DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION LUCKNOW-1

Case No.  304 of 2018

                       PRESENT:  SHRI NEEL KUNTH SAHAI           PRESIDENT

                                          SHRI ASHOK KUMAR SINGH     MEMBER

                                          SMT. SONIYA SINGH                  MEMBER

DATE OF FILING OF CASE :   27.07.2018

DATE OF JUDGEMENT : 23.08.2022

Ashu Malhotra aged about 65 years, w/o  D.K. Malhotra , Resident of 601, Jasmin Block , Eldeco Park view , Sitapur Road, Near Galla Mandi, Lucknow.                                                                     ……………………..  COMPLAINANT.

                                                              VERSUS

Oriental Insurance Company, through its Manager, C.B.O.  5, 8, Balmiki Marg, Lalbagh, Lucknow – 226001

                                                                                          …………………………RESPONDENT.  

ORDER PASSED BY:  SHRI ASHOK KUMAR SINGH,     MEMBER

JUDGEMENT

1. The Complaint is filed by Complainant for direction to Opposite Party to refund a sum of Rs. 2,83,000/- (Rupees Two lakhs Eighty Three Thousand Only) deposited by the complainant for her treatment with 24 percent interest, to pay Rs. 50,000/- (Rupees Fifty Thousand only) towards physical strain and mental agony and deficiency in service and to pay a sum of Rs. 50,000/-               ( Rupees Fifty Thousand Only ) towards cost of the case.
2. In brief the Complainant and her husband had taken a Mediclaim Insurance Policy No. 221306/2018/1599 Dt. 13-02-2018 which was valid from 14-02-2018 to 13-02-2019 . The Complainant deposited Rs. 65199/- and according to the policy the sum insured to husband is Rs.700,000/- and to her was Rs, 500,000/-respectively. The complainant is an old lady of 68 years and she had underwent a successful heart transplant but on 22-03-2018 , she was admitted in Fortis Hospital with breathing difficulty, shoulder pain and leg pain. The Complainant was in Hospital from 22-03-2018 to 27-03-2018 and had spent Rs, 2,83,000/- for her treatment in this period. The Complainant filed the claim to the OP on 22-06-2018. Thereafter she made various communications with the OP by visiting them through e-mails and telephone calls but OP avoided her on some or the other way.
3. The Complainant has claimed that the act of Opposite Party is highly unethical, immoral, unjustified and against the business ethics. Complainant has charged that the respondent has caused wrongful loss to her and they are engaged in Unfair Trade Practice and has adopted Unfair means to earn profit and has made huge money because of which Complainant has suffered not only economically but also suffered mental tension and pain due to the gross negligence, misconduct and lapses of the respondent. This signifies “Deficiency in Service” as prescribed under the provisions of Consumer Protection Act.
4. The Opposite Party has submitted the Written Statement and has refuted all the claims of the complainant and has said that the relief sought is not sustainable. The OP has submitted that the reasons for not admitting of the claim by them has been conveyed to the Complainant and the same have not been countered cogently. The Opposite Party says that the claim in question is rendered not-sustainable. In the repudiation letter the Opposite party has mentioned that “As per discharge summary of Hospital patient was admitted for evaluation and also during the hospitalization management not any injectable medication has been given. Hence this claim is non admissiable due to violation of policy clause 4.10 (Expenses incurred at hospital or nursing home primarily for evaluation/diagnostic purposes which is not followed by active treatment for the ailment during the hospitalization period are excluded from the scope of policy.)”
5. Opposite party main contention is that as per Discharge Summary of Hospital, patient was admitted for Evaluation and during Hospitalization no injectable medication was given and only investigation was done and oral medicines were given. And so claim was made non-admissable due to violation of policy clause 4.10.
