PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant has prayed that the Opposite Parties be directed to pay Rs.1,23,530/- to the Complainant with interest @ 18% p.a. from the date of payment made to SBF Health Care Pvt. Ltd. or from the date of filing of present complaint as this Forum may deems fit and proper. The Complainant has further prayed that the Opposite Parties be directed to pay compensation of Rs.25,000/- to the Complainant towards mental agony and inconvenience caused to her and cost of Rs.25,000/- towards this proceeding and advocate’s fees.  The Complainant has prayed Rs.5,000/- for being expenses incurred by the Complainant towards correspondence and conveyance

2)        According to the Complainant, she has obtained Mediclaim Policy for the period from 09/07/2012 to 08/07/2013 from the Opposite Party No.1 and the sum insured was Rs.1,50,000/-.  The copy of the said mediclaim policy is at Exh.‘A’.  It is alleged that the Complainant was having pains in her knees and was not able to do her routine work.  The Complainant had taken medicines from her family doctor but she did not get relief.  The Complainant came to know about non evasive treatment of Osteoarthritis called Sequential Programmed Magnetic Field (SPMF) which was originally known as Quantum Magnetic Resonance (QMR Therapy) being offered by Bangalore based Company, Cartigine Health Care Pvt. Ltd.  The Complainant has also come to know that the branch of the said Health Care Pvt. Ltd. is also in Mumbai at Mahakali Caves Road, Andheri (E), Mumbai – 93. The Complainant consulted for the said treatment to Dr. Gajare, MS. (Ortho) and she had obtained the treatment (SPMF) during the period 23/12/2012 to 12/01/2013 provided under the guidance of Dr. Gajare. It is submitted that during the said treatment the affected joints were exposed to sequentially programmed management field for one hour and followed by physio therapy for one hour and observation for one hour.  The total stay during the above period at the SBF Healthcare Centre per day was three hours.  It is submitted on the first day of treatment the Complainant was admitted for 8 hrs. tentatively for blood investigation, rehab exercise, pain management, etc. The Complainant was thereafter, advised to take vitamins followed by certain diet restrictions for next 3 months.  It is alleged that the said treatment was day care treatment and as such, there was no need of hospitalization for single day. The copy of discharge summary report issued SBF Healthcare Centre is marked as Exh.‘B’.  According to the Complainant, she has paid Rs.1,23,530/- to the said SBF Healthcare Centre and for medicines as per bill dtd.12/01/2013 and other bills.  The copies of the said bills are at Exh.‘C’ & ‘E’.  The copies of the payments made by the Complainant are at Exh.‘D’.  It is alleged that the treatment which the Complainant had obtained is technologically advanced treatment which is carried out by newly developed highly innovative machine.  It is submitted that the infrastructure for the treatment of the Complainant was only available at SBF Healthcare Centre. It is submitted that the Complainant had submitted claim form to the Opposite Party No.1 alongwith medical papers and documents.  The copies of the said documents are at Exh.‘E’.  It is alleged that the Opposite Party No.2 by letter dtd.30/03/2013 rejected the claim for the reason that the same is not payable under clause no.4.4.19. The copy of the said letter is marked as Exh.‘F’. It is alleged that the medical treatment which was obtained by the Complainant is proven technology and standard treatment accepted worldwide.  The said treatment had proven to be effective and provides reliefs to the patient eliminating the need for knee replacement surgery.  It is thus, submitted that the repudiation of the claim lodged by the Complainant and communicated by the Opposite Party No.2 is deficiency of service and unfair trade practice. The Complainant has thus, prayed the reliefs as mentioned in para no.1 of this order.

3)        The Opposite Parties contested the claim by filing written statement. It is contended that there is no deficiency or negligence in the services rendered by the Opposite Parties. It is admitted that the Complainant had lodged claim of Rs.1,23,500/- to the Opposite Parties.  However, it is contended that as per terms and conditions of the policy, the said claim has been repudiated in view of clause 4.4.19 of mediclaim policy (2007).  It is the case of the Opposite Parties that the treatment availed by the Complainant at SBF Healthcare Pvt. Ltd. for severe Osteoarthritis of both knees was an experimental and unproven treatment which is not recognized by the Indian Medical Council and therefore, the claim was repudiated as per the policy terms and conditions.  It is contended that as per circular of Opposite Party No.1 dtd.21/06/2010, it is found that the policy is subject to exclusion of Rotational field Quantum Magnetic Resonance hence, the claim of the Complainant was repudiated.  The Opposite Parties have denied all the parawise allegations made in the complaint and submitted that the Complainant is not entitled to any relief claimed by her and the same is liable to be dismissed with cost.

