Haryana

Ambala

CC/28/2017

Rajat Mathur - Complainant(s)

Versus

OIC - Opp.Party(s)

Ashutosh Aggarwal

16 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

              Complaint Case No.      : 28 of 2017.

Date of Institution         : 20.01.2017.

                  Date of Decision            : 21.05.2018.

 

Dr.Rajat Mathur s/o Late Dr.B.K.Mathur, age 45 years r/o H.No.1357, Sector-10, Urban Estate, Ambala City.              

……Complainant.

Versus

 

1. The Oriental Insurance Company Ltd. Ground Floor, LIC Building, Ambala City through its Branch Manager.
2. The Oriental Insurance Company Limited, Registered Office- Oriental House, P.B.No.7037, A-25/27, Asif Ali Road, New Delhi-110002 through its Chief Manager.
3. Park Mediclaim TPA Pvt.Ltd. Third Party Administrator- Health Services, 702, Vikrant Tower, Rajendra Place, New Delhi 110008 through its Medical Director.
4. Insurance Regulatory and Development Authority Delhi Office- Gate No.3 Jeevan Tara Building, First Floor, Sansad Marg, New Delhi 110001 through its Chairman.

                                      ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Ashutosh Aggarwal, counsel for complainant.

                   Ms.Upma Bhalla, counsel for Op Nos.1 to 3.

                   Reply of OP No.4 received through post.

 

ORDER

 

                   Brief facts of the present complaint are that the complainant and his family had purchased Happy Family Floater Policy, Cashless medical policy, bearing No.261101/48/2014/3495 (previous policy No.261101/48/2013/ 2697) plan Type- Silver from OP No.1 for a sum assured of Rs.5 lacs. Mother of the complainant namely Anju Mathur got admitted in Leelawati Hospital, Ambala City on 01.01.2015 with acute vomiting, Epi Discomfort, Altered Sensorium and was referred to Higher Centre for management vide discharge card dated 02.01.2015. She was got admitted in MAX Super Specialty Hospital, Mohali on 02.01.2015 with problem Drowsiness, Breathlessness and desaturation and was discharged on 05.01.2015. Though there was error in the date of admission which was got verified and corrected from Max Super Specialty Hospital, Mohali.  The complainant had filed the claim of Rs.178413/- with Op Nos. 1 & 2 and also submitted requisite documents. During treatment at Max Hospital the complainant has purchased a BIPAP machine worth Rs.79800/- on dated 04.01.2015 being necessary for survival of insured/ mother of the complainant. The payment upto Rs.75000/- was guarantee towards the cost of necessary treatment besides and amount exceeding that amount would only further authorization and room rent limit was Rs.5,000/- per day including nursing care besides 10 % of final bill was to be paid by insured on account of co-patient as mentioned in letter issued by Op No.3 to Max Hospital. On 05.01.2015 the Op No.3 again sent a letter to Max Hospital, Mohali wherein it has been mentioned that cashless request is being denied in view of expenses of treatment for Morbid Obesity & Related Complication are not covered as per Exclusion Clause 4.17 earlier Grant Rs.75000/- stands withdrawn.  On 18.04.2015 Op No.3 issued another letter  mentioning therein that the policy does not cover expenses on treatment of Morbid Obesity or Condition as per exclusion clause 4.17 of policy.  On processing deduction of Rs.79800/- only had been done toward the cost of BIPAP machine as an external or durable medical/ non medical equipment as per clause 4.16 of the policy. The claim amount was considered as Rs.98613/- and 50 % of payable amount had been disallowed further for the expenses on treatment of obesity and its complication. The complainant visited the office of Op No.1 and by way of a letter dated 01.08.2016 requested to release the amount of Rs.178413/- as instead of that Op No.3 offered payment of Rs.49036/- vide letter dated 18.04.2015 on receipt of consent of the complainant. The Op No.3 has denied the genuine claim of Rs.178413/- , therefore, the act and conduct of the OPs clearly amounts to deficiency in service their part. In evidence the complainant has tendered affidavit Annexure CW/A and documents Annexure C1 to Annexure C39.

3.                          OP No.4 sent its reply through post wherein it has been submitted that the complainant had purchased Happy Family Floater Medi claim Policy with cash less facility bearing policy No.261101/48/2014/3495 plan Type Silver for Rs.5 lakhs covering himself and his family members. The mother of the complainant had fallen ill and the complainant had submitted claim to the tune of Rs.1,76,413/- with the Op Nos. 1 to 3. The OP No.4 lays down broad policy and does not adjudicate upon dispute between individual policy holder and the insurance company. The Op No.4 has placed a system called Integrated Grievance Management System (IGMS) whereby any policy holder can register a complaint which would be flagged to the insurance company for quick resolution. If the complaint is addressed to Op No.4 it is registered and documents captured are forwarded to the insurance company for resolution.  The insurance company is required to examine the complaint and attend to it within two weeks by responding to the complaint.  The Op No.4 merely plays a facilitative role by taking upon the complaint with the insurance companies for their resolution and updating the status of complaint but does not adjudicate the complaint. The complainant does not fall within the definition of consumer as Hiring of Service for consideration is a condition precedent to make a person a consumer.   Prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R3.