6. The Complainant has filed the Affidavit with Evidence and annexed Five Annexures as Evidence and has claimed that the Complainant is a 68 years old lady and on 23-01-2015 she underwent a successful heart transplant but on 22-03-2018 was admitted in Fortis Hospital with breathing difficulty, shoulder pain and leg pain but the opposite party rejected the claim of the complainant stating the above ground as in Repudiation letter. The Complainant has alleged the respondent act as highly unethical, immoral, unjustified and against the business ethics. Therefore, the respondent is engaged in “Unfair Trade Practice” and has adopted unfair means thus causing economical loss and given mental tension and pain. The Complainant alleges that the respondent’s negligence, misconduct and lapse caused great mental tension and pain. Thus the Complainant alleges that this act of Respondent comes within the purview of “Deficiency of Service”.
7. Heard both the parties and perused the file and the Documents, Evidences available in record and file.
8. On Perusing the File and the Documents and Evidences available in file, it seems the complainant and her Husband are Esteemed customer of the Respondent and have been making all their payments in scheduled time with no delay or breakage since about 20 years. According to Policy, the Complainant and her husband were insured for Rs. 7,00,000/- and Rs. 5,00,000/- respectively. The Complainant had undergone successful heart Transplant surgery few years back and on 22-03-2018 was admitted in Fortis Hospital with breathing difficulty, shoulder pain and leg pain which the doctor of Fortis Hospital has verified. The respondent rejected the Insurance Claim through the Repudiation letter dated 22-0602018 stating that the Complainant was admitted for evaluation and during hospitalization no Injectable medication was done and the patient has not undergone any procedure during treatment.
9. From the Policy of the Complainant it is obvious that they were having the Mediclaim Insurance Policy for many years and the complainant claim that they were Insured by the respondents from the last twenty years seems correct. The Mediclaim policy specially mentions that the “The Policy shall pay for hospitalization expenses at any Nursing Home/ Hospital in India as defined in the policy”. On the one hand respondent promise good and helping approach in the policy by saying “We at Oriental Continuously strive to ensure that you get the best possible treatment from our network Hospitals” and on the other hand seems just making  excuses for not giving the claim of the complainant. Inthe Policy the respondent promise payment for hospitalization expenses for all medical treatment. Medical treatment may include check-ups and any complication that the patient/ complainant is feeling after the operation of the Heart that was transplanted and later on caused breathing difficulty, shoulder pain and leg pain. The Respondent’s approach towards a Policy holder of more than 20 years is unwarranted, unfair and unlawful. All the expenses of medical treatment is assured in the policy, and the denial seems discriminating and without prudence. 
10.  The Opposite Party /respondent has based the repudiation of the claim of the complainant on the exclusion Clause 4.10 of the Policy which mentions as follows: “Expenses incurred at Hospital or Nursing by Home primarily for evaluation / diagnostic purposes which is not followed active treatment of the ailment during the hospitalization period”. As per the repudiation letter, probably, the respondent has based the “active treatment” as the injectable medication. In the General Exclusion clause of 4.10 of the policy no such clarity has been given that the Injectable treatment can only be treated as “Active Treatment”. Exclusion clause following 4.10 that is 4.11 mentons as follows: “Expenses on Vitamins and Tonics etc unless forming part of treatment for injury or disease or disease as certified by the attending physician”. Here the vitamins and tonics are oral medicines and they if certified by doctor can be treated as “active treatment” and would be payable in policy claim by the respondent. Here in this case all the medicines, check-ups and treatment are duly certified by the Hospital, then why this rejection and repudiation by the opposite party. Also no General Exclusion Clause of the policy outrightly rejects the Oral treatment as part of Active treatment. In the present case the treatment of the Complainant is certified by the Fortis Hospital  doctor and the Director , Cardiac sciences has given the certificate which mentions as follows:

