Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainants have filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant No. 1 is employee of Punjab Government working as Constable having No.2765 with Punjab Police and complainant no.1 is father of complainant No.1 and Government of Punjab introduced the health insurance scheme for its employees and pensioners namely Punjab Government Employees and Pensioners Health Insurance Scheme (PGEPHIS) to cover indoor medical diseases as specified or to be specified by State Government and said scheme applied to all the government serving employees and pensioners on compulsory basis. Accordingly, the complainants were also enrolled under the said scheme for the period 01.01.2016 to 31.12.2016 under ID card no.MD15-09988247658 issued by Opposite Party No.2. During said insurance period, the complainant No.2 suffered from Chest pain after having meals and accordingly, he was got admitted in Christian Medical College & Hospital, at Ludhiana on 14.12.2016 and was discharged on 19.12.2016 where he spent a sum of Rs.57,847/-. Thereafter, the complainant No.2 again felt chest pain and he was again got admitted in Dayanand Medical College & Hospital, Ludhiana on 26.12.2016 where he remained admitted 4.1.2017 and spent Rs.2,32,697/- on the treatment of complainant No.2. After discharge, the complainant lodged his claim with Opposite Parties and completed all the formalities, but however, the Opposite Parties have failed to consider, process and settle the claim of the complainants inspite of the repeated requests and reminders and lastly, refused to accede to pay any heed to the request of the complainants and hence, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay the claim amount of Rs.2,90,544/- and also to pay compensation on account of deficiency in service committed by the Opposite Parties or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that on the basis of notification No.21/28/12-5HB5/268 dated 20.102015 the policy in question was issued by Government of Punjab, Department of Health and family welfare from Oriental Insurance Company Limited for the benefits of Punjab Government Employees and Pensioners Health Insurance Scheme (PGEPHIS) valid for the period 1.1.2016 to 31.12.2016 for a total sum insured of Rs.3 lakhs floater was issued subject to conditions, clauses, warranties and endorsements and it is one of the condition in the policy that the treatment availed by the complainant No.2 the beneficiary under the policy shall be on reimbursement basis subject to the submission of the claim to the TPA within 30 days from the date of the discharge from the hospital. Admittedly, the complainant No. 2 admitted in Christian Medical College & Hospital, at Ludhiana on 14.12.2016 and was discharged on 19.12.2016 and admitted in Dayanand Medical College & Hospital, Ludhiana on 26.12.2016 where he remained admitted 4.1.2017. The complainants have lodged non cashless claims under the said policy and has submitted the claim file alongwith all documents required for processing the claim on 04.02.2017. The treatment availed by the complainant No.2 was on reimbursement basis subject to submission of the claim to the TPA within 30 days from the date of discharge from the hospital. Since, the claim was lodged after 30 days from the discharge from the hospital, said TPA vide its letter dated 27.03.2017 had recommended for repudiation of the claim to Opposite Parties No.1 and 2 after due application of mind as per the terms and conditions of the policy. On merits, Opposite Parties No.1 and 2 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Party has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. None has come present on behalf of Opposite Party No.3, hence Opposite Party No.3 was proceeded against exparate.
5. In order to prove his case, the complainant has tendered into evidence the affidavits Ex.PA and Ex.PB alongwith copies of documents Ex.C1 to Ex.C60 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 also tendered into evidence the affidavits Ex.RA and Ex.RB alongwith copies of documents Ex.R1 to Ex.R65 and closed the evidence.
7. We have heard the ld.counsel for the parties, perused the written submissions filed by the Opposite Parties and also gone through the documents placed on record.
8. Ld.counsel for the parties have mainly reiterated the facts as narrated in the complaint as well as in written versions respectively and we have gone through the rival contentions of the parties. The question requires to be decided by this District Consumer Commission is whether the complainant is entitled for reimbursement of claim in view of the contents of the repudiation letter referring that the claim was lodged after 30 days from the discharge from the hospital, said TPA vide its letter dated 27.03.2017 had recommended for repudiation of the claim to Opposite Parties No.1 and 2 after due application of mind as per the terms and conditions of the policy.
