BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   09^th DAY OF FEBRUARY 2021

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (hereinafter called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to clear and reimburse the legitimate claim of Rs.96,078/-, to pay Rs.20,000/- towards mental agony, trauma and hardship, to pay Rs.20,000/- towards legal expenses and also to pay interest @ 18% p.a from the date of repudiation.

2.      The brief facts of complaint is as under:

Complainant submitted that, based on the representations made by OPs, complainant was prevailed upon to take the ‘Group Health Insurance Policy” by paying premiums towards policy bearing No.2825/00101422/011/00.  Complainant experienced severe pain in both knees joint which practically curtailed her day to day living and decided to seek medical investigation by way of X-rays of knees (AP & Lateral View) which revealed presence of Osteoarthritis in both knees.  Based on this, the medical advice was to undergo treatment using Sequentially Programmed Magnetic Field Therapy (SPMF Therapy) for 21 days consecutively at SBF Healthcare and Research Centre of which Wg. Cdr. Dr.V.G Vasishta (Retd) is the C.E.O.  During the treatment the affected joints were treated using SPMF therapy for one hour everyday followed by Physiotherapy for ½ hour continuously for 21 days.  The treatment afforded has resulted in substantial relief from the pain and has increased mobility of the complainant substantially, which enabled the complainant to resume her normal day to day activities.

Complainant further submitted that she has incurred expenses of Rs.90,000/- for the said treatment and the same was paid to SBF Healthcare and Research Centre.  The complainant after having obtained the necessary details of the treatment afforded to her has lodged a claim for payment of Rs.96,078/- based on the treatment summary duly given by the SBF Healthcare and Research Centre dated 28.05.2017.  The same was repudiated by the OPs on 19.07.2017 on the following grounds.

“On perusal of the claim documents, it is observed that the member was treated on outpatient basis, which is out of scope of policy cover.  Hence the claim is inadmissible as per General Exclusion Clause C-16 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any outpatient prescribed or non-prescribed medical supplies including non-prescription drugs and treatments”

Complainant further submitted that, the reason is duly illegal, unwarranted and the legitimate claim of the complainant was rejected only in order not to pay the legitimate amount expended by the complainant for which, the complainant was eminently eligible for reimbursement.  Wg. Cdr. Dr. V.G Vasishta (Retd) who has an MD in Radiology has conducted extensive research in the said field.  Wg. Cdr. Dr.V.G Vasishta (Retd) has successfully treated hundreds of patients from different walks of life including dignitaries such as Her Excellency Mrs. Pratibha Patil, former President of India, Mrs.Renuka Chowdhury, former Hon’ble Minister for Women and Child Development, Air Chief Marshall I.H Latif (Retd), former Chief of the Air Staff, Ambassador to France, former Governor of Maharashtra and former Governor of Uttarkhand who have given laudable remarks commending the treatment afforded to them by Wg. Cdr. Dr. V.G Vasishta (Retd) who is the Chief Executive Officer of SBF Healthcare and Research Centre.  That in the wake of the success of the medical research of Wg. Cdr. Dr.V.G Vasishta (Retd). The State Government of Karnataka has designated him with ‘Suwarna Karnataka Rajyotsava Award’ which speaks for itself.

Complainant further submitted that as per the terms of the policy, there is no whisper that treatment for Osteoarthritis is precluded from seeking reimbursement.  The very clause quoted by the OPs have no application at all to the facts and circumstances of the case.  That the treatment is a result of technological advances which results in the growth of new cartilage.  Furthermore, as enumerated above, the said therapy is the brain child of Wg. Cdr. Dr. V.G Vasishta (Retd) who is a highly qualified professional and has an MD in Radiology.  The same fact has also survived the test of the Hon’ble Consumer Forum and cannot be considered a ground for repudiation.  The Hon’ble State Commission has also expressly held that the said treatment even if taken in as an inpatient, should be allowed.  Moreover, Osteoarthritis is an age related disorder and repudiation of age related disorders after collecting premiums form senior citizens amounts to unfair trade practice.

Complainant further submitted that the similar claims have been allowed by OPs and therefore repudiating the claim of the complainant amounts to discrimination.  The complainant reserves her right to take appropriate legal action against the blatant discrimination before appropriate authorities.  Complainant caused legal notice to OPs dated 13.10.2017 calling upon the OPs to reimburse the amount claimed.  Complainant felt deficiency in service and negligence on the part of OPs.  Hence complainant filed this complaint.

3. In response to the notice issued, OP-1 & 2 appeared through their advocate and filed their version in brief as under:

The OP-1 & 2 submits that the complaint is not maintainable.  The complaint is totally misconceived and based on erroneous assumptions of facts and in law while making the complaint.  The policy issued is subject to various terms, conditions, exceptions, limitations thereof.  The present complaint is false, vexatious, frivolous and is aimed to harass the insurer, which are private General Insurance Company Ltd., who is custodian of public funds. 

OP-1 & 2 further submitted that, the policy of the present type i.e., Group Health Insurance Policy, is not issued to meet the requirements of any Statute.  The premium sought and collected is strictly in accordance with the business rule of the Insurance Company and the instructions issued by IRDA.  There is no compulsion for the Respondents, to issue a policy of present type unlike the policies issued under Motor policies.

OP-1 & 2 further submitted that “Chiltern Clinical Research India Private Limited” had so opted and sought cover under Group Health policy covering its 38 employees and 30 dependents i.e., self + spouse (parents only) vide policy bearing No.2825/00101422/000/00 for the period from 25.08.2016 to 24.08.2017 as per the ‘Chiltern Clinical Research India Private Limited’.  OPs issued ‘Health Policy”, policy covering insured’s 38 employees and 30 dependents as aforesaid.  OPs are not aware as to the complainant was experiencing severe pain in both knees joint which practically curtailed his day to day living and decided to seek medical investigation by way of MRI, x-rays of keens (AP & Lateral View) etc., which revealed presence of Osteoarthritis in both knees.  Based on this problems and medical advise the complainant was to undergo treatment using Sequentially Programmed Magnetic Field Therapy (SPMF Therapy) for 21 days consecutively at SBF Healthcare and Research Centre of which Wg. Cdr Dr.V.G Vasishta (Retd) is the C.E.O are all false and baseless.  As per the documents/medical records submitted, it is true that the complainant had undergone treatment at SBF Healthcare and Research Centre for a period of 21 days and the policy of insurance so issued was inforce and that however denies that complainant is entitled for medical reimbursement, as the same is not liable to paid as per the terms and conditions of policy.

OP-1 & 2 further submitted that the expenses incurred to an extent of Rs.90,000/- are denied as false and baseless.  However it is true that the complainant had so lodged a claim towards reimbursement of the medical expenses for payment of Rs.96,078/-.  Complainant had preferred the claim for reimbursement of expenses along with relevant documents/medical records.  It is true that the OPs have repudiated the claim of the complainant vide letter dated 19.07.2017 on the following ground, which reads here as under:

“On perusal of the claim documents, it is observed that the member was treated on outpatient basis, which is out of scope of policy cover.  Hence the claim is inadmissible as per General Exclusion Clause C-16 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any outpatient prescribed or non-prescribed medical supplies including non-prescription drugs and treatments”

 OP-1 & 2 further submitted that Unproven/Experimental treatment, unproven procedure or treatment, experimental or alternative medicine and related treatment including acupuncture, magnetic and such other therapies etc., are so also not payable, in view of the fact that the complainant had so undergone an unproven procedure i.e., Magnetic therapy.  As well the policy schedule does indicate at Sl. No.13 as “OPD” not covered.

OP-1 & 2 further submitted that after completion of the treatment, complainant has not made a claim for medical reimbursement for a sum of Rs.96,078/-.  In fact after receipt of the claim form, alongwith relevant medical bills had to infact process and rejected the claim of the complainant as stated above.

OP-1 & 2 further submitted that the treatment so undertaken by the complainant had undergone the Sequentially Programmed Magnetic Field (SPMF) therapeutic system, as per the brochure.  The details are as under:

“The Sequentially Programmed Magnetic Field (SPMF) therapeutic system is a computer controlled device which generates sequential pulsed magnetic fields, by employing a plurality of Magnetic Field Generators (MFG’s).  The magnetic field can be precisely controlled and applied onto the cells and or tissues that require to be treated.  The MFG’s are fired in a programmed sequence to facilitate the homogeneity of the magnetic field and to produce magnetic fields of a certain frequency range and intensity that result in better patient outcomes”

As per the treatment procedure for a over a period extended period of 21 days, is a day care procedure and as this policy does not covers OPD treatment.  The present claim not fulfilling the conditions as extracted above, hence the claim was repudiated under the said clauses of the policy conditions.

OP-1 & 2 further submitted that as per clause 11, relating to hospitalization is extracted hereunder:

“Hospitalization: Hospitalization means the Insured Person’s admission for a continuous period of not less than 24 hours into a hospital, which means an institution in India which:

a)

b)

c)

d)

          That as per the clause hospitalization, OPs on receipt of the entire claim records and on scrutiny of the same, OPs processed the claim of the complainant and had repudiated the same.  The said treatment undergone by the complainant i.e., SPMF is a new technology and unproven and not scientific proven technology.  Complainant admits that the complainant was suffering from osteoarthritis.  Thus considering the fact that Sequentially Programmed Magnetic Field (SPMF) therapeutic system, is an alternative mode of treatment for Osteoarthritis against knee replacement surgery all expenses related to claim were denied.  As well, the said Sequentially Programmed Magnetic Field (SPMF) therapeutic system, could be done on OPD, wherein the policy does not cover any expenses related to the treatment taken under OPD basis, if converted to hospitalization.

          OP-1 and 2 further submitted that the complaint is totally false and based on assumptions.  A document of insurance is a product of consensus ad idem.  Further it is a document of utmost confidence and hence doctrine of uberrima fides.  The insured is guilty of misrepresentation and non-disclosure and hence the contract is vitiated in view of the law declaration of law in MKJ Corporation Vs United India Insurance Co. Ltd., by the Hon’ble Supreme Court.  Both the insurer and the insured have a duty to each other in disclosing all aspects of the subject matter of insurance.  The trust and duty to represent the truth is mutual and co-existence.  Based on clause extracted above and as well relying on the documents so submitted, the OPs left with no other alternative had to repudiate the claim of the complainant, as per the policy exclusion clause, as per the policy was and is justified.

OP-1 & 2 further submitted that in as much as the dignitaries so relied on by the complainant does not overcome the policy terms and conditions, since so framed by the IRDA Regulations whereas the admissibility of above claim has to be examined under the mediclaim policy terms and conditions.  As per policy, condition, exclusion, as per the definitions & interpretations, thereto, which are since extracted above.  The claim of the complainant does not gives any scope for settlement of amount and as such has been rightly repudiated.  The treatment so undertaken by the complainant, in respect of the ailment i.e., ‘pain in both knees’ was infact persistent for over a period of few years, as per the complainants own documents i.e., treatment summary of Mrs.Grandhi A.M Tayaru.  Besides it is pertinent to note that his treatment is in experimental stages with no guarantee of cure after the course.  There is no scientific validation or is considered a recognized treatment as per the IMC or USFDA or any other certifying authority.  There is no inpatient hospitalization or surgical intervention in this procedure.  The treatment center under which this treatment is being done do not satisfy the requirement of a hospital, as specified in the policy clauses.  There is no any deficiency of service or negligence on the part of OP-1 & 2.  Rest of the allegations made by the complainant is denied by OP-1 & 2.  Hence OP-1 & 2 prayed for dismissal of the complaint awarding exemplary costs.

4. In the course of enquiry into the complaint, GPA holder of the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Both parties have submitted their written arguments and certain documents.  We have heard the arguments of complainant side and the arguments of OPs taken as heard.  We have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Affirmative in part

Point No.2:  As per the order below

REASONS

7. Point No.1:- On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that, the complainant obtained Group Health Insurance Policy bearing No.2825/00101422/011/00 with the OPs.  It is also admitted fact that the complainant was suffering from pain in her knees joint and which reveals Osteoarthritis and hence she was treated with SPMF Therapy for 21 days continuously for half an hour every day and was treated by Wg. Cdr. Dr.V.G Vasishta (Retd.)  The contention of the complainant is that, after taking the said treatment the complainant submitted a claim form along with documents before the OPs.  OPs repudiated the claim of the complainant on 19.07.2017.  On perusal of the repudiation letter dated 19.07.2017 which reads here as under:

On scrutiny of the claims documents submitted, we observe that the claim is not admissible for the following reasons:

“On perusal of the claim documents, it is observed that the member was treated on outpatient basis, which is out of scope of policy cover.  Hence the claim is inadmissible as per General Exclusion Clause C-16 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any outpatient prescribed or non-prescribed medical supplies including non-prescription drugs and treatments”

8. On perusal of the terms and conditions of C General Exclusion Clause 16 which reads here as under:

“Outpatient prescribed or non-prescribed medical supplies including elastic stockings, bandages, gauze, syringes, diabetic test strips, and similar products; non-prescription drugs and treatments”.

9. Admittedly the complainant was aged about 59 years and she having Osteoarthritis problem and she advised to take Sequentially Programmed Magnetic Field Therapy (SPMF) continuously for half an hour daily for 21 days.  As per the doctor advice the complainant took the treatment and she has got a relief regarding the said problem.  OPs have repudiated the claim only on the ground that she has only taken treatment as an outpatient.

10. In a similar issue held by Hon’ble Karnataka State Commission in view of the fact that, OP has not disputed the treatment taken by the wife of the complainant for her ailment as an outpatient as per the advice of the senior doctor and a huge amount spent for the treatment purposes.  The circular if any issued by the Head Office of the appellant on the strength of the terms and conditions of the policy, amounts to denial of justice.  Therefore the Hon’ble State Commission held that if the treatment has taken by the patient as an outpatient without admitting as an inpatient, is entitled to claim reimbursement.  The main purpose of getting the medi-claim policy is to reimbursement.  Therefore the Osteoarthritis is bound to occur in the elderly people cannot be denied.

11. Further the similar issue was taken up for consideration by Hon’ble National Commission in R.P.No.2362/14 dated 23.02.2015 in the case of New India Assurance Co., Ltd., & Anr., v. Ishu Motwani was pleased to consider a similar matter wherein the Hon’ble National Commission also held that one hour treatment continuously for 21 days would be entitled for reimbursement.  Further the above said judgment para.7 of the order which reads here as under:

Brief perusal of the Policy shows that it is a Goodhealth Policy Certificate issued on 1.9.2012 to the insured who is 61 years of age.  Issuing a Policy to a person of 61 years of age and then stating that ‘age related diseases’ are excluded amounts to unfair trade practice.  When SPMF Therapy is not specifically excluded, the act of the Opposite Parties in repudiating the claim on the ground that the treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service.  

12. In the light of the above said decision referred and the complainant has underwent SPMF therapy from Wg. Cdr. Dr.V.G Vasishta, who is an MD in Radiology who has conducted the extensive research in the said field and several patients who were taken a treatment under SPMF therapy has got a relief and the same has been published regarding the said therapy in several National and International journals and he has got a award of ‘SUWARNA KARNATAKA RAJYOTSAVA AWARD’ by Government of Karnataka.  Hence on the above facts and circumstances the complainant is entitled for reimbursement of the claim.  The complainant has spent Rs.90,000/- towards treatment.  Therefore, we are of the opinion that the complainant is entitled to a total sum of Rs.90,000/- only.  Since OPs have repudiated the claim of untenable ground, they are liable to pay interest on the said sum of Rs.90,000/- @ 9% p.a from the date of repudiation till the date of realization.  Looking to the facts and circumstances of the case, we feel it appropriate to direct the OPs to pay litigation cost of Rs.10,000/- to the complainant.  Accordingly, we answer the point no.1 affirmative in part.

          13. Point No.2: In the result, we passed the following:          

  O R D E R

1) The complaint filed by the complainant is allowed in part.

2) OP-1 & 2 jointly and severally directed to reimburse a sum of Rs.90,000/- (Ninety Thousand only) to the complainant together with interest at the rate of 9% p.a from the date of repudiation till the date of realization.

3) Further OP-1 & 2 are directed to pay litigation cost of Rs.10,000/- to the complainant.

4) This order is to be complied by the OP-1 & 2 within 45 days from the date of receipt of this order.

5) Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 09^th day of February 2021)

Witnesses examined on behalf of the complainant by way of affidavit:

Chinnari Rao Gupta, who being the GPA holder of Grandhi A.M Tayaru.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs by way of affidavit:

Sri.Ananda M, who being Authorized signatory of OPs Insurance Company Ltd.,

Documents produced on behalf of Opposite Party:

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