Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 25/2019
Sh. Amresh Kumar, Advocate, son of Shri S.N. Prasad Sinha,
R/o RZD-60, Dabri Extension, East Gali No.9, New Delhi …Complainant
Versus
OP1- M/s Royal Sundram General Insurance Company Ltd.,
through Branch Manager Office at 1505-1506, 15th Floor,
Ambadeep Building, 14, K.G. Marg, Connaught Place,
New Delhi-110001.
OP2- M/s Medicare TPA Service (I) Pvt. Ltd. through its Manager
/General Manager,noffice at 6B, Bishop Lefroy Road,
Kolkata-700020. ...Opposite Parties
Date of filing: 29.01.2019
Date of Order: 13.06.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to dispute of parties) – The complainant filed the complaint with allegation of deficiency of services and of unfair trade practice for want of settlement of valid medical claim and other allied expenses of other expenses pertaining to treatment of hospitalization from 19.04.2016 to 06.05.2016 and other post discharge expenses upto 03.07.2016. The OP1 had opposed the claim that there is no deficiency of services and as a matter of fact the complainant was required to submit the necessary documents to decide the admissibility of claim, therefore, it is a premature complaint. OP2/TPA failed to appear, file reply and thus it was proceeded ex-parte.
1.2. The complainant seeks an amount of Rs.2,10,404 ( i.e. Rs. 1,60,000/- medical expenses during hospitalization and an amount of Rs. 50,504/- during onward treatment being constituted 60 days period), apart from damages and costs because of deficiency of services and breach of contract. The complaint mentions not only about the current claim for period 19.04.2016 to 06.05.2016 & for medicines upto but also of his previous treatment of tenure from 02.01.2016 to 11.01.2016.
2.1. (Case of complainant) – The complainant is an Advocate by profession and he is customer/consumer of OP1 as he got issued insurance policy no. HSW00038000100 for sum insured of Rs. 3,00,000/- (policy is at page no. 31 of the paper-book) for period 12.10.2015 to 11.10.2016 . He suffered miserable health problem in January 2016, he was hospitalized in Kalra Hospital S.R.C.N.C. Pvt. Ltd. New Delhi, where he remained under care and consultancy of Dr. RN Kalra for his treatment from 02.01.2016 to 11.01.2016 due to hepatic/ liver disorder. The cost of treatment was Rs. 77,000/- which was to be paid to the hospital and request was made to OPs vide payer ID no. ALM0260465E in response to final bill no. 15-16CR53326. He was discharged from the hospital but he was constrained to undergo treatment under the care of Sir Ganga Ram Kolmet Hospital, Pusa Road, New Delhi.
2.2. The complainant was constraint to undergo treatment at Sir Ganga Ram Kolmet Hospital, Pusa Road, New Delhi, there was cost of around Rs. 1,60,000/- and above. The hospital authority had made request to OP for estimated cost (for the period from 19.04.2016 to 23.04.2016) for about Rs. 80,000/- to be paid to the said hospital, however, the same was rejected by OP2 vide rejection letter dated 21.04.2016 (at page no. 47).
2.3. The complainant remained under treatment for liver disorder/ hepatic for a long period and his liver was got transplanted due to which he has been suffering from post operative care to. His treatment is still continuing, however, being professional Advocate he was constrained to his professional and moral responsibility to take care of his clients interest too, that is why he was not personally contacting the OPs.
2.4. OP1 violated the spirit of Consumer Protect Act, it violated the terms and conditions of policy by rejecting the request of Sir Ganga Ram Komlet Hospital and even the reason assigned by OP2 is without cogent basis since on earlier occasion, the OPs had already made payment of requested amount, after satisfying bona fide of claim.
The complainant has incurred Rs. 1,60,000/- towards the cost of treatment, apart from medical expenses of Rs.50,504/- consecutive 60 days period and he is entitled for total amount of Rs. 2,10,504/-. Moreover, he also got served legal notice dated 13.02.2018 by registered post A/D, speed post and courier (page no. 49-54) but no result. The complainant suffered financial losses, service loss and reputation, damages, harassment, mental agony and pain and the OPs are liable to compensate for their negligent acts and deficiency of services.
