West Bengal

Paschim Midnapore

CC/121/2011

Smt. Meera Agarwal - Complainant(s)

Versus

Sr. Manager, the New India Assurance Co. Ltd - Opp.Party(s)

29 Jan 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.51/2013 & 121/2011                                    Date of disposal: 29/01/2014                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER : 

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. S. Das, Advocate.

    For the Defendant/O.P.S.                           : Mr. M. K. Chowdhury, Advocate.

          

 

1. Smt. Meera Agarwal, W/o Sri Mohanlal Agarwal;
2. Mohanlal Agarwal, S/o Late Ramlal Agarwal residing at Holding No.91, Ward No.15 of Kharagpur Municipality, malancha Road, P.O. Kharagpur, P.S. Kharagpur(T), Dist Paschim Medinipur………Complainant.

                                                              Vs.

1. Sr. Manager, the New India Assurance Co. Ltd., Kharagpur Branch, Inda, P.O. Inda, P.S. Kharagpur(T), Dist. Paschim Medinipur
2. The Manager, Medi Assist India Pvt. Ltd., Ganga Apartment, Plot 2A, 2^nd Floor, 86, Golaghata Road,  Kolkata. 700048 .………………Ops.             

 

                  This is the case of the complainant, Smt. Meera Agarwal and Mohanlal  Agarwal, in short, is that they used to maintain Mediclaim Policy in their names  till 14/8/10.  The petitioner Smt.Meera Agarwal suffered Gall-bladder stones and thereby she was advised for treatment.  Accordingly, she was medically treated in ILS Hospital at Jeewansatya at Salt-lake City during the period from 07/05/2009 to 13/05/2009.  Operation took place on 08/05/09 and thereafter, she was discharged on 13/05/09.  On account of medical treatment, an amount of 1,93,494/- (One lakh ninety three thousand four hundred ninety four) only was defrayed.  Stating the case, the petitioner claimed before the Op New India Assurance Company Ltd. having its local office at Inda, Kharagpur, Paschim Medinipur.  But a sum of 60,800/- (Sixty thousand eight hundred) only  was paid to the petitioner.  On being aggrieved by and dissatisfied with the said payment, the petitioner refunded the amount to the Op with a request for reconsideration of their claim.  In this connection, the petitioner on earlier occasion moved before this Forum.  Vide C.C.No.121/2011 wherein an

Contd…………….P/2

 

- ( 2 ) -

order dated 17/5/12 was passed by the Forum giving direction to the Op for reconsideration within two months.  But there was no such effective steps on the part of the Op.  As a result, the petitioner again came before us  with their same grievance by virtue of liberty given by this Forum in connection with the previous case as stated in this behalf.

              The Op Insurance Company contested the case by filing written objection claiming that the case is not maintainable for want of territorial jurisdiction of this Forum.  Very categorically the Op denied the treatment of Sleeve Resected portion of stomach due to heavy body weight.  The claim form of 1,90,000/- ( One lakh Ninety thousand) only and upon due scrutiny it was revealed before  the Op that the patient was admitted for  Haptoscopic  Sleeve Gastrectomy as a procedural steps for weight loss which relates to the treatment for Obesity.  Accordingly, claim on account of Laparoscopic Sleeve Gastorectomy was not considered by the Op.  Thus, they have assessed a sum of `.60.800/- (Sixty thousand eight hundred) only.  The reason towards such assessment has been assigned by the Op that the sleeve Gastorectomy had a little relevance to the Cholecystectomy which should not be considered in relation to the gall-bladder stone.  The Sleeve Gastorectomy was unrelated and the same, in fact, is for the Procedural Treatment of Obesity.  Thus, considering everything, the Op has finally accorded a sum of Rs.60800/- (Sixty thousand eight hundred) only for the purpose of satisfaction to the claim of the petitioners.  So, the present case claiming for 1,93,494/- (One lakh ninety three thousand four hundred ninety four) only, should not be allowed.

Upon the case of both parties the following issues are very much relevant for discussion in order to arrive at a correct decision of this case.

     Issues:

1. Whether the case is maintainable for want of jurisdiction?
2. Whether the sum of 60,800/- (Sixty thousand eight hundred) only as assessed by the Op is correct, bonafide and just for the purpose of mediclaim of the petitioners?
3. If the petitioners are entitled to get relief as prayed for?

