BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 31^ST DAY OF AUGUST 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To take cognizance of the unfair trade practice deficiency in service and breach of contract of the OP under the provisions of C.P. Act, secure the presence of the Ops and direct the OP to pay the repudiated amount of Rs.70,000/- along with interest at 12% p.a., from the date of disallowing the payment of the said amount of Rs.35,000/- on 17.09.2021 and another Rs.35,000/- on 01.02.2022 till the date of payment.
2. To punish the OP in accordance with law.
3. To pass necessary order/s to adequately compensate the complainant, including cost of litigation.
4. To pass any other order/s or direction to the OP which the Hon’ble Commission deems fit.

 The case set up by the complainant in brief is as under:-

The complainant is a Retired Officer. The OP is an insurance company doing General Insurance business.  The complainant had secured a general insurance policy bearing No.423301/48/2016/4309 for the period from 04.01.2016 to 03.01.2017 for an insured sum of Rs.6,00,000/-.  The said policy was renewed for the year 2021 and payment of premium of Rs.39,178/- was paid on 24.12.2020 and the cheque was cleared on 29.12.2020 and a receipt has been issued by the authorized signatory of the OP company.  

2. The complainant had visited his Ophthalmologist at Nethradhama Hospital pvt. Ltd., situated at Jayanagar, Bangalore for his regular check up of his eyes.  After preliminary investigation his Ophthalmologist advised him to undergo cataract surgery to both his eyes after thorough investigation.
3. The complainant underwent cataract surgery to his right eye on 16.07.2021 and paid a sum of Rs.73,500/- for the procedure and surgery Rs.35,000/- towards Femto Laser Assisted Phacoe mulsification with  catalysts with foldable IOC implantation under TA-RESPONDENT under Guarded Visual Prognosis.  Similarly the complainant has undergone the cataract surgery to his left eye on 28.09.2021 and again he has paid Rs.73,500/- towards Femto Laser Assisted Phacoe emulsification with  catalysts with foldable IOC implantation under TA-RESPONDENT under Guarded Visual Prognosis at the said hospital.  
4. The complainant in all has spent Rs.1,47,000/- for cataract surgery to both of his eyes and claimed total bill amount for reimbursement on cashless basis but to the surprise of the complainant M/s Raksha Health Insurance TPA Pvt. Ltd., C/o. Escorts corporate center, Faridabad, Haryana, the service providers to the OP have repudiated the claim to the extent of Rs.35,000/- in the claim settlement voucher dated 17.09.2021 with an endorsement that receipt towards package deviation has not payable and again disallowed Rs.35,000/- in claim settlement voucher dated 01.02.2022 for the same reason.
5. It is further case of the complainant that as a valid policy holder he is entitled for cash reimbursement under cashless basis of Rs.1,47,000/- including Rs.70,000/- spent by him towards Fem to laser charges under cashless settlement scheme.  Further he has right to avail any advance technology i.e., Femto laser surgery and entitle to claim reimbursement which is well within the insured limit of Rs.6,00,000/- as per the policy issued by the OP.  The complainant is aggrieved by the repudiation of Rs.70,000/- towards Femto laser charges which is not at all justified resulting in unfair trade practice, breach of contract and deficiency in service.
6. The OP have defaulted in repudiating the payment of Rs.70,000/- without any justification, reasoning causing financial losses and financial injury to the complainant.  The complainant aggrieved by the same has got issued legal notice dated 06.10.2022 even though the OP have acknowledged the receipt of legal notices, but they failed to reply to the legal notice for the reason best known to them. The complainant after having waited for a reasonable time has approached this commission and filed this complaint. Hence the complainant prayed for allowing the complaint.
7. In response to the notice, OP1 and 2 appears and files version.
8. It is the case of the OP that the complaint is wholly false, frivolous and vexatious and the same is not maintainable either in law or on facts.  The complainant has suppressed material facts and has misrepresented several facts to suit his convenience.  The complaint is filed with malafide intention of causing unlawful loss to this OP and to make unlawful gain in his favour and the same is liable to be dismissed.
9. OP have admitted the happy family floater 2015 policy obtained by the complainant and further admitted that it is valid for a period from 04.01.2021 to 03.01.2022 for a sum of Rs.6,00,000/- for two people. The said insurance policy is subject to its terms and conditions and applicable loss.