9. It is not disputed that during said insurance period, the complainant No.2 suffered from Chest pain after having meals and accordingly, he was got admitted in Christian Medical College & Hospital, at Ludhiana on 14.12.2016 and was discharged on 19.12.2016 where he spent a sum of Rs.57,847/-. Thereafter, the complainant No.2 again felt chest pain and he was again got admitted in Dayanand Medical College & Hospital, Ludhiana on 26.12.2016 where he remained admitted 4.1.2017 and spent Rs.2,32,697/- on the treatment of complainant No.2. The only contention of the ld.counsel for Opposite Parties No.1 and 2 for the repudiation of the claim of the complainant is that as per the terms and conditions of the policy in question, the claim was lodged after 30 days from the discharge from the hospital, but on the other hand, ld.counsel for the complainant has specifically denied this averment of Opposite Parties No.1 and 2 and contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of enrolment and the alleged terms and conditions are not applicable on the case of complainant. In this way, the main ground for rejection of claim of the complainant by the Opposite Parties is that complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim of the insured as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
Recently, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.415 of 2019 decided on 18th June, 2021 in case Bajaj Allianz General Insurance Co. Vs. Rajwant Kaur and others has specifically held that the onus is on the insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in his knowledge. In para No. 18 has held that the appellant has filed to produce on record any cogent evidence to prove that the said terms and conditions were supplied to the complainant and she was fully aware of the same. The matter is no more res integra the Hon’ble Supreme Court of India in case “Bharat Watch Company through its partner Vs. national Insurance Company Limited 2019(6) SCC 212 and held that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusion clauses. Hon’ble Hon’ble Supreme Court of India relied upon above referred judgement in case New India Assurance Company Limited & Others Vs. Paresh Mohan Lal Parmar in Civil Appeal no. 10398/2011 decided on 04.02.2020.
10. However, in our considered view, merely on the ground of delay in lodging the claim, the same can not be repudiated by invoking clause 11.6 of the policy in question. No doubt, the clause provides that the beneficiarty is eligible for reimbursement, subject to submission of the claim within 30 days from the date of discharge from hospital, but in the instant case, the complainant No.2 was discharged on 4.1.2017 and on the last day i.e. 4.1.2017 the complainants lodged their claim for the reimbursement of medical bills. Moreover, in the clause 11.6 itself there is no mention that in event of non submission of the claim within 30 days from the date of discharge from the hospital, the claim would be rejected or repudiated, therefore, in our considered view, the interpretation of clause 11.6 made by the Opposite Parties is totally unreasonable and out of context and hence a genuine claim can not be repudiated on flimsy grounds. In this regard, Hon’ble Punjab & Haryana High Court at Chandigarh in case Ram Pal vs Central Administrative Tribunal ... decided on on 14 January, 2019 in CWP-22482-2017 has specifically held that the Courts while dealing with medical reimbursement claims have repeatedly stressed that the applicable Instructions have to be liberally construed in favour of the beneficiaries. Not only this, in case Darshan Singh Rai v. Union of India , (P&H)(DB) 2008(2) S.C.T. 242, Division Bench of Hon’ble Punjab & Haryana High Court at Chandigarh has also held that all the rules and regulations regarding medical reimbursement are to be considered in favour of the Government employee liberally and to his benefit. The State cannot be permitted to have an iron heart in such matters. It was observed as under:
"7. The State cannot refuse reimbursement of the expenditure incurred by a Government servant for it is the bonafide duty of the Government to pay for the beneficial act of an employee as it is Welfare State. All the rules and regulations are to be considered in favour of the Government employee liberally and to his benefit. The State cannot be permitted to have an iron heart in such matters. It is not the plea of the respondents that the petitioner has not incurred the expenditure on his treatment. It is being noticed by this Court that quite often writ petitions are filed to obtain redress in the matter of reimbursement of medical expenses particularly by those who have retired from service, which is a sad commentary on the working style of the concerned departments and particularly of the head of those departments who must own responsibility for the indifference and delays in this regard."
In Dr. Harinder Pal Singh v. State of Punjab 2014 (3) S.C.T. 483 it was held that the medical reimbursement policies are to be interpreted liberally and that reimbursement cannot be denied on the ground that the petitioner had not gone for treatment to the approved hospital but had chosen to get himself treated abroad. The respondents were directed to process the claim made by the petitioner as per rates prescribed by Director, Health and Family Welfare, Punjab.
"15. The relationship of a doctor and a patient is a matter of confidence and trust. Any patient would like to go to the best doctor available. Even if the petitioner had not gone to any Government or any of the approved hospitals and had chosen to get himself treated from an hospital abroad, the liberty cannot be left with the Head of the Department to refuse reimbursement, once it is found that the patient had taken treatment. It is not that only medicines are to be taken orally. The rejection of the claim 10 of 20 CWP-22482-2017 [11] on these hypertechnical grounds, is totally arbitrary. The beneficial policies cannot be interpreted or kept in water tight compartment. These are to be interpreted liberally considering the facts and circumstances of the case. The fact that the petitioner had been operated upon in Prince Wales Hospital, Australia for his disease is not in dispute. Once that is so, the entitlement of the petitioner to reimbursement of the expenses incurred by him in terms of the rates prescribed by Director, Health and Family Welfare, Punjab cannot be denied."