4)        The Complainant has filed her affidavit of evidence.  The Opposite Parties have filed the evidence of Lata S. Iyer, Authorized Signatory of Opposite Party No.1 & 2.  Both the parties have filed their written arguments.  We heard oral argument of Smt. S.D. Gandhi, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Parties.  We have perused the documents placed on record in this case. 

5)        While considering the claim made by the Complainant in this complaint it is necessary to be seen that the whether the Opposite Parties have rightly rejected the claim lodged by the Complainant or not. The Opposite Party No.2 by letter dtd.30/03/2013 has informed to the Complainant that the claim stands non payable as under –

            “We are in receipt of your claim document.  As per available documents patient was admitted on 23/12/2012 with C/o both knees, treated consecutively daily for 3 hrs. with SPMF (Magnetic Therapy) and discharged on 12/01/2013 with follow-up advice. As this type of treatment is not recognized by Indian Medical Council and falls under unproven treatment hence, this claim is non-payable under exclusion clause 4.4.19.  As per clause 4.4.19 experimental treatment, unproven treatment (not recognized by Indian Medical Council) of both knees.” 

6)        The following points arise for our determination and our findings thereon with reasons as under –

Point No.1 :  Whether the Opposite Parties prove that the claim for the treatment of  SPMF  obtained  by  the  Complainant  for  both  the  knees  for

                       Osteoarthritis during the period from 23/12/2012  to 12/01/2013 at SBF  Health  Centre  at  Mumbai  as  being  experimental treatment

                       and unproven treatment (not recognized by Indian Medical Council) can not be granted ?

Ans.            :  Not proved.

Point No.2  :  Whether the Complainant proves  that  she  is entitled for treatment charges and interest thereon from the date of claim i.e. 01/02/2013

                         as well as compensation and cost of the proceeding ?

Ans.            :   Yes, proved.

Point No.3  :  Whether the Complainant proves that she is entitled for Rs.5,000/- towards conveyance, telephonic charges, etc. ?

Ans.            :   Not proved.

Point No.4  :  What order ?

Ans.            :  As per final order.

7)  Point No.1 & 2 :  The Opposite Parties have specifically come out with the case that as the Complainant has obtained treatment at SBF Health for severe Osteoarthritis of Both Knees and she availed treatment i.e. Quantum Magnetic Resonance Therapy which is an experimental and unproven treatment (Not recognized by Indian Medical Council) she is not entitled for the claim lodged to the Opposite Parties.  In this context, in our view the burden lies to prove that the treatment obtained by the Complainant is excluded as per the clause No.4.4.19 of the Mediclaim Policy which the Complainant had obtained from the Opposite Parties.  The Opposite Parties though raised such contention while repudiating the claim of the Complainant have not produced any documentary evidence to establish which are the approved treatment recognized by Indian Medical Council.  The Opposite Parties have also not produced on record any documentary evidence to show that the SPMF treatment is not recognized by the Indian Medical Council.  In our candid view only raising such objection by the Opposite Parties would not be justifiable.  The Opposite Parties are expected to establish it by any circular of Indian Medical Council to that effect.  As the Opposite Parties have not placed on record any such type of authorized documentary evidence showing that the treatment obtained by the Complainant is not recognized by the Indian Medical Council and only mentioning the same in the mediclaim policy clause would not be held just and proper for repudiating the claim.  The Opposite Parties have also not produced the copy of terms and conditions to substantiate their contention. The Opposite Parties have not disputed that the Complainant has not obtained SPMF treatment at SBF Health Care for severe Osteoarthritis of Both Knees and she had incurred an expenditure of Rs.1,23,530/- for such treatment.  In the absence of any proof produced by the Opposite Parties in our view the repudiation made by the Opposite Parties regarding the claim lodged by the Complainant is not at all justifiable.  Furthermore, the Complainant has produced copy of order in Complaint Case No.221/2010, decided on 14/08/2013 by this Forum in the case of Mrs. Sanyuktaben G. Shah V/s. the Manager, New India Assurance Co. Ltd., in which the Advocate of the Complainant Smt. S.D. Gandhi had placed on record the literature showing that the SPMF treatment for Osteoarthritis significantly decreases pain, increases mobility, stability and power of the knee joint, and increases the cartilage thickness, establishing the efficacy of SPMF in chondrogenesis.  Furthermore, in the aforesaid case as per the documents of objectives of Indian Medical Council which are placed on record by the Advocate for the Complainant, i.e. Smt. S.D. Gandhi, it appears that the said Council is not having object to approve any specific treatment or disapprove any treatment.  We therefore, hold that the contention raised by the Opposite Parties for justifying the repudiation itself is not proved by them. 