10. It is further case of the OP that after receipt of the complainant’s claims the Raksha Health Insurance TPA has processed the claim in accordance with the terms and conditions of the policy.  They have received the claim of the complainant on 26.07.2021 for a claim amount of Rs.73,500/- and they have settled the amount for Rs.38,500/- and again received the claim dated 17.09.2021 for a claim amount of Rs.45,716/- and they have settled the amount for Rs.4,613/- and again they have received the claim on 07.10.2021 for a claim amount of Rs.73,500/- and they have settled the amount for Rs.38,500/- and again received claim of the complainant on 01.02.2022 for an amount of Rs.38,929/- and they have settled the amount for Rs.3,201/- and they have again received the claim on 15.03.2022 for Rs.400/- and they have settled the amount of Rs.400/-. This OP and TPA have acted in accordance with law and terms of the policy and settled the claim to the extent permissible. The details of the claim i.e., permissible and thus paid and not permissible and not paid are provided in the claim settlement vouchers. Hence there is no deficiency in service whatsoever on the part of this OP.
11. It is also the case of the OP that the complaint is bad for non-joinder of Raksha Health Insurance TPA who is a necessary party.
12. The OP has admitted that the complainant in all has spent Rs.1,47,000/- for cataract surgery to his both eyes and has claimed the total bill amount for reimbursement on cashless basis and this OP has been settled the amount to the extent permissible as detailed in the claim settlement letter. Hence the service providers have repudiated the claim to an extent of totally Rs.70,000/- with an endorsement that the receipt towards package deviation as not payable.  The claim of the complainant that he is a valid policy holder is entitled for cash reimbursement under cashless basis of Rs.1,47,000/- including Rs.70,000/- spent by him towards Femto laser charges under cashless settlement scheme are misleading. The further contention of the complainant that he has a right to avail any advanced technology i.e., Femto Laser Surgery and entitle to claim reimbursement which is well within the insured limit of Rs.6,00,000/- as per the policy issued by this OP are subject to terms and conditions of the policy.  The OP have further denied all the other allegations made by the complainant. They have further denied that they are liable to pay the amount claimed by the complainant. Hence prayed for dismissal of the complaint.
13. The complainant has filed his affidavit evidence and relies on 08 documents.  Affidavit evidence of OP has been filed and OP relies on 06 documents.
14. Heard the arguments of advocate for the both parties.   Perused the written arguments filed by the complainant.
15. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

17. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, evidence, written arguments filed by the complainant and documents filed by both the parties.
18. It is undisputed fact that the complainant secured a general insurance policy as per Ex.P1, vide policy No.423301/48/2016/4309 and it was renewed from time to time and the sum insured is Rs.6,00,000/-. The policy was in force from 04.01.2020 to 03.01.2021 as Ex.P1. it is also not in dispute that the complainant has underwent cataract surgery as per the advise of his ophthalmologist for both of his eyes and he was recommended to go for FEMTO LASTER ASSISTED PHACOMULSIFICATION  with catalyst with foldable 10L implantation under TA-RE under guarded visual prognosis. The cataract in his right eye was removed on 16.07.2021 and his left eye on 28.09.2021 following the aforesaid procedure at Netharadham Hospital.  The hospital has raised a total amount of Rs.1,40,000/- towards the surgery. The OP have paid only Rs.70,000/- out of the amount of Rs.1,40,000/- claimed by the complainant.  The OP have repudiated the claim of the complainant for claiming Rs.73,500/- for each eye and restricted the charges to Rs.35,000/- each eye on the ground that there is a package deviation as not payable.
19. In support of his contention the complainant has filed his affidavit evidence and relied on Ex.P.2 to P4 the hospital and medicine bills and the discharge summary. The complainant has produced the claim settlement voucher sent by the OP as Ex.P5, the OP have settled the amount to an extent of Rs.35,000/- each for both the eyes and they have rejected the claim of the complainant for another Rs.70,000/ spent by the complainant.
20. The main objection raised by the OP is that the complaint is bad for non-joinder of necessary parties since the complainant has not made the Raksha Health Insurance TPA as a party in this complaint.  It is clear from the documents produced by both the parties before this commission that Raksha Health Insurance TPA is only a service provider to the OP1 and they have acted as a mediator in processing the claim of the complainant to the OP1 and they are nothing to do with the service provider to the OP1. Hence the said TPA is not a necessary party in this complaint. 
