BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.45/2013

Dated this the 16^th day of March 2016

M. Krishnamurthy, son of late Manickam

No.25, First Cross Street, Thiruveni Nagar

V. Manavelly, Arumparthapuram (Post)

Puducherry – 605 110.

                                                ….     Complainant

Vs.

1. Star Health and Allied Insurance Company Ltd.,

    Registered and Corporate Office, Chennai, rep. by its

    Authorised signatory, No.1, New Tank Street

    Valluvar Kottam High Road, Nungambakkam,

     Chennai – 600 034.

2. Star Health and Alliwed Insurance Company Ltd.,

    Regional Office, Cuddalore, rep. by its

    Authorised signatory, No.41/1, G.A.B. Complex,

    Opp. To Daily Thanthi, Imperial Road,

    Cuddalore – 607 002.

                                                ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L., 

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT            :  Thiru S. Vimal, Advocate

FOR THE OPPOSITE PARTIES     :  Thiru B. Mohandass, Advocate

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties either jointly or severally,

1. To refund a sum of Rs.5,592/- (being the principal sum of rs.5,168/- + interest at 24% per annum from 7.6.2012 till 10.10.2012 i.e. Rs.424/-) and subsequent interest at 24% per annum from 11.10.2012 on Rs.5,168/- till complete payment and discharge;
2. To pay a sum of Rs.50,000/- with interest at 24% per annum from the date of complaint till complete discharge towards compensation for the physical hardship and mental agony caused to complainant due to opposite parties unfair trade practice and deficiency in service;
3. To pay a sum of Rs.3000/- to litigation cost and expenditure.

2.  The case of the complainant is as follows:

          The complainant is a retired Sub Inspector of Police in Puducherry.  On 25.03.2009 complainant's son by name K. Soumakiyan proposed for his Medical Insurance with the opposite party on payment of a suym of Rs.5,846/-.  The said proposal being accepted the complainant was insured with the first opposite party through the second opposite party under Medi Classic Individual Policy and the same was periodically renewed on payment of further premiums to Opposite parties agent at Puducherry as and when due since 25.03.2009 and was last renewed on 29.03.2009 and remain valid till 29.03.2013.  Since the complainant developed defective vision in the year 2012, he approached Aravind Eye Hospital and Postgraduate Institute of Ophthalmology in Pondicherry, a Hospital listed and recommended by the Opposite parties for its diagnosis and treatment.  On 06.06.2012 the complainant was diagnosed and treated by Surgery for Pterygium with Conjunctival Transplantation in Right Eye by the said Hospital.  He was admitted as an inpatient and treated / operated on 6.6.2012 and discharge on 7.6.2012.  The details of said treatment was intimated by the complainant to the opposite party as required by them vide Claim Intimation No. 0033390.  The complainant incurred a minimum expenses of Rs.5,168.75 towards his treatment in the said Hospital.  Since the expenses are reimbursable, the Hospital issued a Certificate and Clarification to provide reimbursement.  On 9.7.2012 the complainant sent to the opposite parties a filled-in Claim Form enclosing all the mandatory documents sought by them, along with an enclosure letter seeking reimbursement of Rs.5,168.76.   The first opposite party repudiated his claim by letter dated 14.08.2012 stating that "their medical team has observed from the discharge summary issued by the Hospital, they find that the insured / complainant was admitted on 6.6.2012 and discharged on 07.09.2012.  That said treatment could have been taken as a day care procedure and therefore expressed their inability to admit complainant's claim under the policy and thereby repudiated his claim".  No other documents were enclosed by the opposite party.   The opposite parties' repudiation of complainant's claim without any just reason despite his eligibility as per the terms of the policy and for the treatment given at the hospital recommended by them, amounts to unfair and restrictive trade practice and deficiency in service to the complainant which caused severe physical hardship, mental agony and monetary loss to the complainant.   Hence, this complaint.

3.       The following are the averments narrated in the reply version filed by the first opposite party and adopted by second opposite party. 