Decision with reasons:

Issue nos.1 to 3

               Ld. Advocate for the complainant made his argument that it is a fit case for granting the claim raised by the petitioner on account of medical treatment cost incurred by them which is covered  by a valid Mediclaim  Policy with the OP Insurance Company  having their branch office at Kharagpur within the jurisdiction of this Forum.  Admittedly, the Op has granted 60,800/- (Sixty thousand eight hundred) only without considering the Surgery Charges and Doctors’ fees.

                                                                                                                      Contd…………….P/3

 

 

 

- ( 3 ) -

 

  Ld. Advocate, in this connection further submitted that the complainants have no

 objection if the cost of total

 

Surgery Charges and Doctors’ fees alongwith the said sum of 60,800/- (Sixty thousand eight hundred) only already assessed & granted on account of pharmacy and medicine charges.

              Ld. Advocate appearing for the Op-Insurance Company has challenged with a very specific question that the company is always ready to pay the treatment cost in relation to the treatment of Gall-Bladder Stones.  No excess medical expenditure which is not in relation to the actual disease will be given to the claimant.  The cost of particular treatment of Sleeve Gastorectomy cannot be considered along with the claim of the complainant.  An assessment report being its no.1483595 has been prepared and approved by the company which goes to show the specific reason justifying the sum of  60,800/- (Sixty thousand eight hundred) only  for the purpose of reimbursement in favour of the claimants.  So, according to the submission of the Ld. Advocate, there should not be any further amount in excess of the said assessed sum of 60,800/- (Sixty thousand eight hundred) only.

                 We have considered the case of both parties as a whole and it appears that the patient was medically treated for Morbid Obesity with Symptomatic Gallstone and the operation in the process of Laparoscopic Sleeve Gastrectomy with Cholecystectomy by a Medical Team of doctors Om Tantia, Dr. S Khanna, Dr. Prakash & Dr. Nirmal. The Discharge Certificate issued on 13.05.09  by the hospital goes to show  the medical findings and Diagnosis  In this connection, the assessment report made by the Op company does not expose any  explanation as to how and  in which ground the findings in relation to the medical treatment and its cost has been discarded in making assessment of the  sum 60,800/- (Sixty thousand eight hundred) only in place of total medical cost as per medical bill amounting to 1,93,494/- (One lakh ninety three thousand four hundred ninety four) only as claimed by the complainants.  It is very much surprising to note that while assessment of the claim of 1,99,000/- (One lakh ninety thousand) only there made Tabulators remarks, as in their report, which does not bear any justification or a valid reason in reduction of huge amount of medical expenditure claimed.

                 Under the fact and circumstances of the case, it appears that the final diagnosis in respect of the disease is that the patient was suffering from Obesity with Gall-stone.  The patient was admitted with pain in her Upper Abdomen.  There was no significant medical history.  The patient has under-gone Laparoscopic Sleeve Gastrectomy with Cholecystectomy under the medical group of doctors namely Dr. Om Tantia, Dr. S. Khanna, Dr. Prakash and Dr. Nirmal.  The claim for  1,93,494/- (One lakh ninety three thousand four hundred ninety four) only in support of money

Contd…………….P/4

 

- ( 4 ) -

 

receipt being its no.IRP/10046/2009-10 dated 13/05/2009 issued by the hospital which is well within the valid period of Mediclaim Policy.  The bill includes the charges for Cabin, ITU bed, Bilup…..,Laparoscopic Sleeve charges, Investigation charges, Pharmacy and Medicine charges, and Doctors’ fees and others total amounting  the said amount of  1,93,494/- (One lakh ninety three thousand four hundred ninety four) only.  In this connection, the Op

approved `.60,800/- (Sixty thousand eight hundred) only on account of pharmacy and medicine charges.  Other amounts on account of investigation charges, hospital charges, surgery charges and