2.5. The complaint is accompanied with the schedule of insurance policy, final bill of previous treatment of Rs. 77,000/- for period 02.01.2016 to 11.01.2016 (page no. 31-36, which is stated to have been settled and paid), bills of treatment from 19.04.2016 to 06,05.2016 (page no. 38 to 44), discharge summary dated 06.05.2016 (page no. 45-46), rejection letter dated 21.04.2016 (page no. 47), cash memo/bills from 27.04.2016 to 03.07.2016 (page no. 56-79) for medicine etc, legal notice dated 13.02.2018 with postal receipts and courier (page no. 49-54)
3.1 (Case of OP1)- OP1 does not dispute the issue of Family Health Floater Policy and the validity period of policy w.e.f. 12.10.2015 but there are terms and conditions of policy (Annexure-R1/1). As per discharge summary of 06.05.2016 the complainant was diagnosed with chronic liver disease (CLD). The CLD was diagnosed within seven months of taking policy on 12.10.2015 and pre-existing disease could not be ruled out and that is why by repudiation letter dated 03.05.2016 the cashless facility was denied to the complainant (Annexure-R1/2 being referred to the reply is of 03.05.2018 and not of 03.05.2016, no letter of 03.05.2016 was filed by OP1). The denial of cashless facility cannot be deemed to be denial of claim, as complainant had option to prefer reimbursement of claim, for which complainant was required to submit necessary document on claim admissibility namely discharge summary, original hospital final bill, indoor case paper from hospital, treatment records of jaundice diagnosed in January month and doctor prescription for injection Albumin. The complainant was asked necessary document by letter dated 18.06.2018 (Annexure-R1/3 in reference to his claim no.GC00003223). The complainant has filed as a frivolous complaint without providing necessary documents to the OP1 to decide the claim. There is no deficiency of service or unfair trade practices. The claim lodged by complainant was kept pending for want of necessary documents, it was neither admitted nor rejected by the OP1.
The OP1 requests for dismissal of complaint as denial of cashless facility does not amount to rejection of claim as well as claim made still pending for want of furnishing the record.
3.2. (Plea of OP2/TPA)- OP2 failed to appear despite service of notice on complaint and for want of appearance it was proceeded ex-parte vide order dated 27.03.2019.
4. (Replication of complainant) – The complainant filed rejoinder, he denies with strong wordings all allegations of the written statement with request that the OP1 is trying to take benefits of their own wrongs and faults, they are just justify their wrong stand without any basis and in order to avoid their duties since the complainant had fulfilled requirement of all documents. There was no reasons to disbelieve the documents furnished and whatever is being asked is unreasonable hue and cry of OP1. The reply is not tenable under the law since it is false, vague and unjustified plea; denial of genuineness of documents produced by complaint is nothing but the harassing attitude of OPs, for which OPs need to be penalized. The complainant was not suffering from any pre-existing disease, complainant filed discharge summary dated 11.01.2015 of his previous treatment [to show that he was never previous case of CLD, he was diagnosed jaundice/ lever disorder during his treatment between 02.01.2016 to 11.01.2016].
5.1. (evidence) - Complainant led evidence by filing his affidavit, it is based on his pleadings and documents. OP1 led its evidence by filing affidavit of Shri V. Hari Shankar, Senior Legal Executive and this affidavit is replica of written statement with documents.
6. (Final hearing)- The complainant filed his written arguments. OP1 also filed its written arguments followed by its additional written arguments, which are to fortify the arguments with case law. The parties were given opportunities to make oral submissions, the complainant himself (being an Advocate) made the submissions and on the other side, Sh. Garud M.V. Advocate for OP1 made the oral submissions.
Their submissions of both the parties are not reproduced here, the same will be referred appropriately.
7.1 (Findings) : The rival contentions of both sides are considered, assessed and analyzed keeping in view the evidence on record, statutory provisions of law & Regulations and case law presented.
7.2.1. The OP1 contends that since lodged claim was under process, required documents were not filed by complainant to process the claim, therefore, for want of repudiation of claim, the complaint is pre-mature, it could be only after decision on claim lodged. There was no deficiency of service and consequently the Complaint does not lie under the Consumer Protection Act 1986.
Whereas on the other side, complainant’s case is when valid genuine claim was lodged, however, it was not considered. When initially cashless claim was requested it was also repudiated. Thus, complaint sent legal notice, even then claim was not honoured & settled, nor reply to legal notice sent. No letter of OP1 was received/served upon the complainant, otherwise all documents were provided to OP. It is clear case of deficiency in service and complaint lies under the Act 1986.
Since, the dispute features of case of the parties give rise to a consumer dispute, it is to be adjudicated, therefore, complaint is maintainable under the Act 1986. Whether or not complaint is a pre-mature, it is also be determined.
7.2.2. It is an admitted case of parties that privity of contract exists between the complainant/insured on one side and OP1/insurer on the other side. Since, repudiation or rejection letter was issued by OP2, it also needs to introduce the status, role and extent of functions of a TPA.