          The opposite parties admitted the policy taken by the complainant's son and its periodical renewal and the treatment taken by the complainant and the expenses incurred by him.  The opposite parties stated that the certificate confines itself to the effect that "Medicines and Medical Supplies prescribed and purchased from medical shop by the patients are essential for the surgery and bills are certified by doctor and included".  The claim was scrutinized by the Opposite parties and rejected the same for the reason that "Pterygium is a fibro vascular growth of the conjunctiva over the ocular surface extending onto the cornea.  The treatment for the same can be made as a day care procedure and inpatient treatment is not necessary.  As per policy condition, "the company undertakes that if during the period stated in the Schedule if the insured person shall contact any disease or suffer from any illness and if such disease shall require the injured person upon the advice of the duly Qualified Medical Practitioner or of duly qualified surgeon to incur hospitalization expenses for medical surgical treatment at any hospital as an inpatient the company will pay to the insured person the amount of such expenses as are reasonably & necessarily incurred.." For the proper appreciation of the condition of the contract in relation to the subject matter of the complaint, two things are emphasized by the opposite parties. Firstly, the nature of the disease is such that it requires the injured person for medical treatment as an inpatient. Secondly, such requirement should be upon the advice of the duly qualified medical practitioner. It is humbly submitted that there should be an element of need for inpatient treatment for the treatment of the particular illness & as per law it is not sufficient that the injured person merely desires to undergo the inpatient treatment. Viewed from this angle the OPs are perfectly justified in repudiating the claim of the complainant.  There is no deficiency in service, the claim for refund of the medical expenses incurred by the complainant is mere claim for money which can’t be entertained.  For obtaining the relief of compensation the consumer should prove loss or injury due to the negligence of the opposite party as per section 14 (1) (d) of the Consumer Protection Act, 1986. It may kindly be noted that the petitioner has not even alleged negligence on the part of the OPs for claiming compensation. The fact remains that the complainant can't by any stretch of imagination find fault with the OPs in discharging their duties in a negligent manner. Under such circumstances the claim for compensation to the tune of RS.50, 000/- for physical hardship & mental agony alleging unfair trade practice and deficiency in service can't be accepted. 

  Hence, prayed for dismissal of the complaint.

4.       Points for determination are:

          1. Whether the complainant is a Consumer?

          2. Whether any deficiency in service attributed by the Opposite Parties?

          3. To what relief, the complainant is entitled for?

5. On the side of the complainant, Exs.C1 to C5 were marked.  On the side of the Opposite Parties, one Ezhilarasu, Branch Manager of OP company, Cuddalore Branch was examined as RW1 and Ex.R1 was marked.  One Dr. M. Ashok Kumar was examined as RW2 and through him, Ex.R2 was marked.  

6.       Point No.1:

          The Opposite Parties are the Insurance Company engaged in the business of getting medi-claim policies from the Individuals.  Accordingly, the complainant's son took a Medi Classic Health Insurance Policy (Individual) in favour of complainant vide policy No. P/111214/01/2012/001848 dated 25.03.2009 for the period from 29.03.2012 to midnight of 28.03.2013 on pay of Rs.5,268/- and periodically renewed it for a sum assured at Rs.2.00 lakhs as per Ex.C1.  Hence, the complainant is a Consumer as per Consumer Protection Act.

7.       Point No.2:

          The complainant developed some problems on his right side eye and underwent Pterygium with Conjunctival Transplantation in the Aravind Eye Hospital who is one among the listed hospitals of Opposite Parties Company as per Ex.C2.  The same was duly intimated to the Opposite Parties Company by the complainant's son immediately.  For the above said treatment, the complainant was admitted in the hospital on 06.06.2012 and discharged on 07.06.2012 and had spent a sum of Rs.5,168.76 as per Ex.C3.  On 9.7.2012 the complainant sent letter Ex.C4 to the first Opposite Party along with Claim Form and all original bills.  However, the first Opposite Party sent letter repudiating the claim of the complainant stated that "Our medical team has observed from the discharge summary issued by the above hospital that the insured person was admitted on 06.06.2012 and discharged on 07.06.2012.  This treatment could have been taken as a day care procedure".  Aggrieved by the same, the complainant preferred this complaint. 

          8. On the other hand, the Opposite parties stated by way of reply versions that the complaint is not maintainable either in law or on facts.  The certificate issued by hospital authority confines itself to the effect that "Medicines and medical supplies prescribed and purchased from medical shops by the patients are essential for the surgery and bills are certified by doctor and included".  Further stated that the claim form and other documents were perused by the opposite parties in the light of terms and conditions of the relevant policy and repudiated the same since the treatment for "Pterygium Excision with Clog with Glue in the Right Eye is a fibro vascular growth of the conjunctiva over the ocular surface extending onto the cornea and inpatient treatment is not necessary.  It is further alleged by the opposite parties that the claim for refund of the medical expenses is a mere claim for money.  For getting compensation, the consumer should prove loss or injury caused due to the negligence of the opposite party and also there is no unfair trade practice.

          9.   On the perusal of the complaint and the reply version and the exhibits marked by the complainants,  it is evident from the Exs.C1 and R1, the complainant is an insured with the Opposite Parties company for medical claim policy for a sum assured Rs.2.00 lakhs and the policy was in existence till the midnight of 28.03.2013.  As per Ex.C3 the complainant was admitted in the Aravind Eye Hospital on 06.06.2012 and underwent treatment for Pterygium with Contuctival Transplantation in Right Eye and discharged on 07.06.2012.  The complainant submitted his claim form before the Opposite Parties Company for reimbursement, but his claim was repudiated by the Opposite Parties stating that the treatment for the above disease is a day care procedure and it would not require inpatient treatment. 