21. Under these circumstances the objection raised by the OP for non-joinder of necessary parties cannot be accepted and liable to be rejected. The OP1 being the principle is vicariously liable for all the acts and the actions of the service provider resulting in deficiency in service.
22. It is also the main objection raised by the OP that they have settled the claim of the complainant in accordance with the terms and conditions of the OP insurance policy.  The treatment comes under fixed package charges and cashless approvals through TPA. Accordingly this OP and TPA have acted in accordance with law and terms of the policy and settled the claim to the extent permissible. They have rejected the part of the claim on account of package deviation as not payable.
23. It is the specific grievance of the complainant that a doctor with BHMS qualification of the OP company has scrutinized his claim and has disallowed as pre and post hospitalization charges of Rs.35,000/- to each eye.  The service provider ought to have sought clarification from the complainant or from the hospital where he got cataract surgery done before repudiating the claim.  The doctor who has scrutinized the claim is not competent to do so.  It is further grievance of the complainant that Nethradharama hospital is a well known reputed and well established hospital in Bangalore and their investigation and line of treatment is of high quality.  Hence there is no reason to OP to repudiate the claim of the complainant. The treatment availed by the complainant to his eyes which is the most precious human organ.  The importance of sight cannot be underscored. The allegation made by the OP that the malafide intention of this complainant for causing unlawful loss to them and to make unlawful gain to this complainant is not good taste and no patient ever do this to enrich himself at the cost of his health.
24. It is further grievance of the complainant that only an expert in the field can only decide what is the best line of treatment for his patient and the OP or their service provider are not competent to decide on that. Indeed the Ops before repudiating the claim ought to have sought an expert opinion.  The Ops have repudiated the claim of the complainant unilaterally without justification and without affording an opportunity to this complainant.  Ops have settled the claim to an extent permissible is an act on the part of the Ops to enrich themselves at the cost of poor and helpless patients, which resulted in deficiency of service.  The complainant has specifically denied that the contention of the OP under guarded visual prognosis are not fully correct in the treatment of cataract MICS with unifocal Lens + Femto Second Laser charges TA-RE is not backed by any material or the opinion of an expert in the field.
25. In order to prove their contention the Deputy Manager of the OP has filed his affidavit evidence and relied on six documents. Ex.R1 to R5 are the claim settlement vouchers and Ex.R6 is the authorization letter.  None of the parties have produced the entire policy including terms and conditions of the policy before this Commission.  The cataract surgery undergone by the complainant is not at all excluded by the policy.  The only contention taken by the OP is that there is a restriction and they are paying only Rs.35,000/- for each eye for the said surgery. The laser surgery opted by the complainant is not covered in the package and hence they are not liable to pay the entire amount and hence they have repudiated the claim of the complainant. 
26. The complainant is a senior citizen and nowadays the eye problem is a common problem and as per the advise of the ophthalmologist normally the senior citizens undergo the cataract surgery. In this complaint, the complainant has opted for the laser assisted cataract surgery at Nethradhama hospital as per the advise of his doctor. It is a new method of treatment and technology adopted to cure the defect of the eyes.  The treatment taken by the complainant has not been excluded by the medical counsel of India.  When the type of the surgery underwent by the complainant is taken into consideration. It is only a new method of treatment and technology adopted by the Ophthalmologist.  When the complainant has taken the policy for the insured amount which covers Rs.6,00,000/- he is entitle for the entire amount spent by him for the surgery and the hospital expenses.  The repudiation of the claim made by the OP on the ground that it is not covered under the package is beyond the scope of natural justice and it is illegal and it amounts to deficiency in service and also amounts to unfair trade practice on the part of the Ops. Hence the complainant is entitled for the amount of Rs.70,000/- spent by him for the surgery and repudiated by the OPs.  In addition to this the complainant is also entitled for damages for his mental and physical sufferance when the Ops repudiated his claim which we quantify at Rs.25,000/-. The complainant is also entitled for Rs.10,000/- towards litigation expenses. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
27. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The Ops are jointly and severally hereby directed to pay to the complainant a sum of Rs.70,000/- along with interest at 12% p.a., from the date of disallowing the payment of the said amount of Rs.35,000/- on 17.09.2021 and another Rs.35,000/- on 01.02.2022 till the date of payment.
3. Ops are further directed to pay Rs.25,000/- towards damages along with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 60 days on Rs.70,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 31^ST day of AUGUST, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;