        “ Currently patient is admitted with breathing difficulty with easy fatigue, shoulder pain and leg pain , admitted in Fortis Malar hospital for further management”.

The Discharge Summary certificate of Fortis hospital has clearly mentioned the course undergone for complainant in the hospital which mentions as follows:

          “ She was admitted in the ward. Necessary investigation were done. ECHO showed normal biventricular function, Trace pericardial effusion,Trivial TR,No MR, No pleural effusion. She was treated with Immunosuppressents and other supportive measures.Due to suspected drug-induced neuropathy, cyclosporine was chaged to Tab.Everolimus. Tab. Wysolone 5mg Odd was added.

ID specialist opinion was taken and advised TFT were within normal limits. General Physician opinion obtained for diabetic control and advice followed. Orthopedic surgeon opinion obtained for lower limb numbness started vitamin supplements. General surgeon opinion taken for suspected hernia, USG abdomen was done which revealed fatty liver and other organs were normal. Neurologist opinion for neuropathy and was advised trigabantin. She was symptomatically improved and discharged with the following medications. Blood sent for cell free DNA to rule out rejection as she had an episole of breathlessness.”

11. The Discharge summary clearly mentions that exhaustive and elaborative checks were done by Specialist of the different field and medicines were given. Even vitamins were given and advised too and that too by the specialists. Such exhaustive medical check-ups and treatment with specialist opinion and advise cannot be excluded from the Active treatment Category.  So the respondent ground of the general exclusion does not hold ground and can be considered as making  excuses. This is nothing but Refusing Insurance Claims on flimsy grounds. Even Hon. Supreme Court has observed that “ The Insurance companies are refusing claims in many cases on ‘FLIMSY GROUNDS ’while observing that they should not be too technical while settling the claims.”

Hon. Supreme Court in a different case of Bharat Watch Company Vs. National insurance Co Ltd. (civil appeal no. 3912 of 2019 arising out of S.L.P.(c) No. 25468 of 2016) has held that “ Insurer cannot rely on the terms of Exclusion of a policy if, the same are not communicated to the Insured “.

Here in this case too the Complainant does not seem to be informed by the respondent about the Active treatment which excluded the Oral medications and specialist treatment and medicines advised and taken by the complainant.

In the Case Apollo Munich Health Insurance vs, Hemant Thakur on 11^thFebruary 2019 the Hon. SCDRC in reference to the Repudiation of Mediclaim has observed that the“ Such a propensity and tendency on the part of the Insurance companies needs to be curbed with heavy hands as invariably every mediclaim is being repudiated on these excuses. On the one hand the insurance companies want to augument their business by charging the premium and when out of ten, one or two consumers file a claim, they start finding out one excuse or the other , most of which are dubious and feeble to defeat the rightful claim of the party.This is highly unethical and uncouth practice. We have considered the case in its entirety and hold that the appellant / Opposite parties adopted unfair trade practice by arbitrarily repudiating the genuine mediclaimof the respondent /complainant . We, therefore, affirm the view adopted by the forum that the appellants / opposite parties are liable to pay the claim and the compensation.” Here in this case too, the complainant was insured by the opposite party for more than 20 years and OP got the premium to augment their business but when the time came for the payment of the Mediclaim the opposite party found out the dubious and feeble Excuse of “Active Treatment” without considering that the Complainant had Serious Disease and had got her Heart transplanted. A transplanted Heart has to be cared and checked regularly with proper check-ups from specialist doctors. This necessary intermittent check-ups the Complainant had undergone in the present case.

12.From the above perusal of the documents available and the interpretation and  the rulings and findings of the Hon SCDRC and Hon, Supreme Court it is obvious that the Insurance company’s repudiation does not hold ground and is found to be just “ Finding an excuse to deny the Mediclaim and repudiate it”. The act of the Insurance Company is Arbitrary and Unfair and falls under the category of a “Deficiency In Service” and the approach of the company is an Unfair Trade practice. This is against the Provisions and the philosophy of the Consumer Protection Act.  Thus the Complainant is entitled for the claim, which she was arbitrarily denied, and that too with interest. And since the complainant suffered mental and physical pain and agony she is entitled for the compensation too. And the opposite party is liable to pay the Claim with interest and the Compensation.

ORDER

13.The Complaint is partly allowed and the opposite party is directed to refund / pay the sum of Rs.2,83,000 (Rupees Two Lakhs  Eighty-Three Thousand only) deposited by the Complainant for her treatment, with 9% interest from the date of the institution of the case till the date of payment within 45 days of this order. Also the Opposite Party is directed to pay Rs. 50,000 (Rupees Fifty Thousand only) as compensation for physical strain and mental agony to the Complainant and the cost of litigation. If the payment is not done within the stipulated time, the interest of 12 % would be payable by the Opposite party on the entire amount.  

     (SONIYA SINGH)        (ASHOK KUMAR SINGH)             (NEEL KUNTH SAHAI)        

         MEMBER                           MEMBER                                    PRESIDENT

                                                                    DISTRICT CONSUMER DISPUTES REDRESSAL  

                                                                                  COMMISSION  FIRST LUCKNOW.                               

Today the order/decision is signed and Pronounced in open court.

  (SONIYA SINGH)        (ASHOK KUMAR SINGH)             (NEEL KUNTH SAHAI)        

      MEMBER                           MEMBER                                    PRESIDENT

                                                                    DISTRICT CONSUMER DISPUTES REDRESSAL  

                                                                                  COMMISSION  FIRST LUCKNOW.                               

DATE- 23.08.2022