in appropriate shelf and place.
13. Announced on this 10th day of December, 2024 [अग्रहायण 19, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs155]
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