So far status of TPA/OP2, its constitution, its functions are concerned, the same are subject matter of insurance policy and the provisions of IRDA (Third Party Administrators - Health Services) Regulations 2016. Its relevant regulations are:-
"Regulation 3. Health Services by TPA:
(1) A TPA may render the following services to an insurer under an agreement in connection with health insurance business:
a. servicing of claims under health insurance policies by way of pre-authorization of cashless treatment of settlement of claims other than cashless claims or both, as per the underlying terms and conditions of the respective policy and within the framework of the guidelines issued by the insurers for settlement of claims.
b. servicing of claims for Hospitalization cover, if any, under Personal Accident Policy and domestic travel policy.
c. Facilitating carrying out of pre-insurance medical examinations in connection with underwriting of health insurance policies:
Provided that a TPA can extend this service for life insurance policies also.
d. Health services matters of foreign travel policies and health policies issued by Indian insurers covering medical treatment or hospitalization outside India.
e. Servicing of health services matters of foreign travel policies issued by foreign insurers for policyholders who are travelling to India:
Provided that such services shall be restricted to the health services required to be attended to during the course of the visit or the stay of the policyholders in India.
f. Servicing of non-insurance healthcare schemes as mentioned in Regulation 22 (30 of these Regulations.
g. Any other services as may be mentioned by the Authority.
(2) While performing the services as indicated at Regulation 3 (1) of these regulations, a TPA shall not-
a. Directly make payment in respect of claims
b. Reject or repudiate any of the claims directly
c. Handle or service claims other than hospitalization cover under a personal accident policy
d. Procure or solicit insurance business directly or indirectly
e. Offer any service directly to the policyholder or insured or to any other persons unless such service is in accordance with the terms and conditions of the policy contract and the agreement entered into in terms of these regulations.
(3) A TPA can provide health services to more than one insurer. Similarly an insurer may engage more than one TPA for providing health services to its policyholders or claimants".
xxx
"Regulation - 21. General guidelines to TPA in respect of services in relation to Health Insurance Policies:
(1) The TPA shall have in place the necessary infrastructure to extend the health services as required to the policyholders at all times.
(2) The TPA and the insurer shall be responsible for the proper and prompt service to the policyholder at all times.
(3) Scrutiny and handling of claims:
a. TPA may admit claims, authorize cashless facility and recommend to the insurer for the payment of the claim which shall be in line with the detailed claims guidelines issued to TPA by the insurers for the particular product:
Provided that the detailed guidelines as given by the insurer to the TPA for claims assessments and admissions shall be within the terms and conditions of the policy contract, the capacity requirements envisaged and the internal control norms put in place.
b. TPAs shall endeavour to collect all documents pertaining to the claims reported in electronic mode for seamless processing and for recommending to the insurer for payment or rejection as the case may be.
c. A TPA shall adopt the following procedure with respect to settlement of the claims:
i. In case of admissible claim, full or partial: In the communication addressed to the policyholder or claimant, the TPA shall state clearly the following:
a) “Your claim bearing No<Claim No> against policy issued by <name of the insurer> has been settled for Rs <Amit Paid> against the Amount Claimed for Rs <Claimed Amount> towards Medical Expenses incurred for treatment of <name of the Ailment> at <Name and City of the Hospital> for the period from <Date of Admission> to <Date of Discharge>”:
b) The granular details of the payments made, amounts disallowed and the reasons there for.
c) The details of (i) Grievance Redressal Procedure in place with the insurer (ii) Contact details of concerned Grievance Redressal Office and officer (iii) Procedure to be followed for approaching Insurance Ombudsman in case the policyholder or claimant is not satisfied with the resolution provided by the insurer (iv) Contact details of office of Insurance Ombudsman:
Provided that the above details shall be mandatorily included in the communication to the policyholder or claimant in every case where the TPA has disallowed any part of the claim.
ii. In case of inadmissibility of the entire claim
a) The TPA on its own shall not reject or repudiate the claim;
b) The decision and the communication with respect to rejection or repudiation of claim shall be sent only by the concerned insurer directly to the Policy holder or the claimant as the case may be".
It is abundantly clear from these relevant Regulations about the status, locus functions of TPA as well as its role/services in processing the health insurance policies, apart from it has locus standi to process to the medical claim process under legal sanctions. Moreover, the TPA on its own shall not reject or repudiate the claim and decision and the communication with respect to rejection or repudiation of claim shall be sent only by the concerned insurer directly to the Policy holder. With this preliminary findings, now other issues are taken.