consultation charges were discarded mere with reason that excess charges towards Laparoscopic sleeve Gastrectomy: has no relation with Gallstone but against the Obesity.  Op failed to produce any medical clarification justifying their ground. While argument, on this point, it has been highlighted from the end of the Op that Sleeve Gastrectomy is not a subject to be included in the treatment of Obesity with Gall-stone.  According to the Ld. Advocate, since the patient suffers from Gall-stone, the Op does not find any reasonable ground to bear and pay the huge amount of claim on the plea of treatment of Sleeve Gastrectomy.   Of course, the company, according to him will pay the treatment cost of 60,800/- (Sixty thousand eight hundred) only on account of pharmacy and medicine charges.  We have also considered the suggestion of the Ld. Advocate appearing for the Op Insurance Company.  But it is not clear in his submission that the amount in the category of pharmacy and medicine charges as shown in the money receipt issued by the hospital, differs from the amounts on the same category of charges as has already been assessed by the Op, since the medical procedure, for the purpose of treating the patient of Obesity with Gallstone detected as per Discharge Certificate, to be adopted i.e. Sleeve Gastrectomy.  This is nothing but a Designed procedure to be performed in such a case the patient suffering from.   Discharge Certificate wherein it is crystal clear that the operation with the process of Sleeve Gastrectomy was adopted in the present case of Obesity with Gall-stone. In this subject, It is very much relevant to have a look on the Wikipedia, the Encyclopedia on Fastrectomy which gives a brief note as follows :-

   Sleeve Gastrectomy (also called gastric sleeve) is usually performed on extremely obese patiests, with a body mass index of 40 or more, where the risk of performing a gastric bypass or duodenal switch procedure may be too large.  A two-stage procedure is performed: the first is a sleeve gastrectomy, and the second is a conversion into a gastric bypass or duodenal switch, Patients usually lose a large quantity of their excess weight after the first sleeve gastrectomy procedure alone, but if weight loss ceases the second step is performed.

 

  Contd…………….P/5

 

              - ( 5 ) -          

 

  For patients that are obese but not extremely obese, sleeve gastrectomy alone is a suitable operation with minimum risks.  The sleeve gastrectomy currency is acceptable weight loss surgeryt option for obese patients as a single procedure.  Most surgeons prefer to use a bougie between 32-60 Fr with the procedure and the ideal approximate remaining size of the stomach after the procedure is about 15 ml .Laparoscopic sleeve is an innovative new tool in the battle against the obesity. (References: Karmali, Shazeer(2010) Pitombo, Cid (2008) on Obesity Surgery  Principles & Practice).

                  In view of the fact and circumstances as discussed hereinabove, we are in the opinion hold that the Sleeve Gastrectomy  is a suitable process for operation with minimum risk for the patient suffering from Obesity with Galls Stone as the case hereof. So, we are to close and sum up the case in the way that if the amount of 60,800/- (Sixty thousand eight hundred) only as has been assessed and agreed by the Op-Insurance Company is taken into consideration towards a subject to extend and  add with the amount of doctors fees, at least, as in the money receipt in respect of  the claim, neither party would be prejudiced.                 

                 The Op-Insurance Company runs their business having their Banch office in Inda, Kharagpur, Medinipur which is well within the territorial jurisdiction of this Forum.  Thus, the issues of territorial jurisdiction is in favour of the complainant as per Consumer Protection Act the amount of  60,800/- (Sixty thousand eight hundred) only as assessed by the Op is not justified rather incoherent.  So, other issues are disposed of in favour of the complainants.

                  In view of the decision above, the complainants should get award of 1,13,800/- (One lakh thirteen thousand eight hundred) only with interest  @ 10% p.a. from the date of filing of the petition of complaint in relation to the C.C. No. 121-2011 i.e. 18/11/11  till payment.  There should be an order of litigation cost of 5,000/- (Five thousand) only in favour of the complainants.   

                 Hence, it is,

                  Ordered,

                                that the case be and the same is allowed on contest without cost.

The complainant do get an award of 1,13,800/- (One lakh thirteen thousand eight hundred) only with interest @ 10% p.a. w.e.f the date of filing of 121/11 i.e. 18/11/11 payable by the Op till realization of the complainant shall get litigation costs of 5,000/- (Five thousand).

The Judgement and order shall govern the previously filed Case no.121/2011.

Dic. & Corrected by me

              

         President                                             Member                                                President

                                                                                                                              District Forum

                                                                                                                          Paschim Medinipur.