OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.68/09

Present:-

                        1)Md.Sahadat Hussain, A.J.S.  -         President

                        2)Sri Upendra Nath Deka         -        Member

            Md.Mahbubur Rahman                                                    -Complainant

            S/o. Md.Lutfur Rahman,

            R/O.House No.14,Hatigaon, Housing Colony

            Hatigaon,Vetapara Road.P.S.Hatigaon

            District: Kamrup ,Assam                                  

                           -vs-

1)        Reliance General Insurance Company Limited.         -     Opp.parties

            (Anil Dhirubhai Ambani Group

A Reliance Capital Company,Regd.Office,

Reliance Centre,19. Walchand Hirachand Marg,

Ballard Estate, Mumbai-400001,

Represented by its President & CEO

2)        The Branch Manager,

            Reliance General Insurance Company Ltd.

            Anil Plaza, ABC,Guwahati.

3)        Medi Assist India Pvt.Ltd.

            (Banglore) No.797,Annapaorna Building,10^th Main, 4^th Block,

            Jayanagar, Banglore-560011

            Represented by Managing Director.

4)        Health India Medical Services Pvt.Ltd.,           -  Proforma Opp.Party

            L.B.S.Marg, Gandhi Nagar, Virkhorli (W),

            Mumbai-400083, Represented by Dr.Vinod Jain,

            The General Manager  

            Appearance-           

Learned advocates Mr.M.Shring for the complainant

Learned advocate Mr.M.R.Islam for the Opp.Party No.1 & 2.

Date of argument-          14.7.2016

Date of judgment-          2.8..2016 

JUDGMENT

This is a complaint u/s 12 of the Consumer Protection Act, 1986.

1. The complaint filed by Md. Mahbubur Rahman on 28.7.2009 against Reliance General Insurance Company Ltd., Mumbai and three others was admitted on 28.7.2009 and notices were served on all the said opp.parties and Opp.party No.1 & 2 filed their written statement while Opp.Party No. 3 & 4 namely Medi Assist India Pvt.Ltd.,Banglore and health India Medical Services Pvt.Ltd., Mumbai was proceeding on exparte vide this forum’s order dtd. 4.9.2010. Thereafter, the complainant filed his affidavit on 7.1.11 and he was also cross examined by Opp.Party No.1 & 2 side on 14.9.11 and thenafter one, Sri Samrat Baruah filed evidence in affidavit on behalf of Opp.Party No.1 & 2 on 4.10.2013 and he was cross examined by the ld counsel of the complainant. Thereafter ld advocate Mr. M.R.Islam filed written argument for Opp.Party No.1 & 2, but complainant side’s ld counsel has not filed any written argument and thenafter on 14.7.16 we have heard argument of ld advocate Mr.M.Shring for the complainant and ld advocate Mr.M.R. Islam for Opp.Party No.1 & 2 and today we delivered the judgment which is below-