7.3. The OP1 has reservation that after taking the policy, the complainant was diagnosed of CLD within seven months from the date of policy and he had not declared it vis-à-vis the complainant was asked to furnish the documentary record by letter dated 18.6.2018, which he failed, that is why the complaint is premature. The OP1 relies upon Krishna Rao Ganpatrao Pharande vs National Insurance Co. Ltd. (First Appeal No. 255/2008 dod 30.03.2009), wherein during the pending of claim with the insurance company, the complaint was filed in the court and it was treated a premature complaint. Further reliance is placed on Naresh Kumar Chadda vs United India Insurance Co. Ltd (First Appeal no. 483/2009 dod 08.09.2010 by Hon’ble H.P. State Consumer Disputes Redressal Commission) that cause of action would arise when the claim is either repudiated or settled and not otherwise, consequently, the complaint was premature.
On the other side, the complainant contends that he was not suffering from CLD and there was no question of concealment. The complainant was earlier treated from 02.01.2016 to 11.01.2016 and it was first time that he was diagnosed of that health issue.
Secondly, the complainant was sent rejection letter dated 21.04.2016 (of his current claim) which is in violation of policy condition as well as the complainant was earlier reimbursed the bills, after all satisfaction. The complainant never received any letter dated 18.06.2018 (referred as Annexure-RW1/3) vis-à-vis complainant had sent legal notice, which was served and no reply/ advises were given to him. Lastly, the heading of OP’s letter dated 03.05.2018 is "repudiation letter" (Annexure-R1/2). His claim was not considered arbitrarily. In Rulda Singh Vs United India Insurance Co Ltd. CC no.401/2016 dod 19.09.2017 by Hon'ble State Commission, Punjab Chandigarh, it was observed in para 25 that the TPAs job is to serve and process the claim, accepting and rejecting the claim at their own by TPAs is illegal, arbitrary, null and void and is not sustainable in the eyes of law.
By analyzing and assessing the rival plea, the following conclusions are drawn:-
(i) Letter dated 21.04.2016 (at page no. 47 of complainant’s paper-book) is titled "Rejection letter of Patient Amresh Kumar', when cashless facility was denied. OP’s letter dated 03.05.2018 (Annexure-R1/2, at page no. 16 of its paper-book) is also "pre-authorisation Repudiation letter". The substance of contents of both letters are of denial of cashless facility;
(ii) But it has been noted that despite the request of cashless facility was declined, the contents of both the letter are different in some paragraphs, it should not be so, however, both the letters were issued by OP2/TPA. The complainant was sent the letter dated 21.04.2016 but OP1 filed letter dated 03.05.018 with its written statement, but mentioning the date of letter of 03.05.2016 in the written statement as well as in the affidavit of evidence;
(iii) The heading of aforementioned two letters is " rejection letter and repudiation letter" and the same was issued by OP2/TPA, whereas TPA has no authority under the law to issue rejection letter or repudiation letter, as it could be only by the Insurer (detailed rules have already been produced in para no. 8.3 above).
In the contents of letter, there is no expression or mentioned of 'repudiation or rejection', in the operating part of letter, then why it is so expressed in the heading that too in bold letters? The expression in bold communicates that author is emphasizing especially thereon and as appearing from the heading of subject letter, the OP2 has emphasized too.
It is well known and also a fair practice that "subject/heading to letter" is "gist of contents of letter'; since both reconcile with each other and they never remain juxtaposition to each other. Whereas, in the situation in hand 'the heading of letter 'repudiation or rejection' is contrary to the contents of letters. It is not bona-fide but a bad practice on the part of OPs, which requires to be stopped so that ordinary persons of recipient of such letter are not misguided and misconceived.
(iv) The complainant has filed his medical record of discharge summary dated 11.01.2015 in respect of his previous treatment from 02.01.2016 to 11.01.2016 and his bill of Rs. 77,000/- was also reimbursed by the OP1. In the discharge summary of 11.01.2016 issued by Kalra Hospital S.R.C.N.C., there is mentioning of " nothing significant" in the past history column. Further, in the course of hospital, it is mentioned that "he was investigated and found to be suffering from infective Hepatitis". As such there is no observation of pre-existing disease vis a vis OP1 has not made any reply of facts to previous settlement of bills. The treatment from 02.01.2016 to 11.01.2016 is within currency of same insurance policy period from 12.10.2015 to 11.10.2016, which during the subsequent treatment, in continuous of previous, was being given. Thus, OP1 objections of pre-existing disease does not survive because no finding of CLD were given in the discharge summary of 11.01.2016.
