BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 524 of 2015
Date of Institution: 24.8.2015
Date of Decision: 04.07.2016
Sh. Prem Kumar son of Sh. Harphool Chand, working as Assistant in Liffe Insurance Corporation of India, posted at its Branch Office at City Centre, Amritsar resident of VPO Rajoke, Tehsil Patti, District Tarn Taran
Complainant
Versus
The New India Assurance Co.Ltd., Divisional Office at 80, Court Road, Amritsar through its Senior Divisional Manager/Person Over all Incharge
Opposite Party
Complaint under section 11 and 12 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Neeraj Brahmi, Advocate
For Opposite Party : Sh.P.N.Khanna, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Prem Kumar has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the impugned medi-claim group Insurance Policy of employees (including their family) of Life Insurance Corporation of India was obtained from opposite party as this insurance was arranged by the LIC for their employees from the opposite party. The complainant is an employee of LIC of India and is working as Assistant in Life Insurance Corporation of India posted at its branch office Amritsar I/143 at City Centre, Amritsar. The complainant and his family members were also covered in the impugned medi-claim group insurance policy covering medi-claim risk to the tune of Rs. 6 lacs and in respect thereof premium to the tune of Rs. 140.36/- per month was being deducted regularly from the salary of the complainant against code No. 6269 as premium of the said insurance. However in respect of the insurance policy, no separate policy document or any terms and conditions or any other documents containing terms and conditions of the insurance contract were supplied to the complainant . The present complaint relates to the amount spent towards the medical treatment of the son of the complainant namely Sh.Amritpal Singh. As the present controversy relates to The New India Assurance Co.Ltd having its Divisional Office at 80, Court Road, Amritsar and as such services of opposite party may be effected through its Sr. Divisional Manager/Person Over All Incharge. During the currency of the impugned insurance, son of the complainant developed medical problem in his nose/nasal obstruction and due to breathing problem, the complainant took his son to Mrs. Khushbir Kalra’s Memorial Hospital, 13, Ajit Nagar, Amritsar wherein son of the complainant was admitted for his treatment on 23.8.2014 and septoturbinoplasty was done and he was discharged on 26.8.2014. During the course of treatment, the complainant spent an amount of Rs.29,062/- towards hospitalization charges and medical expenses etc. The complainant submitted a claim of the said amount of Rs. 29,062/- to opposite party alongwith all requisite original documents for settlement and payment under the said insurance policy. But, however, claim was not settled by the opposite party. It is worthy to mention that complainant visited the office of opposite party so many times and even requests were made by him telephonically, but the opposite party did not pay any heed to the genuine requests of the complainant. Thereafter opposite party demand X-ray/Scan of Amritpal Singh from the complainant and upon this the complainant approached the doctor of Mrs. Khushbir Kalra’s Memorial Hospital and requested for x-ray/scan as sought by the opposite party. The doctor apprised the complainant that DNS with turbinate hypertrophy is a clinical diagnosis and in this x-ray and CT scan are not required. As such the same were not done in this case. In this respect a certificate was also issued by the doctor which is self explanatory and the same was also supplied to the opposite party. The complainant requested the Insurance company to settle the claim but to no avail. It is important to mention that a legal notice dated 16.3.2015 was duly served upon the opposite party at its head office through registered cover . But only a vague reply to the said legal notice was given by the opposite party on 4.4.2015. The complainant has sought for following reliefs vide instant complaint:-
(i) Opposite party be directed to pay a sum of Rs. 29062/- to the complainant i.e. the amount spent by the complainant towards medical treatment of his son alongwith interest @ 12% p.a.
(ii) Compensation of Rs. 50000/- be also awarded to the complainant.
(iii) Opposite party be also directed to pay litigation expenses to the tune of Rs. 10000/-.
Hence, this complaint.