2. The gist of the pleading of the complainant is that the complainant purchased individual mediclaim policy under Gold plan bearing policy No. 282510261327 from Opp.Party No.1 namely Reliance General Insurance Co.Ltd. for a sum of Rs.1,00,000/- covering Domiciliary Hospitalisation limit for 10% of some insured and pre-existing expenses incurred for 60 days to hospitalization and expenses incurred upto 90 days  after hospitalization with effect from 28.3.2008 to midnight to 27.3.2009 with premium of Rs.1125/- from 28.3.2008 . In the month of August he started suffering from acute pain and stiffness of his lower limbs due to his fall in the bathroom for which he took medical treatment on 21.8.2008 from physician who advised him for early hospitalization with a comment to administer Injection “Enbrel”,1^st dose, under observation to see any side effect, but due to his insufficient financial support he failed to take that treatment in time. However , he had undergone three tests i.e. HRCT Thorax, R/E blood and CRP respectively in Down Town Hospital. But after accumulating some money he get admitted at International Hospital on 19.12.08 to indoor patient for taking said direction and the first dosage of injection “Enbrell” was administered to him under complete observation of his treating doctor in conformity with prescription dtd 21.8.08, but was discharged on 20.12.08 with a advised that the said injection should be administered to him twice in a week for six weeks and in the said term he incurred expenditure of Rs.925/- for admission, Rs. 5,350/- for medical investigation and Rs.87,178/- for medicine in the said hospital and after completion of said treatment he applied to the opp.parties for reimbursement of his expenses of Rs.93,453/- that was done by him in the said treatment. According to his health policy basing on the “Guide for claims” contained a clause bearing No.step-4 under the heading “procedure for reimbursement claims” which clearly states that insured can lodged a claim with TPA for reimbursement by filling the claim form and attaching the required documents mentioned in the claim form and accordingly he lodged his claim with T.P.A. i.e. Opp.Party No.3 for reimbursement of his expenditure and after receiving his claim Opp.Party No.3 started their investigation from three angles- (i) from the claimant (ii) from the authorizedhospital where the claimant was admitted(International Hospital) (iii) by involving another investigated agency, Health India (Proforma Opp.party No.4) to investigate into the matter. Opp.Party No.4 separately investigated the matter and interrogated him and verified relevant documents and also contacted the authority of International Hospital and also visit the pharmacy from where he brought the medicine; and Opp.Party No.4 also met his treating doctor and he himself assessed Opp.Party No.4 in his investigation. As per requires of Opp.Party No.3 he submittedall the documents relating to his hospitalization . But Opp.Party No.3 again asked for some additional documents and then he approached International Hospital for the documents sought by Opp.Party No.3, but  they denied the saying that there was no such procedure to hand over the indoor case papers to the patient, but the hospital authority informed him thatthey have already sent papers directly to Opp.Party No.3, but Opp.Party No.3 totally denied his claim. He approached the hospital authority to hand over the same to him on the ground that as per procedure the hospital documents cannot be handed over to the patient , but informed him that they had already sent the documents to Opp.Party No.3. Opp.Party No.3 repudiatedthe claim explaining reason that Clause 21 of the policy quotes that “there is no active line of treatment necessitating stay in hospital and the said treatment can be done on an OPD basis. The records of medical history says that there requires immediate strict observation for another 24 hours from the time of consumption of the said injection (Enbrel) to see the side effect if any having there are numerous examples of its side effects immediately after taking the first dose of said injection. The doctors generally advise to take the first dose of Enbrel injection in hospitals only so that the doctors available could monitor the patient very closely. Like clause-21, clause -28 of the policy exclusion is also fabricated with primary motive to misguide the complainant. During the period from 21.8.08 to 28.8.08, the tests of HRCT Thorax, R/E blood,CRP were done at Down Town Hospital on the prescription given by the doctors who treated him. Opp.Party No.3 as well as Opp.Party No.1 unlawfully rejected his claim. Opp.Party No.1 is totally bound to pay the costs and expenses as well compensation to him and also to return Rs.93,453/- which was already paid by him during treatment Opp.Party NO.1 is liable to pay him compensation to the tune of Rs.1,00,000/- for causing harassment and mental agony to him by Opp.Party No.1 and Opp.Party No.3 along with the cost of the proceeding.