(v) Further, the complainant has filed subsequent discharge summary dated 06.05.2016 pertaining to his hospitalization from 19.04.2016 to 06.05.2016 and also bills of medicine/ treatment upto 03.07.2016, which are within 60 days from date of discharge. The complainant claims that he had furnished all such record to OP1 but his claim was not reimbursed; whereas OP1 has counterplea that certain documents were called by letter dated 18.06.2018, which complainant failed to furnished.
The record is assessed in this regard. The complainant has proved not only his discharge summary but also other proof of bills of hospitalization as well as medication and treatment. Complainant has also proved his legal notice dated 13.02.2018 with postal and courier receipt of service on the OP1 and OP2. On the other side, OP1’s letter is of 18.06.2018, it is after more than 4 months of service of legal notice and this letter dated 18.6.2018 Annexure-R1/3 does not depict any office reference number or mode of dispatch (like speed post or registered A/d and it is not an email letter), the OP1 could not prove service of such letter on complainant seeking documents from him. Moreover, date of letter is of 18.06.2018, against claim of April - July 2016.
Moreover, when the OPs were served with legal notice dated 13.02.2018, if there was any inquiry or deficiency, it could have been responded by the OP1, however, no reply or advises were made. In Kalu Ram vs Sita Ram (1980 RLR Note 44) it was held that when plaintiff before filing the suit, makes serious assertions in notice to the defendant, then defendant must not remain silent by ignoring to reply. If he does so, then adverse inference may be raised against him. It applies to situation in hand, that OP1 failed to reply the legal notice but came with counter-plea of asking paper from complainant by letter, which has not been proved by OP1.
(vi) From the aforementioned discussions, what emerged is the OP2 is writing letter that complainant's claim is rejected, who is not authorized to do so. Moreover, the complainant had lodged claim with the OP1, followed by legal notice dated 13.02.2018 in respect of claim of hospitalization and subsequent treatment within 60 days period from the date of discharge (i.e. claim for period 19.04.2016 to 03.07.2016) the OP1 had not responded that legal notice that the claim of complainant is pending nor any document was asked in response to legal notice vis-à-vis OP1 could not prove its letter dated 18.06.2018 was actually written to the complainant or served upon him. The complaint had valid reasons to file the complaint.
Under these circumstances of this case, the complaint cannot be construed a premature complaint and the features and circumstances of this case are distinguishable from the facts of cases of Naresh Kumar Chadda (supra) and the of Krishna Rao Ganpathrao Pharande (supra).
7.4. In view of the conclusions drawn hereinabove, it is crystal clear that complainant has proved his case of hospitalization from 19.04.2016 to 06.05.2016 and medical expenses during that period paid were a sum of Rs. 1,57,000/- for which bills/invoice have been proved. He has also proved the post discharge expenses of Rs. 50,504/-, the bills have also been proved to this effect. Therefore, he is held entitled for release of medical bills of hospitalization charges which comes to Rs. 2,07,504/-.
7.5. The complainant also claims damages and cost, which have not been quantified in the complaint. It was submitted during the submissions that the same has been left to the discretion of Commission to award reasonable amount of damages and costs.
Although, the complainant was required to specify the amount so that it may be assessed with his status and circumstances of the case, since complainant will be in best position to suggest it fairly, secondly it has also been mentioned by him in the complaint that every time he was not in a position to pursue the matter personally with the authority as he was pre-occupied with his duties towards the client in performing as a lawyer and to assist the courts in the matter, being nature of professional ethics & duties. Therefore, under these circumstances the damages are assessed of Rs. 20,000/- for inconvenience, delay and other trauma faced by him directly or indirectly. Since the complaint has been prosecuting by complainant personally being an Advocate, therefore, no order as to costs.
7.6.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1 to pay amount of Rs. 2,07,504/-, being medical expenses; apart from damages/compensation of Rs.20,000/- to complainant. No order as to cost.
OP1 is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the OP1 will be liable to pay interest at the rate of 7% per annum on amount of Rs 2,07,504/- from the date of filing of complaint till its realization.
7.6.2. No order against OP2/TPA with regard to reimbursement of bills and compensation.
7.6.3. However, the OPs are also expected, and also directed, to comply by following a fair practice of communications as observed in paragraph 7.3 (iii) above. OP1 shall also direct its TPA/OP2 for appropriate compliances under intimation to this Commission within 30 days of receipt of this Order.
8. Announced on this 13th June 2023 [ज्येष्ठ 23, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