2. Upon notice, opposite party appeared and filed written reply controverting the allegations made in the complaint taking certain preliminary objections therein inter alia that there is no direct insurance between the complainant and the opposite party as according to the allegations made in the complaint, it has been alleged that the complainant is employee of LIC of India and is covered under the medi-claim group insurance policy obtained by LIC of India from the opposite party, but the complainant has not impleaded LIC as party to the present case. Therefore, present complaint is bad for non joinder of necessary parties and cause of action; that even otherwise the complainant has no locus standi to file the present complaint because the complaint preferred in the present claim pertained to Amritpal Singh, who has been alleged major son of the complainant and suffered the alleged problem as mentioned in the present complaint. Hence, complaint should have been filed by said Amritpal Singh himself and not by Prem Kumar. Hence, the present complaint is liable to be dismissed on this ground alone; that the complaint filed against the opposite party is otherwise premature and without any cause of action. In this regard, it is submitted that on receipt of the intimation regarding payment from the opposite party, the matter was referred by the opposite party to its empanelled doctor, who informed vide report dated 30.3.2015 that as per query reply no biopsy was performed. He has further opined that reply given on behalf of the complainant and concerned treating doctor is unsatisfactory. Since any surgical procedure done should have been sufficient radiological (x-ray skull/P.N.S. or C.T. Skull) haematological or hysto-pathological evidence in support of diagnosis which led to surgery, to be considered genuine for medi-claim or medicological purpose. The said expert doctor has further advised to obtain sufficient diagnostic evidence which led to septotirbinoiplasty. Accordingly, detailed letter was written to the LIC i.e. insured in the present case advising the concerned employee to submit diagnostic evidence so that the claim preferred with the opposite party can be processed on merits. However, inspite of said information sent to the LIC, no steps have been taken by the complainant to supply the diagnostic evidence. Therefore, the claim could not be processed on merits and as such complaint filed by the complainant is pre-mature and without any cause of action ; in the light of preliminary objection No.3, it is apparent that there is no question of deficiency in service rather complaint filed by the complainant is premature and without any cause of action. Hence, the relief of interest as well as compensation claimed by the complainant is not at all payable. In fact there is no provision under the Consumer Protection Act to allow any such relief nor there is any agreed clause in the contract of insurance to pay any such interest or compensation. As the complaint filed by the complainant is pre-mature, therefore, the same is liable to be dismissed being without any cause of action. On merits, facts narrated in the complaint have been denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case Sh.Neeraj Brahmi, Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-21 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.P.N.Khanna, Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Sukhdev Singh Gill, Sr.Divisional Manager Ex.OP1 alongwith documents Ex.OP2 to Ex.OP13 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. On the basis of evidence on record, Sh.P.N.Khanna, Advocate counsel for the Opposite Party has vehemently contended that the complaint filed by the complainant is premature and without any cause of action and as such the same is liable to be dismissed. It is the case of the complainant that son of the complainant namely Amritpal Singh was admitted in Khushbir Kalra Memorial Hospital, Ajit Nagar, Amritsar wherein he remained under the treatment of the said hospital w.e.f. 23.8.2014 uptil 26.8.2014. As per the study of the medical record as well as discharge summary of Amritpal Singh it was observed that Amritpal Singh was admitted in Khushbir Kalra Memorial Hospital, Ajit Nagar, Amritsar with c/c of nastla obstruction. He was examined by Dr.Jagmohan Kalra and was diagnosed clinically as a case of DNS with Terbinate hypertrophy and as such, he was operated with Septoturbninoplasty by Ex.rhinoplasty incision under local anathema. All the procedure done in this case was relevant to diagnose made clinical by treating consultant but there was no evidence of any C.T Skull/PNS or atleast X-ray/PNS to confirm diagnose and to know the extent of pathology, as it could be some underlying polypus growth or sinusitheoud nastal obstruction. No evidence of any endosmotically examination which are required under the term 1(e) of the claim documents i.e. requirement of the policy, copy whereof is Ex.C5 and as such it was concluded that the said mediclaim should not be recommended payable unless there is clearance by way of X-ray/ PNS or CT Scan was not done despite patient admitted for four days in the hospital with adequate coverage. The report dated 18.11.2014 was submitted to the Opposite Party and