3. The pleading of Opp.Party No.1 and 2 (Reliance General Insurance Company Limited) is that the complainant has no cause of action for filing the complaint. The complainant sent a cashless pre-authorisation request for treatment of ankylosing Spondylitis for administration of Enbrel injection , but the said request was denied on the ground that the insured   was only within 3^rd month of policy cover and ailment is a chronic degenerative disease of spine and sacroiliac joints leading to stiffness in the back. The claim of the complainant that he got stiffness in lower limbs due fall in the bathroom is totally false and misleading. The third party medical experts, whose opinion was sought by them, gives opinion that falling in the bathroom cannot cause chronic ailment of ankylosing Spondylitis as stated by the complainant . The complainant had not disclosed at the time of proposal of the policy that he was suffering from chronic ankylosing Spondylitis intentionally although he was suffering from that disease at that time “ As per policy,an insured become eligible for pre-existing ailments after two claim free years but the complainant claimed reliefon the third month of the policy. It is fact that the complainant lodged a claim with Medi Assistant (Opp.Party No.3), the third party Administrator (TPA) of Opp.Party No.1 and 2 and they investigated the matter and found that the complainant got himself admitted at International Hospital, Guwahati. The medical opinion, they sought, states that in the case of administration of Enbrel injection in subcutaneous route, one day care only required in outdoor to examined and observe the side effect of said injection and side action is generally seen within few hours , which can be reversed immediately and therefore the alleged stay of complainant at hospital is only to recover the cost of the medicine. The complainant got the insurance policy concealing the fact thathe was suffering from pre-existing ailment within intention to get wrongful benefit. The complainant misinterpreted the Clause of the policy in Para 13 of his complainant. The medical certificate issued by Dr.(Mrs.) Das as annexed by the complainant shows that he was suffering from ankylosing Spondylitis which is chronic degenerative diseasewhich cannot develop within three months and fall in bath-room might have caused aggravated pain. This certificate shows that the complainant was suffering from pre-existing disease at the time of proposal and taking of the policy, and therefore, the complainant cannot get relief as claim lodged with them and hence, their act of repudiating that claim does not amount to deficiency of service on their part and the complaint is liable to be dismissed.
4. We have perused the pleading and evidence of the parties. We have also perused the argument of ld counsel of the complainant and of ld counsels of Opp.Party No.1 & 2. We have found that it is both sides admitted fact that the complainant,  Md.Mahbubur Rahman had insured with Mediclaim Insurance Policy under Gold Plan vide No. 282510261327 with Reliance General Insurance Co.Ltd.Guwahati branch for a sum of Rs.1,00,000/-with EMI of Rs.1,125/- and the policy was effective from 28.3.2008 to midnight on 27.3.2009 for one year and he signed proposal of the said insurance policy through Opp.Party No.3, Mediclaim Assurance India Pvt.Ltd.