2.                On notice Op Nos. 1 to 3 have filed their joint reply wherein several preliminary objections such as cause of action, maintainability, concealment of material facts and jurisdiction etc. have been taken. On receiving of discharge summar-1 the cashless was denied in view of the expenses on treatment of Morbid Obesity and in view of the fact that the related complications/ condition arising there from are not covered as per exclusion clause 4.17 of Happy Family Floater Policy which is reproduced as follows:

                   “Treatment of obesity or condition arising therefrom (including morbid obesity) and any other weight control programme, service or supplies etc.”

After refusal of another discharge summary-11 was given by the complainant with remarks in diagnosis Morbid Obesity, Obesity Hyperventilation syndrome  with remarks from the history “Morbidly obese” were removed and not only this the name, age sex, date of admission was handwritten and the date of admission was changed from 02.01.2015 to 31.12.2014 . Not only this, the complainant being a medical practitioner himself and alongwith hospital authorities have further gone to the extent of changing of list of prescribed medication thereby trying to give an illusion that it was just a case of Type - 2 respiratory failure. In the discharge summary the date of admission was again changed to 02.01.2015.  The complainant had committed fraud upon the OPs. The claim was not payable in view of clause No.5.10 of the policy and in terms of exclusion clause No.5.10 of the policy it become void and all premiums had already been forfeited. The BIPAP machine, if any, purchased by the complainant is not covered under the said policy as per exclusion clause No.4.16. The hospital had initially not disclosed about the history of Morbid Obesity, Obstructive Sleep Agnea, Obesity Hyperventilation Syndrome, Type II Respiratory Failure. The complainant and hospital authorities have not apprised a true facts to the OP No.3 and they have misrepresented the facts and due to the misrepresentation, the complainant got the sanction of Rs.75000/- and this amount was sanctioned subject to the terms and conditions of the policy and so that the complainant is saved from any monetary problem but as soon as the Op No.3 came to know that treatment given to Mrs. Anju Mathur is outside the scope of the policy, the OP No.3 had no other alternative to stop the payment of Rs.75,000/- initially sanctioned to the complainant as cashless treatment. The letter dated 05.01.2015 in this regard was also issued. The documents have been manipulated. However, it was made clear to the complainant that still in case the claim of the complainant is squarely covered under the terms and conditions of the policy and further requested that all the requisite documents be submitted and in case such claim is found then the same would be considered for reimbursement on merit but the claim submitted was not as per rules, regulations and terms and conditions of the policy. The Ops after received the letter from the complainant offered him 50 % of Rs.98613 (Rs.49306/-) as a goodwill gesture and in order to maintain the good relationship, that too when the proper investigation was not carried out. Now, the complainant has filed the present complaint by way of manipulation and fabrication of discharge summaries. Dr.Deepak Bhasin issued certificate that she is obese and not Morbid Obese and Dr.Vipin Jain issued the certificate that she is overweight but not obese both the doctors have issued contrary certificates. The complainant himself is confused and arranged contradictory certificates. The certificate as obtained by Dr.Vipin Jain cannot be considered for claim as for the claim, the treatment record before at the time of admission to hospital and till the discharge of the patient from the hospital is considered and not any certificate obtained after 6 months of the treatment. As per Exclusion Clause 4.17, treatment of obesity and its complications are not covered under the policy.  Other contentions have been controverted and prayer for dismissal of the claim has been made by claiming that there is no deficiency in service and unfair trade practice on the part of Op Nos. 1 to 3.

                   Op No.4 had sent its reply through post wherein it has been submitted that the complainant had purchased Happy Family Floater Medi claim Policy      with cashless facility bearing No.261101/48/2014/3495 plan Type Silver for a sum of Rs. 5 lakhs covering himself and his family. Mother of the complainant Anju Mathur was admitted in Leelawati Hospital, Ambala City on 01.01.2015 with acute vomiting, Epi discomfort, Altered Sensorium and was referred to higher centre where she was treated and as per complainant he had spent Rs.1,78,413/- on treatment. No specific relief has been sought against Op No.4 as it plays a facilitative role in resolution of grievance as it discharges regularly and supervisory functions. The Op No.4 laid down broad policy and does not adjudicate upon dispute between individual policy holder and the insurance company.  The Op No.4 only monitors the grievance redressal mechanism of insurance companies. In the instant case no complaint was lodged with Op No.4. The Op No.4 is body corporate established under IRDA Act, 1999 and is performing statutory functions under the said Act, therefore, it cannot be said to be rendering any service for consideration as contemplated under Section 2 (1) (o) of the Consumer Protection Act, 1986. There is no relationship of consumer between the Op No.4 and complainant as it did not charge any free or receive any consideration for the service rendered, therefore, Op No.4 has been wrongly dragged in the present litigation. Prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R3.