            The Complainant has also produced on record the copies of orders passed by Ombudsman, Kolkatta, in the case of Prabir Kumar Chatergi V/s. The New India Assurance Co. Ltd., dtd.19/06/2009, the order of Additional District Consumer Forum, Bangalore in Consumer Case No.599/2009 Sunitha Ahuja V/s. The New India Assurance Co. Ltd., dtd.26/11/2009.  the order of South District Consumer Forum, in C.C. No.208/2008 in the case of Mrs. Indira C. Patel V/s. United India Insurance Co. Ltd., dtd..31/10/2009, order of the same Forum in C.C. No.231/2010 in the case of Rajesh Nambiar V/s. National Insurance Co. Ltd., dtd05/10/2011, order of Mumbai Suburban District Forum in C.C. No.220/2010, dtd.31/05/2012 in the case of Arun G. Bharal V/s. Oriental Insurance Co. Ltd., of the same Forum in the case of Krushna Kumar Gupta V/s. United India Insurance Co. ltd. in C.C.No.618/2010, dtd.05/04/2013 and Central Mumbai District Forum in C.C.No.73/2011, decided on 20/08/2011 in the case of Kishori Karkhanis V/s. Reliance General Insurance.  In all the aforesaid cases the Insurance Companies have raised similar objections and also some more objections such as, not admitting by the patient in the hospital for continuous period of treatment or more than 24 hours, etc. however, in all the aforesaid cases the said objection were turned down by the judicial decisions.  We therefore, hold that only raising the objection and relying on clause no.4.4.19 of the policy by the Opposite Parties would not be sufficient to justify the repudiation on their part.  The same must be proved by the authentic evidence to that effect.  The Opposite Parties have failed to prove the same. 

            The Opposite Parties have not denied that the Complainant has incurred an expenditure of Rs.1,23,530/- for the treatment which she had taken from SBF Health Care Centre, Mumbai.  The Complainant has also produced bills issued by the said SBF Health Care Centre alongwith complaint.  In our view therefore, the Complainant is entitled for that amount of Rs.1,23,530/- from the Opposite Parties.  We also hold that as the Opposite Parties have denied the claim without any justification and adopted unfair trade practice as discussed above the Complainant is entitled for compensation of Rs.10,000/- from the Opposite Parties. The Complainant is also entitled for the interest @ 6% p.a. from the date of 01/02/2013 (i.e. lodging of claim to the Opposite Parties) on the amount of Rs.1,23,530/- till its realization. The Complainant is also entitled for the cost of Rs.5,000/- towards this proceeding from the Opposite Parties. In the result we answer the point no.1 as not proved and Point No.2 as proved.          

10)  Point No.3 & 4  :  The Complainant has alleged that she is entitled for an amount of Rs.5,000/- from the Opposite Parties towards conveyance charges and correspondence charges. However, the Complainant has not produced any documentary evidence to establish such claim against the Opposite Parties.  We therefore, hold that the claim of Rs.5,000/- made by the Complainant against the Opposite Parties for the above purposes is not required to be granted.  In the result we answer point no.3 as not proved and pass the following order –

O R D E R

                      i.            Complaint No.109/2013 is partly allowed against Opposite Parties.

ii.            Opposite Parties are directed to pay Rs.1,23,530/- (Rs. One Lac Twenty Three Thousand Five Hundred Thirty Only) to the

               Complainant with interest @ 6% p.a. from 01/02/2013 till actual payment.

iii.           Opposite Parties are directed to pay Rs.10,000/- (Rs. Ten Thousand Only) as compensation to the Complainant towards unfair

               trade practice adopted against her.

iv.          Opposite Parties are directed to pay cost of Rs.5,000/-(Rs. Five Thousand Only) to the Complainant. 

v.           The Opposite Parties are directed to comply with the above order  within one month from the date of service of this order.  

vi.          Certified copies of this order be furnished to the parties.