5. It is seen from the evidence of the complainant that, he stated from the month  of August,2008, he was suffering from acute pain and stiffness of his lower limbs due to his fall at bothroom for which he took medical treatment on 21.8.2008 and the physician advised him for early hospitalization and to take administer Injection “Enbrel” and first dose under observation to see any side effect and accordingly on 21.8.2008 he visited Down Town Hospital and done three tests namely HRCT Thorax, R/E blood and CRP respectively and ultimately got admitted at International Hospital on 19.12.08 as a  indoor patient as per advised of the treating doctor whether the doctor administered him the first dose of “Enbrel” Injection and kept him observation, but discharged on 20.12.2018 with a advice to administer said Injection twice in a week for six weeks. This fact is not denied by the Opp.Party No.1 & 2 side , but their plea is that for taking Injection of “Enbrel” it is not required to stay in the hospital as indoor patient, but that Injection can be administered in the outdoor as a outdoor patient and that the complainant got admitted in the International Hospital with a intention to get the price of the said Injection wrongfully. In the evidence Opp.Party witness 1, Sri Samrat Baruah states that the Opp.Party No.3 (T.P.A.) has obtained medical opinion whether it is stated that the “Enbrel” Injection administration by the sub-cutaneous route and is a opp.party daycare procedure as per medical opinion and the side effects mentioned are such that it does not required 24 hours monitoring by -6-Doctor and side reactions are seen within a few minutes or hours which can be reversed immediately. He said that Ext.C is the said opinion, but in the cross examination, he states that the company has not brought any witness to produce Ex.C, nor produce evidence of the said expert. Ld counsel of the complainant side submits that the Ext.C cannot accepted as evidence having its author was not examined as witness by the opp.parties. We have found that neither author of Ex.C nor the expert was examined by the opp.parties to prove Ex.C which is alledgely opined as to the fact that for administration of “Enbrel”Injection it is not required to hospitalized the patient, but out door patient are observed for only few hours is required to find out the side effect and if side effect put arise then it can be immediately reversed. So, Ext. C can be accepted as proof of said fact having Ex C is not proved at all. Therefore, we contrained to hold that the version of Opp.Party No.1 & 2 and submission of Opp.Party No.1 that Enbrel Injection  can be administered in a out door as out door patient and only few hours observation is required for observing side effect, but it is required for monitoring for 24 hours or above to fund out the side effect. It is not a opinion of medical expert and therefore that version of the Opp.Party No.1 & 2 cannot be accepted. Opp.Party  No. 1 & 2 side on the other hand admits that the complainant was admitted in International Hospital on 19.12.2008 and he was administered first dose of Enbrel Injection and was kept for observing of side effect and discharged on 20.12.2008 with advised to administered to take said Injection twice in a week for six weeks. This fact is proved by Ex.6 which is admission record International Hospital. From Ext.6, it is seen that the complainant was admitted in the said hospital on 19.12.2008 and from Ex.10 it is seen that he was discharged on 20.12.2008. Thus, it is proved that the complainant had been in International Hospital in hospitalized stage for more than 24 hours and during that time he was administered one dose of Enbrel Injection and kept for observation for side effect . International Hospital is the reputed Hospital of Assam and also a referral hospital of the Opp.Party NO.1 & 2 and therefore, it must be presumed that the Doctor of said   hospital as per requirement hospitalized the complainant for a administering first dose of Enbrel  Injection and kept him in the hospitalized  stay for observing of side effect. Thus, it is crystal clear that as per requirement Down Town Hospital, hospitalized the complainant for more than 24 hours for administering “Enbrel” injection and to observe the side effect which is a requirement of medical norms. Therefore, such hospitalization of the complainant is not unnecessary         nor it can be said that it was done on the request of the complainant. From the medical papers ranging from Ex.4 it is seen that Dr.Mrs.M.P.Das, Asstt. Professor of medicine, Guwahati Medical College Hospital prescribed for administration of one ample of Enbrel Injection twice  a week for eight weeks as a terms for suffering from acute pain and stiffness of his lower mimbs due tohis faal at the bathroom and Dr.Das directed hospitalization of complainant for administration of first dose of Enbrel Injection under observation to see any side effect . This prescription has given by Dr.M.P.Das cannot be said to be unauthentic having she is Asstt.Professor of medicine of G.M.C.H. Therefore, we hold that the complainant started treatment for suffering from pain in lower limbs due to fall at the bathroom ¾ days before 21.8.2008 and he was taking medicines as per said prescription for about eight weeks except Enbrel Injection. The complainant states that due to financial ground he failed to take first dose of Enbrel Injection in due  time, but finally he took the first dose of Enbrel Injection at International Hospital on 19.12.2008. After getting admitted there. Thus, it is crystal clear that he has been under treatment for suffering from pain and stiffness in his lower lims as a result of falling in the bathroom on 21.8.2008 till 20.12.2008 meaning thereby he has taken      treatment for that suffering in International Hospital as a outdoor patient remaining there formore than 24 hours with effect from 19.12.2008. Now, question is that whether , the complainant is entitled to get the expenditure he has done in the said treatment reimbursed from Opp.Party No.1 & 2.    The opp.party side states that at the time of proposal of the insurance policy and taking of the said policy, the complainant was suffering from pre-existing disease / ankylosing Spondylitis and for such suffering he took Enbrel Injection administered on 19.12.2008 in the International Hospital and that as it is pre-existing disease, the complainant is not entitled to get his expenditure in the said treatment in the reimbursement by the Opp.Party No.1 & 2. The complainant in the pleading and evidence states that he suffered from acute pain and stiffness in his lower limbs due to his sudden falling at the bathroom in the month of August 2008, but he was not suffering from any disease like ankylosing Spondylitis. The Opp.Party No.1 in his evidence states that the complainant was suffering from ankylosing Spondylitis and within three months of the policy he required for cashless arrangement, but they rejected his required. In the cross examination O.P.W.1 states that at the time of filing of the proposal of the policy they did not seek any documentary article proof in respect of the pre-existing disease of the complainant. The opp.party side basing on the Ex C the report collected by Opp.Party No.3. We have already hold that Ex.C cannot accepted as evidence having its author was not examined by opp.party side. Thus , it is found that the complainant was suffering pre-existing ailment i.e. ankylosing Spondylitis and he had taken “Enbrel “ Injection at International Hospital on 19.12.2008 for such disease is not established. Thus, it is clear that, at the time of proposal of the concerned insurance policy, the complainant was not suffered from any pre-existing disease. Therefore, we hold that rejecting the claim of the complainant on the ground of suffering from pre-existing diseaseis an illegal order.From Ex.17 (repudiation letter), it is seen that the claim of the complainant was rejected as per Cl.21 of the policy that he had stayed in the hospital without undertaking any treatment and the said hospital he was not any active line of treatment by the article practitioner and on the ground that whatever treatment he had taken in the said hospital can be done on OPD basis. We have already found that the complainant was in active treatment from 21.8.2008 under Doctor Mrs.M.P.Das and on her prescription he took   administration of first dose of Enbrel Injection at International Hospital being hospitalized for more than 24 hours which we have found that for hospitalization for such period was required as per opinion of his treating doctor Doctor Mrs.M.P.Das . Thus, we are of opinion that he was in active treatment for his suffering from pain and stiffness of his lower limbsas aresultof fallingin thebathroomafterrlapseof threemonthsfromthe dateof takingthepolicyand hehadto stayinInternationalHospitalasindoorpatientmorethan 24hours.Therefore, wehold thatcomplainantis entitledto getthe expenditurehehadincurredin takingsaid treatmenti.e.getting“Enbrel”injectionadministered, reimbursedby opp. partyno-1& 2 aspertermsof thepolicytakenfromthem.

6. From the documents filed by the complainant, it isestablished that the complainant had paid Rs. 93,453/- as a charge of treatment (taking“Enbrel” injection ) to International Hospital. Secondly,opp. party no-1& 2 by repudiating the claim of the complainant illegally, harassed him and put him in mental agony.Therefore , we hold tha topp. party no-1and 2 are liable to pay atleast Rs.20,000/-to the complainant as compensation for causing such harassment to him. We also hold that opp. party no-1 and 2 side are also liable to pay the complainant Rs.10,000/-as costof proceeding.

7. Because   of what   has been   discussed    as above, the complainant  against   opp. party   no-1 and 2   is allowed   on contest   and they  are  directed to   pay the   complainant   Rs. 93,453  (Ninety  three  thousand  four  hundred  fifty   three  only) with   interest   at the   rate  of 6%   p.a.   from   the date   of filing   of the    complaint (28-7-2009)   as  reimbursement   of expenditure   of treatment  and   Rs.20,000/-    as   compensation   for causing   harassment    to him  and   Rs.10,000/-   as cost   of proceeding   , to which   they  are  jointly  and severally   liable.  They  are  directed   to make   the payment   within  two  months ,  in    default, other two amounts  shall    also carry   interest  in the  said  rate.

           Given  under   our  hands  and seal  of this  forum  on this   day  2^nd August, 2016.

           Free   copies of judgment   be delivered   to the  parties.

          (Mr U N Deka )                                     (Md S.Hussain)

               Member                                                 President

             DCF,Kamrup                                       DCF,Kamrup