under the circumstances query was raised from Dr.Jagmohan Kalra ENT Spcialist who gave reply to the said query on 19.12.2014 in which it was stated that septotirbhinoplasty was done without any biopsy. As the said reply was unsatisfactory since any surgival procedure done should have sufficient radiological (X-ray skull / PNS or S.T.Skull) haematoligdical or hystopatholigcal evidence in support of diagnosis which lead to surgery to be considered genuine for mediclaim or medio logical purposes. In the light of aforesaid observations it was again observed that this case should not be considered as genuine one under clause 1(e) of Mediclaim Documents requirements. It was also recommended that it was advisable to obtain sufficient diagnostic evidence which lead to septotribinoplasty. The said doctor again submitted detailed opinion with Opposite Party. The opinion of the doctor and observations made by him in his opinion are based on medical record as well as discharge card of the patient who in the light of medical science studied by the said doctor and as such the said expert opinion was correct as per medical jurisprudence. The affidavit as well as reports of the said doctor and query raised by him and reply submitted to the said queries by the complainant and Kalra Hospital have already been exhibited and proved on the court file. In the light of the aforesaid circumstances, intimation was given to LIC to call upon their employee to submit the relevant records. Moreover, the complainant has not supplied any affidavit of the concerned doctor from Khushbir Kalra Memorial Hospital, Ajit Nagar, Amritsar confirming that C.T.Scan nor X-ray nor biopsy of septum were required if so under which procedure. In the absence of the aid affidavit, it is submitted that as the matter is related to medical science and contain complicated questions of facts and law which can not be decided in a summary manner, therefore, this Forum has no jurisdiction to entertain and try the present complaint; rather, it is a fit case to refer the same to the civil court. As far as law pertaining to interpretation of the insurance clauses to be considered by the Court, the same has been discussed at length and it has been concluded that nothing can be added or subtracted therefrom nor the court cannot give any exception or relaxation on the ground of equity. Reliance in this connection can be had on M/s.Suraj Mal Ram Niwas Oil Mills (P) Ltd.-Appellant Vs. United India Insurance Company Limited and another-Respondents 2010(4) RCR Civil Page 845 wherein it has been held that terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy, but we cannot take liberalism to the extent of substituting the words which are not intended. Insurance company not liable to pay any claim. Further reliance can be relied upon M/s.V.K.Kariyana Store Vs. The Oriental Insurance Company Limited & Others 2014(3) CLT 47, wherein it has been laid down that it is well settled principle of law that the parties are bound by the terms and conditions of the Insurance Policy, and none of the parties can seek any relief beyond those terms and conditions. Since in the case in hand, the complainant has failed to comply with the term and condition 1 (e) of the insurance policy in dispute, because they have not supplied X-ray/ PNS or CT Scan despite repeated requests made by the Opposite Party, therefore the claim to the tune of Rs. 29,062/- was not payable by the Opposite Party to the complainant.
7. Moreover, it has been further contended that the insurance policy in dispute was issued in the name of Prem Kumar and his family members, but Amritpal Singh was major at the time of getting the treatment, but however, it was Prem Kumar who has filed the instant complaint which is not maintainable, rather it is Amritpal Singh who should have filed the complaint in his own name. The complaint as such, is also liable to be rejected. On the basis of aforesaid discussion, ld.counsel for the Opposite Party has vehemently contended that the instant complaint is pre mature and therefore, the same may be dismissed accordingly with costs.
8. However, from the appreciation of the facts and circumstances of the case, it becomes evident that no policy document was supplied by Opposite Party at the time of insurance of the employees of LIC of India. It is not disputed that Prem Kumar complainant was an employee of LIC of India and was posted at Branch Office, at City Centre, Amritsar. It is admitted that the policy in question was group insurance policy of the employees of LIC of India including the family of the complainant. No terms and conditions of the insurance policy or insurance policy was supplied to the employees of LIC of India at the time of insuring the employees of LIC of India. In such a situation, the claim of the Opposite Party that the insured persons i.e. employees of LIC of India were bound by terms and conditions of the policy in dispute, is not acceptable. We find support on this point from M/s.Modern Insulators Limited-Appellant Vs. Oriental Insurance Company Limited 2000(1) CPJ page 1 (SC), wherein it has been laid down that Opposite Party can not defeat the claim of complainant on the basis of any alleged terms and conditions which is never formed part of the contract.