3.                We have heard learned counsel for the parties and gone through the case file very carefully.

4.                It is not disputed that the policy in question is a floater policy and cashless medical policy having validity from 31.03.2014 to 30.03.2015 for amounting to Rs.5 lakhs. The mother (Anju Mathur) of the complainant   admitted in hospital of the complainant on 02.01.2015 and further she was referred to higher institute for better management and she remained admitted from 02.01.2015 to 05.01.2015 as per Annexure C3. The patient was diagnosed initially for respiratory failure Type II when she admitted in the Max Super Speciality Hospital, Mohali and diagnosed as Obstructive sleep Apnea, obesity Hyperventilation syndrome Type 2 resp. failure.  He claimed an amount of Rs.178413/- as per the claim application Annexure C7. The treating doctor has given the certificate regarding disease that she was diagnosed to have Type II respiratory failure with Obstructive Sleep Apnea. Her height is 5.6” and weight was 85 Kgs at the time of admission and calculated BMI was 31 kg/m2. She is obese and not morbidly obese and that was wrongly mentioned in discharge summary. Same corrections have been done in the hospital records. Claim of the complainant has been declined on the ground that the Treatment of obesity or condition arising therefrom (including morbid obesity) and any other weight control programme, services or supplies etc. As per Annexure C38 certificate issued by Vardhman Hospital dated 27.07.2015 they have given the medical opinion that Anju Mathur F, 64 years height is 166 cm and weight is 76 Kgs. Her BMI is 27.58 Kg/m2. She is overweight but not obese. Other physical examination is within normal limit.

                    In view of that certificate the patient was overweight but not obese but the complainant has fairly admitted at the time of arguments initially case of the patient was diagnosed by the Max Super Specialty Hospital as per discharge summary Annexure C3 as well as Annexure C8, the patient is obese and not morbidly obese. In Annexure C33 the TPA has allowed Rs.75000/- but the same was withdrawn on the ground that expenses on the treatment for morbid obesity & related complications are not covered as per exclusion clause 4.17.  As per Annexure C35 the TPA has reviewed the claim of the complainant and observed that he would like to draw your attention towards the fact that you preferred a claim for Rs.178413/- for expenses on treatment of Bilateral Pleural Effusioin with Respiratory Failure, Hypertension and morbid obesity. However, the contents of the discharge summary and the other submitted documents provide further information during this hospitalization your mother was also treated  for Morbid obesity and its complications. Please note that the policy does not cover the expenses for treatment of morbid obesity or condition arising therefrom and any other weight control programme vide exclusion clause 4.17 of the policy. It is strange fact that the claim of the complainant regarding treatment was considered by the TPA as per Annexure C35 and observed that The claim amount has been considered as Rs.98613 and 50 % of payable amount has been disallowed  further for the expenses on treatment of obesity and its complications. As such we offer you a payment of Rs.49306/- only on receipt of your complaint. When the OP has considered the claim of the complainant amount of Rs.98613/- and 50 % of payable amount has been disallowed.

                   On processing deduction of Rs.79800/- only has been done towards the cost of CPAP Machine as an extended or durable medical/ non medical equipment of any kind used for diagnosis and or treatment vide exclusion clause 4.16 of the policy.

                   The Op has rightly deducted the amount of Rs.79800/- from the total claimed amount 178413/-. Vide Annexure C35, the insurance company has allowed the 50 % of the amount i.e. 98513/- (Rs.49306/-), therefore, it would be appropriate if we allow the complaint with a direction to the OPs to pay the agreed amount i.e. Rs.49306/- but the same has not been paid and the complainant had to approach this Forum for the amount.

15.              Keeping in view the facts and circumstances mentioned above we are of the considered opinion that there is deficiency in service on the part of OPs. Hence, the complaint is allowed with costs which is assessed at Rs.5,000/- with a direction to the OPs to pay the amount of Rs.49603 /-  alongwith interest @ 9 % from the date of filing of compliant till realization of amount. The OPs are further directed to pay Rs.5,000/- on account of mental agony, harassment  also. Order be complied within 30 days of receipt of copy of order. Copy of this order be supplied to both the parties free of costs.  File be consigned after due compliance.

 

ANNOUNCED ON:      21.05.2018                          (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

 

            (ANAMIKA GUPTA)

                                                                                      MEMBER