Similarly, the Rajasthan High Court in Jawahar Lal Bohra v.State of Rajasthan (Rajasthan) 2014(3) S.C.T. 242 held that medical attendance Rules providing for reimbursement of the medical expenses to the Government servant and retired pensioners, was a beneficial and welfare legislation meant for the welfare of the Government servants and, therefore, a liberal, sympathetic and objective interpretation for the applicability of these Rules, has to be made by the Courts. The Court noted that specifying a very limited of number of hospitals at a few places only where treatment could be availed of could only be construed as making the applicability of the said Rules ineffective. The Court held that the petitioner who had undertaken treatment from a hospital not specified was entitled to reimbursement at the rate applicable in the recognised hospital of the State Government The relevant observations of the Court are as under:
"13. The recognition given to only 3 hospitals of Delhi for the purposes of Rule 6, while specifying 11 hospitals for Rule 7 at Delhi and Mumbai, also does not have any logical reasoning or rational nexus behind it. If the contingency of taking the 11 of 20 CWP-22482-2017 [12] treatment outside the State of Rajasthan, for the reasons beyond the control of the Government servant or in any emergency is duly recognised as a fact entitling the Government servant for such reimbursement, the specification of different set of hospitals for two different rules, and that too to a very limited extent of number of hospitals at a few places only viz. Delhi or Mumbai, can only be construed as making the applicability of the said Rules ineffective even though the purpose of these Rules is to make the reimbursement of expenses subject to fulfilment of other conditions. For this reason on a harmonious construction of both these Rules 6 & 7 of the Rules of 1970, this Court may have to even invoke and apply even the Appendix-11, list of hospitals, for the reading the same with the Rule 6 of 1970 Rules, and not restricting the same for Rule 7 only. Even though, the petitioner took his treatment in the Asian Heart Institute, Mumbai, and not in the Bombay Hospital, Bombay, which is included in the Appendix-11 of the Rules of 1970, which is to be read with both Rule 6 & 7, the purpose of the aforesaid harmonious construction is to allow the reimbursement of medical expenses to the petitioner at least to the extent of the rates applicable in the recognised hospital of the State Government at Mumbai, namely, Bombay Hospital, if not, the actual expenses incurred by him in the Asian Heart Institute, Mumbai. Not doing so would obviously render the petitioner remediless and without any reimbursement in the present case, which will defeat the purpose and objective of the 1970 Rules.
Apparently and avowedly, these medical attendance Rules providing for reimbursement of the medical expenses to the Government servant and retired pensioners, is a beneficial and welfare legislation meant for the welfare of the Government servants and, therefore, a liberal, sympathetic and objective interpretation for the applicability of these Rules, has to be made by the Courts and not a pedantic or narrow approach of the matter would subserve the interest of justice."
Hon'ble the Supreme Court in Shiva Kant Jha Vs. Union of India AIR 2018 SC 1975 considering this question has held that a Government employee during his life time or after retirement is entitled to get the benefit of medical facilities and that no fetters can be placed on his rights. It was further held that the claim of reimbursement cannot be rejected solely on the ground that the Hospital where he was treated was not included in the Government Order, It was held that in such a case the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once that is established, the claim cannot be denied on technical grounds. The relevant observations are as under:
"13. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would 14 of 20 CWP-22482-2017 [15] deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court."
11. On the other hand, the rulings citied by the Opposite Parties are not applicable to the facts of the present case and the same are distinguished.
12. In the present view of the matter, we are of the considered opinion that the Opposite Parties No.1 and 2 have wrongly and illegally rejected the claim of the complainant.
13. Now come to the quantum of compensation. The complainant in his complaint has claimed the reimbursement of his medical bill upto the extent of Rs.2,90,544/- and this amount spent by the complainant on his treatment has nowhere denied by the Opposite Parties No.1 and 2 by filing and cogent and convincing evidence and hence, the claim of the complainant to that amount is genuine and we allow the claim of the complainant accordingly.
14. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainants and direct the Opposite Parties No.1 and 2 jointly and severally to reimburse the medical bills of the complainants amounting to Rs.2,90,544/- (Rupees two lakh ninety thousands five hundred and forty four only) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 25.10.2017 till its actual realization. Opposite Parties No.1 and 2 are also directed to pay compensation to the complainants for causing mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Parties jointly or severally within 45 days from the date of receipt of copy of this order, failing which the complainants shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:28.04.2022.
(Aparana Kundi) (Mohinder Singh Brar) (Amrinder Singh Sidhu)
Member Member President