9. In this case, in para No.3 of the complaint, it is stated that during the currency of the impugned insurance son of the complainant developed medical problem in his nose/ nasal obstruction . Due to breathing problem, the complainant took his son to Khushbir Kalra Memorial Hospital, Ajit Nagar, Amritsar wherein the son of the complainant was admitted for his treatment on 23.8.2014 and septoturbinoplasty was done. Amritpal Singh was discharged on 26.8.2014 and during the course of said treatment, the complainant spent an amount of Rs.29,062/- on hospitalization charges and medical expenses etc. Copies of medical record and medical bills account for Ex.C6 to Ex.C17. This fact has been admitted by Opposite Party in para No.4 of the written statement and it is not the case of the Opposite Party that son of the complainant was not admitted in the hospital or that he did not obtain any treatment. It is further case of the complainant in para No.4 of the complaint that complainant submitted a claim of Rs.29,062/- to Opposite Party alongwith all requisite original documents for settlement of claim and this fact is also admitted by Opposite Party in the corresponding para of the written statement . Even otherwise also Opposite Party has not challenged the genuineness and authenticity of claim documents supplied to it by the complainant. The complainant has also proved on record certificates Ex.C6 and Ex.C7 dully issued by treating doctor alongwith affidavit of the treating doctor which is Ex.C21 on record. In this case, in para No.4 of the complaint it is stated that Opposite Party demanded X-ray/ scan of son of the complainant and in this respect, when the complainant approached the treating doctor who apprised the complainant that DNS with turbinate hypertrophy is a clinica diagnosis and in this case X-ray and C.T scan are not required and as such the same were not done in this case. In this connection the certificate dated 19.12.2014 Ex.C6 was issued by the treating doctor. Thereafter, the Opposite Party, just in order to delay the matter on false and flimsy ground, asked for biopsy report from the complainant. The complainant again approached the treating doctor who issued certificate Ex.C7 wherein it is specifically mentioned that since septoturbinoplasty was done in the case of patient, so there was no protocol to do biopsy of septum in routine cases of septoturbinoplasty. So biopsy was not done in this case. Both these certificates were duly submitted to the Opposite Party and this fact is admitted by the Opposite Party. Even the treating doctor has also filed his duly sworn affidavit Ex.C21 , who is an ENT specialist, in support of the certificate duly issued by him, in respect of the treatment of son of the complainant conducted by him . The complainant has placed on record discharge card, medical record and medical bills, certificate dated 19.12.1014,which are self explanatory. Opposite Party or its empanelled doctor has not rebutted or controverted the affidavit of the treating doctor and 2 certificates issued by him and the other medical record by way of filing any medical literature on this subject. There is also no evidence that the empanelled doctor has ever treated the son of the complainant at any point of time. In such a situation, the evidence of the doctor treating the patient was required to have been relied by Opposite Party. Reliance in this connection can be placed on Durga Devi Vs. National Insurance Company Limited 2010(4) CPJ 34 (NC), wherein it has been held that opinion of the medical expert who has actually treated the patient should have been relied upon. Further reliance can be had on National Insurance Company Limited Vs. Sardar Kulbir Singh 2010(3) CPJ 276 (NC), wherein it has been laid down that opinion of panel doctor based upon discharge summary is not acceptable. Keeping in view the aforementioned case law, it is opinion of treating doctor which is to prevail as compare to the opinion of panel doctor. Other objections taken by the Opposite Party are of no avail. One of the objection taken by the Opposite Party is that present claim pertains to son of the complainant and as such, the complaint could have only been filed by the son of the complainant only. In the present case, the son of the complainant filed his affidavit Ex.C20 and specifically stated that the complainant i.e. his father is an employee of LIC of India and who is the insured person and the other family members were also covered in the insurance on account of their blood relation with the complainant and there is a relationship of insurer and insured inter se the complainant and the Opposite Party . That being the position it was the complainant , who is competent and authorized to file the present complaint . The present complaint is properly signed, verified and filed by competent and authorized person. The Opposite Party has not filed any counter or additional affidavit to controvert the affidavit of the son of the complainant Ex.C20 and additional affidavit of complainant Ex.C19 . From the evidence on record, the case of the complainant stands proved on record and remained totally unrebutted by Opposite Party.
From the aforesaid discussion, it transpires that the opposite party has been withholding the claim of the complainant for the mediclaim to the tune of Rs.29,062/- . The Opposite Party has valid excuse to delay or prolong the payment of mediclaim to the tune of Rs.29,062/- to the complainant. The objections raised by the Opposite Party that the medi claim furnished in the present case was pre-mature, is also not acceptable. Because the complainant has supplied all the medical record pertaining to the treatment of his son pertaining to Khushbir Kalra Memorial Hospital, Ajit Nagar, Amritsar and other documents i.e. X-ray/ PNS or CT Scan demanded by the Opposite Party, were wrongly demanded by the opposite party. Opposite Party as such, is liable to pay the sum of Rs.29,062/- on account of medi-claim filed by the complainant regarding treatment of his son namely Amritpal Singh alongwith interest @ 9% per annum from the date of filing of the complaint until full and final recovery. The costs of the complaint are assessed at Rs.2000/-. Compliance of this order be made within 30 days from the date of receipt of copy of the order, failing which the complainant shall be at liberty to invoke the jurisdiction of this Forum to get the order executed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 04.07.2016.