           10. The learned counsel for the opposite parties submitted that from the condition of the contract in relation to the subject matter of the complaint, two things are emphasized by them.  Firstly, the nature of the disease is  required the injured person for medical treatment as an inpatient, secondly, such requirement should be upon the advise of the duly qualified medical practitioner.  There should be an element of need for inpatient treatment for the treatment of the particular illness and as per law it is not sufficient that the injured person merely desires to undergo the inpatient treatment.  To fortify their contentions, the learned counsel for the opposite parties relied upon a judgment report in CDJ 2001 SC 1051 [KEMPAIAH vs LINGAIAH AND OTHERS] wherein, it was held by the Hon'ble Apex Court that

"the word "require" used in clause (h) of  sub-section (1) of Section21 of the Act implies something more than a mere wish or impulse or desire on the part of the landlord.  Although the element of need is present in both the cases, the real distinction between "desire" and "require" lies in the insistence of the need.  There is an element of "must have" in the case of "require"  which is not present in the case of mere "desire". 

11. The learned counsel also relied upon a judgment reported in CDJ 1951 Cal HC 085 [NARESH vs KANAI LAL ROY CHOWDHURY] wherein, it is held that

        "The real distinction between "desire" and "require" lies in the insistence of that need.  There is an elemtn of "must have" in the case of "require" which is not present in the case of mere "desire".  It is from this standpoint that the question of requirement has to be determined.  The word "bona fide" or "in good faith" has to be interpreted in the light of the definition of "in good faith".

It is a well settled principle that every contract is made in "good faith".  Each party should discharge their duties as per the terms and conditions of the contract.  In the present case, the complainant was admitted in the Opposite Parties list mentioned hospital for treatment in his eye.  As per the advise of the doctor at hospital, he had undergone the eye operation as in-patient.  To refute the above contentions, the opposite parties examined one Dr. M. Ashok Kumar, Specialist in Ophthalmology who in his chief examination  has stated that          "On going through the above medical records, I submit my opinion to the effect that the entire treatment for the illness of "Pterygium" is performed as daycare or outpatient procedure and can be performed under topical anesthesia or infiltrative anesthesia depending on surgeon's competence."  

          12. Further, during his cross examination he has stated that

          " I have not seen the complainant.   But, I dispute the admission procedure for the treatment since it is only a day care procedure.  It is  necessary to examine the patient / complainant before saying on the course of treatment given to him."

From the above, it is clear that the RW2 given opinion on perusal of documents only.  He himself admitted that he has to examine the patient about the course of treatment given to him.  Further, it is quite natural that if any person undergo treatment / operation in a sensitive parts of the body, he would take much care to avoid any unwanted things happens later.  Hence, as per the advise of the physician, the treated Doctor only, the complainant took treatment as inpatient.   Further, nobody would desire to go for any require treatment until and otherwise, he suffers for such disease.  So, the authorities submitted by the learned Counsel for the opposite parties cannot be taken into consideration.

          13. Further, the method and the reasonable course of treatment adopted by the treated Doctor cannot be challenged without examining the patient. The Doctor who clinically examined a patient only knows the nature of disease, health condition of the patient and what type of treatment to be given and the procedure to be followed.  The treated Doctor should only decide whether the disease would be treated with a day care or in patient.    The RW2 also in his cross-examination has stated that "It is necessary to examine the patient / complainant before saying about the treatment given to him".  Further, the opposite parties did not examine the Doctor who gave treatment to the complainant.   Hence, this Forum is unable to accept the opinion given by the RW2 in Ex.R2.

          13. Moreover,  on perusal of Ex.C1 the Policy, it is mentioned that "As per medical report, he had diabetes mellitus and hypertension.  Hence all the claims arising out of diabetes mellitus and hypertension are excluded."  From the above, it is clear that except the treatment for diabetic and hypertension, the complainant is entitled for reimbursement of medical expenses for eye treatment and also he is entitled for compensation for such wrong repudiation.  This point is answered accordingly.

          13.  Point No.3:

          In view of the discussions in Point No. 2, the Opposite Parties are held liable for the reimbursement of medical expenses and compensation.    The complaint is hereby allowed and the Opposite Parties are directed to

1. refund a sum of Rs.5,169/- towards the medical expenses paid by the complainant.
2. To pay the complainant a compensation of Rs.20,000/- towards deficiency of service and for the loss and injuries suffered by the complainants;
3. To pay a sum of R.s.5000/- towards the cost of this proceedings.

The orders pronounced above, should be complied by the Opposite Parties within two months from the date of receipt of this order.

Dated this the 16^th  day of March 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  NIL

OPPOSITE PARTY'S WITNESS: 

RW1           12.06.2014           N. Ezhilarasu

RW2           30.12.2014           Dr. M. Ashok Kumar

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   29.03.2012           Medi Classic Health Insurance Police issued by

second Opposite Party

Ex.R2                   21.11.2014           Opinion given by Consultant Ophthalmologist

LIST OF MATERIAL OBJECTS: NIL

( A. ASOKAN )

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER