The case of the complainant in brief is that complainant met with Dr. Raja Dhar for some breathing problem i.e. problem during exhalation on 11.7.2013 at Fortis Hospital Ltd., Kolkata and after physical examination Dr. Dhar advised for A Sleep Study Test-CPAP Titration and asked the complainant to talk with the technicians of the Fortis Hospital regarding the said test and the concerned technician booked an appointment for 18.7.2013 for the said test and told that he will call the complainant on 17.7.2013 and give the complainant instructions regarding the said test. The complainant had no idea about the said test and out of curiosity the complainant wrote a mail to the doctor on 12.7.2013 and the said doctor replied on that very day that the complainant have to take overnight admission i.e. 1 day admission for the Sleep Study. Therefore, it is clear and evident from the mail of the said doctor that the Sleep study Test CPAP Titration cannot be done on OPD basis and it requires overnight hospitalization i.e. one day in the hospital. Accordingly, the complainant intimated the TPA i.e. Family Health Plan (TPA) Ltd. and received the acknowledgment of receipt of intimation on 13.7.2013.
As per schedule the complainant got himself admitted at Fortis Hospital Ltd., Kolkata on 18.7.2013 at about 10 P.M. for Sleep Study Test CPAP Titration and deposited Rs.9,490/- only towards the charge for the said test and ultimately got himself released from the said hospital on 19.7.2013 at about 4 A.M. The complainant is a patient of Severe Obstructive Sleep Apnea and Dr. Dhar on next visit to him advised for Auto CAPAP Machine and the prescription of the said attached herewith. Accordingly the complainant purchased one Philips Resipronic Remstar-Auto-C-PAP Machine along with one Philips Resipronic M-Comfort Gel Mask on 14.8.2013 from Hospital Supply company Ltd., Kolkata for Rs.53,000/-.
On 12.9.2013 the complainant filled up the hospitalization and domiciliary hospitalization benefit policy claim form and posted the same on 16.9.2013. the TPA repudiated the said claim but the complainant did not receive any written confirmation from the said TPA and during the telephonic conversation with Mr.Saikat Karmakar, an official of the said TPA, the complainant came to know about such repudiation on the ground of hospitalization was for less than 24 hours and subsequent to that the complainant registered his grievance being No.GRI130110248 with the National Insurance Co. Ltd. But his claim was repudiated under the clause 4.10 and 2.6 of standard policy condition.
The complainant preferred an appeal before the Hon’ble Insurance Ombudsman, Kolkata. The said Ombudsman was pleased to award the claim amount in favour of the complainant towards the full and final settlement of the claim which the complainant was refused to accept and remained silent for the time being and the copy of the said award was communicated to the petitioner by a registered post dated 1.1.2016.
On 25.1.2016 the petitioner received a letter from the Sr. Divisional Manager, Division-XX, National Insurance Co. Ltd. and in the said letter he requested the petitioner to submit the original documents to enable them to honor the award. The petitioner also received two letter dated 8.2.2016 and 18.3.2016 respectively from the said Divisional Manager. But petitioner remain silent again. That the conduct of the O.P. incurred a loss of Rs.65,655/- and defamed the complainant in his society and the complainant became incompetent towards his family and relative. Finding no other alternative the complainant filed this case before this forum for relief with prayer to direct the O.P. to pay claim amount, to pay litigation cost of Rs.15,000/- and to pay Rs.10,000/- as compensation for mental pain and agony.
O.Ps. contested the case by filing written version denying inter-alia all the material allegation as leveled against them. These O.Ps. stated that Mr. Subhendu Ghosh along with his family was insured under the policy of insurance bearing No.101800/48/13/8500000314 from 17.5.2013 to 16.5.2014. As per doctors advice Mr. Ghosh had undergone for sleep study test-CPAP on 18.7.2013 at Fortis and all supporting and all supporting bill from OPD. The O.P. Insurance Company on receipt of the claim by TPA M/s.FHPL they observed and opined that the subject claim was only for investigation purpose and moreover the duration of stay was less than 24 hrs. It was also observed by them that treatment parted to Mr. Subhendu Ghosh was absolutely on OPD basis and hence they have recommended the subject claim for repudiation. After taken into consideration this O.P. took the points into consideration while repudiating the claim;
i. The treatment imparted to Mr. Ghosh was on OPD basis which is clearly excluded under the policy as per Foot Note of clause No.2.6.
ii. Subject claim is for Sleep Study-CPAP which was excluded as per clause No.4.16 under the head exclusion.
iii. The subject claim also attracts Exclusion Clause No.4.10 of the policy which clearly states company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred primarily for evaluation/diagnostic purpose not followed by active treatment during hospitalization. Herein the instant case the claim is for expenses incurred for Sleep Study which is merely an investigation/evaluation done on OPD basis and the question of hospitalization as in-patient does not takes place. Therefore, this O.P. Insurance Company fully agree with the view of TPA and they have no other option but repudiate the said claim.
These O.Ps. further stated that after repudiation of claim petitioner went to Insurance Ombudsman, Kolkata wherein an award was passed to settle the claim amount of the Mr. Ghosh excluding cost of CPAP and GEL Mask. This O.P. Insurance Company vide its letter dated 25.01.2016 requested the complainant to submit the original documents to enable them to honor the award but without knowing further this complainant filed this case before this Forum. This O.P. Insurance Company had acted accordingly within the ambit of the norms and schedule of the policy and thus caused no deficiency in service as alleged.
The complainant filed evidence on affidavit. The complainant also filed photocopies of prescription of Dr. Raja Dhar along with outpatient bill. Xerox copy of communication with Dr. Dhar, receipt of intimation acknowledge by the TPA, Xerox copy of bill Sleep Study Test, Xerox copy of Polysomnogram report, Xerox copy of the bill of Auto-C-PAP with M Comfort Gel Mask, Xerox copy of claim form, Xerox copy of letter of repudiation, Xerox copy of award passed by the Insurance Ombudsman, Xerox copy of complainant made before the Insurance Ombudsman.
Argument advanced by the parties heard in full. They also filed the written notes of argument which are taken into consideration for passing final order.
Points for consideration
- Whether complainant is a consumer ?
- Whether there is deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASON
All the points are taken up together for convenience and brevity of discussion of this case
It is admitted position that complainant was admitted and was treated for conducting test Sleep Study. The complainant has adduced evidence as PW-1. He was admitted at Fortis Hospital on 18.7.2013 at 10 PM for Sleep Study Test. He deposited Rs.9490/- towards the charges of the said test. He was released on 19.7.2013 at about 4 AM. The Annexure-5 was issued by the hospital authority showing Severe Obstructive Sleep Apnea by Dr. Dhar. Later on he was treated and advised by the doctor on 26.7.2013 for Auto CPAP Machine and prescription of the said doctor has been filed (Anexure-1). The complainant purchased the PHILIPS RESIPRONIC REMSTAR-Auto-C-PAP machine along with the one PHILIPS RESIPRONIC M COMFORT GEL MASK on 14.8.2013 from Hospital Supply Company Ltd. Kolkata for Rs.53,000/- as shown by him (Annexure-6). It has also stated that later on he filed application for reimbursement by Annexure-7. Later on complainant was informed regarding non-entitlement of the amount. The National Insurance Co. Ltd. repudiated the claim No.423248 under clause 4.23 of standard policy condition read with 4.10 and 2.6 of standard policy condition by Annexure-9. The complainant again knocked the door of Ombudsman but the same was repudiated by Annexure-10 & 11. Later on the complainant also waited for suitable reply from the Sr. Divisional Manager, Division-20, National Insurance Co. Ltd. In this way the complaint made some correspondences as shown by the letter by Annexsure-12, 13 & 14. So, from the above it is crystal clear that the without recourse to interpretation of the above points referred herein before the cause shown by the annexures find no place in the Insurance Act which is nothing but a contract between the insurer and insured on payment of sum consideration money. The O.P. has repudiated the claim as per the O.P’s statement and evidence only upon the clause-2.6, 4.16 and 4.10.
The complainant has filed written notes of argument. The O.P. has also filed written notes of argument. It is admitted that complainant was admitted in the hospital for conducting test of sleep apnea for which the doctor prescribed remedial measure of using the machine in the respective annexure i.e. 1 & 6.
In this respect the complainant has filed one decision of appeal No.700/2002 of State Commission, Delhi dated 22.3.2007 wherein the rule of interpretation has been explained and by Para-10 & 11 the Hon’ble State Commission it is observed that “It is universal rule of interpretation that the contract or the statue should be read as a whole and not in isolation and every clause of the contract and every section of statute should be provided meaning which should be in consonance with the aim and object of the contract and the statute. It should serve its purpose and promote its object. Applying this rule we do not find any escape from the conclusion that the C-PAP system prescribed by the doctor was such instrument which was essential for if not curing the disease as some disease are not curable but controlling it to such an extent that without which the life of the insured is always at risk. The disease in question is such a disease, which kills a person in sleep and if C-PAP system is not considered as an essential part of the treatment of the disease then we do know what else shall be considered”.
Foregoing reasons persuades us to hold that the respondent was entitled for re-imbursement of the expenses incurred by him towards the purchase of this equipment.
In this case in our hand that the complainant purchased the machine which is life saving device and the rule cited by the O.Ps., on which O.Ps. have relied upon cannot be taken absolute which deprives a man a right to live. Right to live is granted fundamental rights under the constitution of India. Any rule cannot deviate from such principles of fundamental of Indian constitution under Article No.21 of the Indian Constitution. The prescription of doctor and purchase receipt of the complainant Annexure 1 & 6 shows that complainant purchased the machine Auto-C-PAP for his life as life saving instrument of taking breath during sleep because the diagnosis is sleep apnea. So, after deliberation over the dispute before us we are of the opinion that the complainant was within the valid period of his medical insurance and he is entitled to get total expenses including the expenses of hospital fees and the price of the Auto-C-PAP Machines. So, the complainant is entitled to get the total cost of Rs.64,240/- (Rs.750/-, bill dated 11.7.13, Rs.600/-, bill dated 26.7.13, Rs.9890/-, bill dated 18.7.13 and Rs.53,000/-, bill dated 14.8.13). Accordingly, the case succeeds. Hence, it is
Ordained
that the case be and the same is allowed on contest with cost against the O.Ps.
The O.P. No.1 to 3 are directed to pay Rs.64,240/- as claimed amount to the complainant. The O.P. No.1 to 3 are also directed to pay Rs.10,000/- towards compensation for mental pain and agony and to pay Rs. 10,000/- towards litigation cost to the complainant. The O.P. No.1 to 3 are further directed to comply the abovementioned order within 45 days from this date of order, failing which the complainant is at liberty to execute the same through this Forum.
Let the copies of this order be supplied to the parties free of cost.
